DONALD COOK, Plaintiff and Respondent, v. CITY OF BUENA PARK, Defendant and Appellant.
No. G031326
Fourth Dist., Div. Three
Jan. 28, 2005
Richards, Watson & Gershon, Gregory M. Kunert, Chandra Gehri Spencer and Ginetta L. Giovinco for Defendant and Appellant.
Alvarez-Glasman & Colvin, Arnold M. Alvarez-Glasman and Mathew M. Gorman for League of California Cities as Amicus Curiae on behalf of Defendant and Appellant.
Law Office of Ron Talmo, Ron Talmo; Law Offices of Russell Shields and Russell Shields for Plaintiff and Respondent.
Heidi P. Poppe for California Apartment Association as Amicus Curiae on behalf of Plaintiff and Respondent.
ARONSON, J.--- Donald Cook challenges a City of Buena Park (City) ordinance obliging landlords to undertake eviction proceedings against “all occupants” of a rental unit when the chief of police suspects a tenant has engaged in or permitted illegal drug activity, gang-related crime, or a drug-related nuisance in or near the rental property. Because the ordinance imposes on landlords a substantial risk of erroneous deprivation of property rights through compelled eviction litigation, unwarranted fines and penalties, and countersuits by tenants, we hold the ordinance violates procedural due process. We conclude the procedures employed by the ordinance are constitutionally infirm in three respects: first, the notice requiring the landlord to institute unlawful detainer proceedings provides insufficient information to prosecute the action; second, the 10-day period within which the landlord must commence eviction is too short; and finally, the ordinance requires the landlord to prevail in the eviction action or face fines, penalties, a lien on his or her property, and even misdemeanor punishment. In view of these failings, we affirm the trial court‘s judgment striking down the ordinance as unconstitutional.
I
FACTUAL AND PROCEDURAL BACKGROUND
Cook rented an apartment to Steve Bicksler beginning in 1997. On August 5, 2000, police cited Bicksler‘s roommate, Douglas Dixon, for possession of drug paraphernalia in violation of
The ordinance provides that landlords “shall not cause or knowingly permit: [[] A. Any premises under his or her control to be used or maintained
If the chief of police determines the landlord has violated this provision, he may send written notice to the landlord “identify[ing] the offending tenant(s), [the] unit number if applicable, . . . the specific violation(s), and shall state the date(s) and time(s) of any observed criminal activity and any resulting arrest(s), and shall further state that as to such tenant(s) the landlord is required to serve and diligently prosecute either a three day notice to quit or a thirty day notice to vacate.” (
The ordinance also provides for “Recovery of possession by [the] landlord” as follows: “Grounds for Eviction. Notwithstanding any provision of the Buena Park City Code to the contrary, a landlord may bring an action to recover possession of a rental unit upon any of the following grounds: [[] 1. The tenant is committing or permitting to exist any illegal drug activity, gang-related crime, or drug-related nuisance on the premises; or [[] 2. The tenant has been convicted of a crime wherein the underlying offense involves illegal drug activity, drug-related nuisance activity or a gang-related crime on the premises.” (
The landlord may appeal the chief of police‘s determination that he or she is in violation of the ordinance, provided the appeal is taken within 10 days of the notice of violation. The appeal is heard by the city manager, “who shall cause the matter to be set for hearing. Written notice of the date and time of such hearing shall be served by first class mail addressed to the landlord‘s last known business address. Following the conclusion of the hearing, the city manager may affirm, reverse or reverse subject to conditions, the police chief‘s determination of violation. The city manager‘s decision shall be based upon written findings and shall be final.” (
If the landlord fails to comply within 10 business days of the police chief‘s notice or to file an appeal of the notice to the city manager within 10 days, “then the city may file an action for injunctive relief or utilize any other remedy provided by law to compel compliance, including but not limited to, all remedies available to abate a nuisance.” (
On October 3, 2000, within 10 days of receiving the chief of police‘s notice, Cook appealed to the city manager. The city manager denied the appeal and Cook sought relief in the Orange County Superior Court, challenging the constitutionality of the ordinance. Cook and the City filed cross-motions for summary judgment on whether the ordinance violated procedural due process, substantive due process, equal protection, free speech, freedom of contract, or the “inalienable rights” and jury trial clauses of the state Constitution (
II
DISCUSSION
The City argues the trial court erred in concluding the ordinance violates substantive due process. Cook contends vaguely that “[s]ubstantive due process is implicated by violation of the rights set forth throughout the pleadings. . . .” As best we can discern, Cook suggests that within the penumbra of “rights includ[ing] enjoying and possessing property and privacy, and freedom of association,” there lies a substantive due process right guarding against the ordinance‘s terms. “So-called ‘substantive due process’ prevents the government from engaging in conduct that ‘shocks the conscience,’ [citation], or interferes with rights ‘implicit in the concept of ordered liberty,’ [citation].” (United States v. Salerno (1987) 481 U.S. 739, 746 [95 L.Ed.2d 697, 107 S.Ct. 2095] [quoting Rochin v. California (1952) 342 U.S. 165, 172 [96 L.Ed. 183, 72 S.Ct. 205], and Palko v. Connecticut (1937) 302 U.S. 319, 325-326 [82 L.Ed. 288, 58 S.Ct. 149], respectively].) As observed by the high court, “guideposts for responsible decisionmaking in this uncharted area are scarce and open-ended” (Collins v. Harker Heights (1992) 503 U.S. 115, 125 [117 L.Ed.2d 261, 112 S.Ct. 1061]), and we therefore look first to see whether the appeal may be resolved on other grounds.
More to the point, as noted by amicus curiae California Apartment Association (CAA), the landlord undoubtedly has a property interest in collecting rent under the lease with the tenant, and in avoiding the lien provision and fines imposed by the ordinance. Additionally, because the ordinance compels the landlord to undertake eviction proceedings, the costs associated with such litigation directly impact the landlord financially. In short, principles of due process apply because the ordinance affects substantial property interests.
“[O]nce it is determined that the Due Process Clause applies, ‘the question remains what process is due.’ [Citation.]” (Loudermill, supra, 470 U.S. at p. 541.) “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” (Morrissey v. Brewer (1972) 408 U.S. 471, 481 [33 L.Ed.2d 484, 92 S.Ct. 2593].) “[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” (Mathews v. Eldridge (1976) 424 U.S. 319, 335 [47 L.Ed.2d 18, 96 S.Ct. 893].)
Here, we have identified the landlord‘s important property interests, but the City‘s interest in combating “illegal drug activity, drug-related nuisance activity [and] gang-related crime on the premises” (
The ordinance is usefully evaluated in light of a similar Health and Safety Code provision establishing a pilot program for unlawful detainer actions in portions of Alameda, Los Angeles, and San Diego Counties. (
But before the city prosecutor or attorney may file the action, notice must first be given to the property owner requiring the owner to pursue the unlawful detainer remedy under Code of Civil Procedure section 1161, subdivision (4). (
We express no opinion on the constitutionality of the pilot program. Set against its example, however, the inadequacies of the ordinance stand out in bold relief. The ordinance violates procedural due process, creating an unreasonably high risk of erroneous deprivation of the landlord‘s property interests in three particular respects.
First, the notice provided by the chief of police is insufficient to assure a reasonable chance of success in the unlawful detainer action, thus exposing the landlord to unwarranted litigation costs, as well as the possibility of a tenant countersuit for forcible entry if the landlord has attempted to take possession, or malicious prosecution or abuse of process if the owner lacked probable cause to bring the action. The pilot program requires notice to the owner that includes “sufficient documentation establishing a violation of the nuisance or illegal purpose provisions of” the unlawful detainer statute. (
The terms of notice under the ordinance fail to require sufficient specificity to aid the landlord in the unlawful detainer action. The alleged offender‘s identity, unit number, and the mere “date(s) and time(s)” of any alleged criminal activity or arrest do nothing to establish a nuisance or illegal purpose. Notice of the “specific violation(s)” presumably alerts the landlord which prong of the ordinance the City is relying upon, i.e., “illegal drug activity, gang-related crime, or drug related nuisance,” but the ordinance requires no specificity as to these activities that would aid the landlord in making his unlawful detainer case.
The ordinance‘s second, and related, failing is its onerous requirement that the landlord institute the unlawful detainer action within just 10 days of receiving notice from the chief of police. This is not nearly enough time for the owner to bolster his evidence if the City‘s notice is lacking or to otherwise investigate the matter and develop his case. We note that the pilot program‘s notice period was recently increased from 15 days to 30 days. Since the pilot program is not under review, we express no opinion on whether 15 days or 30 days is constitutionally adequate. It suffices to say that 10 days is far too short.
Finally, the ordinance violates due process because it requires the landlord to prevail in the unlawful detainer action. The owner must “diligently prosecute” the action, and the ordinance defines that term to mean “such prosecution by the landlord as is necessary to cause the subject rental unit to be completely vacated by all occupants.” (
For all of the foregoing reasons, the ordinance violates procedural due process and cannot stand.3
III
DISPOSITION
The judgment is affirmed.
Ikola, J., Bedsworth, Acting P. J., concurred.
BEDSWORTH, Acting P. J., Concurring.---I share the misgivings of my colleagues about the procedural due process problems of this ordinance. I fully agree it does not pass constitutional muster in regard to those considerations. But I would be remiss if I did not also express my concern the ordinance may have more carcinogenic problems than we discuss in this opinion.
I am not yet convinced this ordinance does not suffer from other, more fundamental constitutional infirmities than procedural due process. I am concerned, inter alia, about its sweeping requirement that all occupants of the premises must be evicted for the sins of one, its disparate treatment of property owners and renters (our record reflects no nuisance abatement efforts against the owners of property for similar crimes), and the Damoclean substantive due process issue which hangs over this statutory scheme.