29 Cal. App. 5th 348
Cal. Ct. App. 5th2018Background
- Owner Michael Rasooly possessed a vacant industrial building in Oakley that the City concluded was unsafe and issued a repair-or-demolish notice in 2015; Rasooly appealed and later filed a writ of mandate after the City rejected his appeal.
- The parties negotiated: the City agreed to rescind the 2015 notice conditioned on Rasooly submitting revised plans and completing work by April 15, 2017; communications thereafter were sporadic and Rasooly did not complete the work.
- On March 1, 2017 the City issued a new repair-or-demolish notice (2017 Notice), posted it on the property, and sent a certified mailing to Rasooly’s post-office-box address of record; the mailing was returned undelivered.
- Rasooly learned of the 2017 Notice only after the 20-day administrative appeal period had lapsed and filed an amended petition for writ of administrative mandamus challenging the 2017 Notice.
- The City moved for judgment under Code Civ. Proc. § 1094 on the ground Rasooly failed to exhaust available administrative remedies; the trial court granted the motion and dismissed the petition.
- The Court of Appeal affirmed, holding the City’s combined use of certified mail to the address of record and posting satisfied IPMC and due process requirements and Rasooly therefore had to exhaust administrative appeal remedies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rasooly’s writ may proceed absent pursuing the administrative appeal | Rasooly argued he lacked actual notice of the 2017 Notice and thus was excused from exhaustion | City argued exhaustion is jurisdictional and Rasooly did not pursue the available 20‑day administrative appeal | Held: Exhaustion is required; Rasooly failed to exhaust and petition was dismissed |
| Whether service complied with IPMC §107.3 (mailing/posting) | Rasooly contended IPMC requires mailing first and posting only after mail is returned, so concurrent mailing+posting was defective | City argued §107.3 lists acceptable alternate methods; mailing to address of record and posting both are permissible and sufficient | Held: §107.3 provides alternative acceptable means; concurrent mailing and posting valid and constitutes service |
| Whether the notice procedure violated constitutional due process | Rasooly argued "nail & mail" without personal service is constitutionally insufficient for notice | City argued certified mailing to address of record and posting were reasonably calculated to give notice and thus meet due process | Held: Due process does not require actual notice; certified mailing to address of record plus posting satisfies constitutional notice absent evidence of deliberate evasion by the City |
| Whether simultaneous posting would prejudice appeal timing under local code | Rasooly suggested sequential posting after returned mail would have extended appeal time | City observed municipal appeal rules tie appeal time to service date and concurrent methods avoid unfair timing issues | Held: Sequential requirement would create internal inconsistency; concurrent mailing/posting avoids timing problems and is reasonable |
Key Cases Cited
- Dunn v. County of Santa Barbara, 135 Cal.App.4th 1281 (de novo review appropriate for motion under Code Civ. Proc. §1094)
- Ghirardo v. Antonioli, 8 Cal.4th 791 (standard of review on questions of law)
- Metromedia, Inc. v. City of San Diego, 32 Cal.3d 180 (rules for municipal ordinance interpretation)
- Mullane v. Central Hanover Tr. Co., 339 U.S. 306 (due process requires notice reasonably calculated to inform interested parties)
- Evans v. Department of Motor Vehicles, 21 Cal.App.4th 958 (certified/registered mailing to address of record may satisfy due process)
- Miller Family Home, Inc. v. Department of Social Services, 57 Cal.App.4th 488 (actual notice not required where notice by mail to record address was sent)