Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2009-00084570CU-WM-CTL, Richard E.L. Strauss, Judge.
O'ROURKE, J.
Plaintiff and appellant Lynne Thorp, in propria persona, appeals from a judgment of dismissal entered after the trial court denied her petition for writ of administrative mandate and request for declaratory relief. In her petition, Thorp sought to set aside an administrative enforcement order finding her in violation of the San Diego Municipal Code for failing to submit plans, obtain permits and get final inspection approvals for certain property improvements. She also sought to declare certain civil penalties and administrative costs null and void. Respondent City of San Diego (City) has filed a motion to dismiss Thorp's appeal as frivolous and intended solely to delay collection of penalties and fines. We ordered the motion be heard concurrently with this appeal. We grant City's motion to dismiss the appeal and to impose sanctions, as we conclude that dismissal and sanctions are appropriate for this frivolous appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In the "Statement of Facts" section of her brief, Thorp sets forth her version of the circumstances, but the factual assertions she makes - including as to the purported misconduct of City employees, her communications and actions with City, and her purported completion of corrective work or repairs - are entirely devoid of record support. We state the background facts from the evidence and testimony in the administrative record, as well as the administrative hearing officer's findings of fact, which Thorp does not challenge.
In March 2008, Gene Mavis, an inspector with City's Development Service Department, Neighborhood Code Compliance Division (NCCD), went to view a piece of property on 40th Street to investigate a code violation complaint. While there, he observed construction work being performed without permits at Thorp's property, 3115 40th Street. On April 1, 2008, Mavis sent Thorp a notice requesting her voluntary compliance to correct the Municipal Code violations. On April 8, 2008, Mavis returned to the site, where he saw the work continuing. Over the next few days, he again called Thorp's residence, wrote an official inspection notice, took pictures and called again to leave a message with Thorp reminding her that permits were required.
Mavis left additional messages at Thorp's residence on April 16, 2008, and April 23, 2008, requesting return calls and telling her if he did not hear from her, he would begin the process of obtaining an inspection warrant. On April 24, 2008, Mavis returned to the site, where the work was continuing. After the worker at the site refused Mavis entrance, Mavis advised him that work should stop until permits were obtained. The next day, Mavis called Thorp's residence again and drove to her residence in Escondido where he spoke with Thorp, who told him she had received his messages but that no permit was required and the government had no right to go onto her property. She claimed to be doing minor remodeling - kitchen cabinets and painting - after having evicted a tenant. Thorp refused Mavis's request to inspect the home's interior.
After Thorp complained to her city council member, Mavis's supervisor, Toni Rodin, called Thorp and gave her a phone number where Rodin could be reached. Thorp, however, did not return Rodin's call.
In May 2008, Mavis and City Attorney Investigator Dennis Smith obtained an inspection warrant for Thorp's property allowing for immediate execution without Thorp's presence. They went to the property and attempted to conduct the inspection, but no one was there. Several days later, they again went to the property, where Thorp allowed them entry. Mavis took pictures and observed, among other things, electrical, plumbing and drywall work requiring permits.
More specifically, Mavis observed a new service riser, new electrical wiring and copper water lines and other pipes, a new water heater, new plumbing in the bathroom, a new water supply line at the kitchen sink, a new drain, a new gas valve, new recessed can lights, new electrical gang boxes and new drywall.
On May 28, 2008, City served Thorp with a civil penalty notice and order regarding the code violations observed at Thorp's property. The order required Thorp to correct the cited violations by submitting plans and obtaining required permits and inspection approval for all unpermitted work by July 1, 2008. City warned Thorp that her failure to comply would result in ongoing assessment of civil penalties at a rate of $200 per day until correction of the violations.
Thorp met with Rodin on June 27, 2008, at NCCD offices. Thorp claimed she had done only aesthetic work and installed a new water heater, which Rodin informed her would need a permit. Thorp also claimed to be in the real estate industry and told Rodin she had hired consultants who she thought knew what permits to obtain. That day, Thorp obtained electrical, mechanical and plumbing permits for the new wall heater, water heater and service upgrade for the outside electrical main panel. However, she did not obtain permits for all of the new drywall or new electrical wiring inside the house.
It appears that when the permits were initially issued, they contained a single digit error, listing Thorp's property address as 3114, rather than 3115, 40th Street. At the administrative hearing, Thorp testified she called for inspections to be conducted in early July and early August, with no response. The address had been corrected as of August 29, 2008.
Building inspectors inspected the work performed at Thorp's property on August 7, 2008, and August 29, 2008. On August 29, 2008, building inspector Pat Joy instructed Thorp that specified electrical corrections were required and that she should call for reinspection.
On October 3, 2008, City served Thorp with a notice of a civil penalty hearing to take place on October 13, 2008. Thorp thereafter sent a letter advising City's code enforcement coordinator, Melody Negrete, that she could not attend the hearing, that she had proceeded to obtain the permits and inspections, and she was "at a complete loss" to understand the hearing's purpose. She asked that the coordinator contact her by telephone to discuss the matter rather than reschedule the hearing. On October 14, 2008, City served a rescheduled notice for the hearing to October 22, 2008.
Joy returned to Thorp's property on October 16, 2008. With the exception of the rough mechanical work, which passed inspection, the work either partially passed or failed to pass inspection. Joy again left Thorp a list of corrections for the plumbing and electrical permits, with instructions that she pay a reinspection fee for the electrical permit and call for reinspection as to both permits.
Thorp's code compliance hearing took place on October 22, 2008, with Thorp, Mavis, Rodin, and Negrete present. At the administrative hearing, Thorp was given the opportunity to ask questions of Rodin and Mavis, but she did not. She asserted that her plumbing and bathroom had not been remodeled or redone with the exception of replacing a pipe and faucet.
On November 11, 2008, the administrative hearing officer issued her determination - supported by detailed factual and legal findings - that Thorp had violated the municipal code and ordered her to pay $10,400 in civil penalties (which had been assessed at a reduced rate of $100 per day on grounds some of City's claims were not supported sufficiently by evidence) and $2,273.57 in administrative costs. The hearing officer ordered that civil penalties of $7,400 would be stayed if Thorp submitted plans, obtained permits and obtained final inspection approvals for all non-permitted work no later than January 22, 2009. City served Thorp with notice of the hearing officer's order on December 4, 2008.
The administrative hearing officer found, among other things, that "[o]n May 28, 2008, the Division issued and served a Civil Penalty Notice and Order for the violations observed at the Property. The Notice of Violation cited the following San Diego Municipal Code ("SDMC") violations: SDMC Sections 121.0302(a) and (b)(1), 129.0202(a), 129.0302, 129.0314, 129.0402(a), 29.0405(c) and 54.0208. The cited code violations relate to work without required permits and inspections. Specifically: (1) Electrical - new electrical wiring throughout the house with switches and receptacles; new electrical service panel with conduit and riser; new recessed can lighting; new electrical conduit and receptacles; extension cords used for fixed wiring. (2) Plumbing - new copper piping and black ABS piping throughout the residence; new water heater with gas piping; new gas wall furnace with new gas piping. (3) Structural - removal of a bedroom; old plaster removed and new drywall installed on interior walls; tile on shower walls placed on green board drywall without approved vapor barrier; miscellaneous refuse and construction debris in the rear yard. [¶] The Civil Penalty Notice and Order ordered correction of the cited violations by July 1, 2008." The hearing officer found that "[e]lectrical, plumbing, and mechanical work failed to pass inspection, with the exception of rough mechanical work that passed inspection on October 16, 2008.... At the time of the inspection on August 29, 2008, Inspector Pat Joy documented the need for numerous corrections required for the water heater/electrical upgrade.... At the time of the inspection conducted on October 16, 2008, Inspector Joy documented the need for numerous required electrical and plumbing corrections." The hearing officer also ruled that "[a]ll notices were given properly and duly served on the Respondent, including the Notice of Civil Penalty Hearing on October 3, 2008, which date was at least ten calendar days prior to the original hearing date. At the hearing, Respondent affirmed that she received sufficient notice for the rescheduled hearing held on October 22, 2008."
On March 4, 2009, Thorp filed a verified petition for writ of administrative mandate and complaint for declaratory relief. Asserting that Mavis had waged a "campaign of harassment" toward her in connection with his efforts to contact her and document her alleged violations, Thorp alleged that all of the claimed code violations had been repaired by the mandatory hearing date, but that City "refused to acknowledge" her proof of corrections so as to collect fines without providing her notice and due process of law. She alleged City had violated legal duties by "exceeding its jurisdiction, by posting on her property an incorrectly completed notice of violation(s) and by the waging of a continued campaign of harassment... causing her distress and fear." She alleged City denied her due process by refusing to continue the code violation hearing so as to allow her to obtain a final sign off approval of the alleged violations, failed to provide adequate notice, and imposed "unfair and unjust" fines and penalties. She alleged the hearing officer "dismissed" her evidence and testimony without good cause. Thorp sought a judicial declaration that City denied her rights to due process by failing to provide her with notice and a fair hearing. She asked the court to set aside the hearing officer's determination and declare the City's fines null and void.
Thorp filed a motion in support of her request for writ relief. City answered Thorp's petition and opposed the motion on procedural grounds and on the merits. In part, it pointed out Thorp's petition should be denied on the sole ground that she had failed to procure the administrative record, and thus could not meet her burden to show a prejudicial abuse of discretion. City nevertheless lodged the administrative record to demonstrate Thorp's petition had no merit.
Thorp then filed a document entitled "Petitioner's Replication to Objection to Writ of Administrative Mandamus and Complaint for Declaratory Relief" consisting of an additional declaration reciting Thorp's version of the facts surrounding her asserted attempts to remedy the alleged code violations. She claimed that Mavis had "manufactured" violations, and characterized the situation as a "witch hunt."
The superior court denied Thorp's petition and cause of action for declaratory relief. It observed Thorp did not provide the administrative record so as to meet her burden to show the administrative proceedings were unfair or in excess of jurisdiction, or that the hearing officer's ruling was a prejudicial abuse of discretion. It ruled Thorp had failed to cite to the record in any way that would support her positions. It found Thorp had not shown City exceeded its jurisdiction, failed to provide proper notice, violated her due process rights or exercised any abuse of discretion. It reached the same result on Thorp's cause of action for declaratory relief, which was based on the same grounds as her petition.
City served Thorp with notice of the court's ruling. It also filed a cost memorandum seeking additional $1,078 in administrative costs. On August 17, 2009, the superior court entered a judgment of dismissal and for the requested costs in City's favor.
Thorp filed the present appeal.
Thorp's September 22, 2009 notice of appeal states she is appealing from an "order after hearing on motion for writ of mandamus/mandate." We shall construe her notice of appeal as from the August 17, 2009 judgment of dismissal. (Cal. Rules of Court, rule 8.100(a)(2).)
DISCUSSION
I. City's Motion to Dismiss Appeal
City asks that we dismiss Thorp's appeal as frivolous and brought for the improper purpose of delay, and seeks $13,300 in monetary sanctions for City's efforts, as well as $6,000 payable to this court's clerk. City sets out a detailed summary of the factual circumstances, the review standards for writs of administrative mandate, and argues under these standards Thorp's appeal indisputably has no merit because in the trial court, she failed to show City exceeded its jurisdiction, did not provide proper notice, violated her due process rights, or abused its discretion. It argues the total lack of merit in her case as well as her history of avoidance and delay, including empty threats to file for bankruptcy, shows Thorp is appealing solely to delay having to pay the penalties and costs she owes. City maintains the circumstances here are similar to those in Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, in which the appellate court found a physician's appeal totally without merit and awarded $10,000 in sanctions.
We shall grant City's motion. Thorp's appellate brief consists of sections entitled "Statement of the Case, " "Statement of Appealability, " "Statement of Facts, " "Standard of Review, " and "Conclusion." In each section, particularly that purporting to be her factual summary, her factual assertions and arguments in large part lack citations to the record or citations to any case authority. Her briefing is long on invective; she characterizes Mavis's actions as "inappropriate and harassing, " claims he was "stalking her and her property" and asserts he has "apparent and obvious mental health issues...." She maintains the administrative hearing was a "sham without any identifiable rules or process and no appeal within that venue." None of the sections of Thorp's brief contain any discussion or recognition of the applicable standards of appellate review of an order denying a petition for writ of mandate; Thorp merely repeats arguments and matters that she unsuccessfully bought before the superior court, or raises entirely new issues, such as what appears to be a claim of bias on the part of the court in failing to consider her "replication." Her papers do not at all address the superior court's reasoning, nor do they explain how she met her burden on her writ petition even though she had failed to provide the superior court with the record of the administrative proceedings. Out of the 19 pages of her brief, her main argument section, which is entitled "Standard of Review, " is a single page.
Thorp's statement of facts section takes up the majority of her brief, beginning on page 3 and concluding on page 18.
In the most merits-related arguments we can find (at various points in her "Statement of the Case, " "Statement of Facts" and "Standard of Review" sections), Thorp suggests that City failed to abide by section 12.0804 of its charter and provide her with a detailed description of her alleged violations, the exact requirements to repair and correct the violations, and a time frame for each correction. She also asserts the trial court ignored her replication: "In this case the Court's decision involved the exercise of its discretion as it failed to include Petitioner's Replication in its consideration of the facts in the case. Petitioner believes that if the Court would have exercised caution and had been thorough in its review of all the facts of the case, a very different and fair more fair [sic] and just judgment would have been entered. The judgment entered was not in favor of Petitioner and in that regard, Petitioner was damaged by the Judge's order." Thorp then, without explanation, quotes from Code of Civil Procedure section 475. This is the entirety of her appellate argument. None of these points are supported by any case authority or reasoned substantive argument or analysis related to the facts or circumstances before us. And as noted, her statement of facts is not supported by the record.
An appeal is frivolous "only when it is prosecuted for an improper motive - to harass the respondent or delay the effect of an adverse judgment - or when it indisputably has no merit - when any reasonable attorney would agree that the appeal is totally and completely without merit." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650 (Flaherty).) California courts apply both objective and subjective standards to determine whether an appeal indisputably has no merit. "The subjective standard looks to the motives of the appealing party and his or her attorney, while the objective standard looks at the merits of the appeal from a reasonable person's perspective. [Citation.] Whether the party or attorney acted in an honest belief there were grounds for appeal makes no difference if any reasonable person would agree the grounds for appeal were totally and completely devoid of merit." (Cox v. County of San Diego (1991) 233 Cal.App.3d 300, 313 (Cox), overruled on other grounds in Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 8.)
We hold that Thorp's deficient briefing, combined with her lack of analysis pertinent to the questions at hand on appeal from a judgment denying her petition for writ of administrative mandamus, renders her appeal frivolous under the Flaherty standard. (See, e.g., Pierotti v. Torian (2000) 81 Cal.App.4th 17, 32 & fn. 9 [appellant's utter failure to discuss pertinent legal authority, preparation of grossly inadequate records, and attempt to assassinate opposing party's character based on facts finding no support in the record demonstrated that appeal was subjectively presented for an improper purpose and solely for delay, not because of any good faith belief in the appeal's validity]; see also Leslie v. Board of Medical Quality Assurance, supra, 234 Cal.App.3d at pp. 120-121 [appeal found frivolous and sanctions appropriate where the plaintiff medical doctor presented no pertinent mitigation evidence at his administrative hearing, but only meritlessly sought to attack conclusive evidence of a criminal conviction; the plaintiff had already been told his arguments were groundless but persisted in filing the frivolous appeal repeating the arguments].)
Thorp is required to demonstrate whether the trial court proceeded without or in excess of jurisdiction, whether there was a fair trial, and whether there was any prejudicial abuse of discretion, i.e., whether the hearing officer did not proceed in the manner required by law and whether the hearing officer's findings do not support the order or are not supported by the evidence. (See T.G. Oceanside, L.P. v. City of Oceanside (2007) 156 Cal.App.4th 1355, 1370.) We are required to view the facts in a manner that resolves all conflicts and draw all reasonable inferences in favor of those findings. (Id. at p. 1371; Sasco Elect. v. California Fair Employment and Housing Com. (2009) 176 Cal.App.4th 532, 535.)
We are aware that sanctions should be sparingly used to "deter only the most egregious conduct" (Flaherty, supra, 31 Cal.3d at p. 651), and that merely because an appeal lacks merit does not, alone, establish it is frivolous. (See Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1422.) This appeal is beyond merely lacking in merit. We conclude no reasonable attorney could have contemplated that Thorp's appeal of the trial court's judgment of dismissal would be meritorious under all of the facts and circumstances of this case.
II. Sanctions on Appeal
City has requested that we order sanctions against Thorp under California Rules of Court, rule 8.276(a)(1), and Code of Civil Procedure section 907. It seeks $13,300 in sanctions against Thorp, and also urges us to impose an additional $6,000 award against Thorp payable to the court clerk, for this court's expenditure of time and resources in processing, reviewing and deciding the appeal. Thorpe was apprised of this court's intention to consider the issue of sanctions by letter from the clerk dated December 31, 2009. (Cal. Rules of Court, rule 8.276(c).)
Sanctions for filing a frivolous appeal are intended to compensate for expenses occasioned by the appeal and to deter similar conduct in the future. (Flaherty, supra, 31 Cal.3d at p. 647.) The amount of attorney fees reasonably incurred in responding to a frivolous appeal is one possible measure of sanctions. (See In re Marriage of Economou (1990) 223 Cal.App.3d 97, 108.) Another possible measure is the cost imposed on the court system by the waste of time and resources in processing and deciding a frivolous appeal. (See Keitel v. Heubel (2002) 103 Cal.App.4th 324, 343 ["A recent conservative estimate of the cost to the state of processing an average civil appeal is $6,000."].)
Here, in its motion for sanctions City proffered evidence that it has spent 38 hours responding to Thorp's appeal and preparing its motion to dismiss and accompanying papers. The deputy city attorney on the matter, who has been in practice for 12 years, estimates her reasonable hourly rate based on her expertise and experience to be $350. We find $7,600 to be a reasonable award of attorney fees incurred in connection with this frivolous appeal. (Code Civ. Proc., § 907.) In light of the undue burden this appeal has placed on the legal system and the consumption of this court's precious resources, we also impose an additional $3,000 sanction payable to the clerk of this court.
DISPOSITION
The appeal is dismissed. We find Thorp's appeal to be frivolous and assess sanctions against her as follows: (1) $7,600, due and payable to the City of San Diego within 30 days of the issuance of the remittitur in this matter; and (2) $3,000 for the cost to the taxpayers of processing this frivolous appeal, which sum shall be due and payable to the clerk of this court also within 30 days of the issuance of the remittitur. In addition to the award of sanctions, City is entitled to its costs on appeal.
WE CONCUR: NARES, Acting P. J., HALLER, J.