City of Foster City v. Karnazes
Filed 7/20/12
City of Foster City v. Karnazes CA1/1
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
ONE
CITY OF
FOSTER CITY,
Plaintiff and Respondent,
v.
ELIZABETH
KARNAZES,
Defendant and Appellant.
A128542
(San Mateo County
Super. Ct. No. CIV 476835)
Elizabeth
Karnazes appeals from three orders pertaining to the enforcement of a
Foster City (the City) in which she agreed to bring her residence into
compliance with the City’s fire, safety, and health codes. We reverse the trial court’s order allowing
the City to take video and photographs during a compliance inspection of
Karnazes’s home, and dismiss her other appeals.
BACKGROUND
The
City initiated this code enforcement action against Karnazes in
September 2008, alleging the interior of Karnazes’s home and garage
contained a large amount of debris and clutter which created health, safety,
and fire hazards to the public in violation of the City’s public nuisance and
fire ordinances. The complaint further
alleged Karnazes had refused to allow the fire chief or his designee to inspect
the premises despite two inspection warrants issued by the court in June and
July 2008. The City sought a preliminary
and permanent injunction requiring Karnazes to correct “those conditions which
constitute a health, safety and fire hazard; specifically by removal of
combustible materials stockpiled in the interior of the premises, including the
garage,” along with other relief.
Karnazes, an attorney, represented herself in pro. per. in the
action.
In
October 2008, the City and Karnazes entered into a settlement agreement, which
was subsequently entered as an order of the court in December 2008. Under paragraph No. 5 of the agreement,
Karnazes agreed to bring the house into compliance with City ordinances by June
15, 2009, and to permit the City’s fire chief or his representative to inspect
the interior of the house on or about that date, or at a mutually agreed time
before that date, to verify compliance.
The agreement provided Karnazes further time to correct any issues
identified in the final inspection, and gave the City a right to re-inspect
after that time. Referring to the
inspection the parties agreed would occur on or before June 15, 2009, paragraph
No. 4 of the settlement agreement stated:
“No photographs, videos, or other recordings may be made by the [City]
or its representative during that inspection.”
Karnazes insisted on the no-recording language, fearing the photos would
be used against her in other litigation in which she was involved and to “hurt
[her] in the eyes of the court and of the public.”
The
settlement agreement further provided in paragraph No. 7 that this case would
be stayed by order of the court “until the completion of the inspection, on or
about June 15, 2009, or unless either party violates the terms of this
agreement.”
title="">[1] The agreement included the following
enforcement language: “If this agreement
is violated, either party may move the court for enforcement under [Code of
Civil Procedure section] 664.6.”
If both parties complied with the agreement, the entire action was to be
dismissed with prejudice.
The
City’s efforts to schedule an inspection by June 15, 2009, or at any later time
in 2009, proved to be futile. By letter
of June 3, 2009, Karnazes unilaterally granted herself a 60-day extension of
the June 15 inspection date. Throughout
the rest of the year, Karnazes continued to offer excuses and seek
extensions. On December 3 and 4, 2009,
Karnazes left telephone messages with the City’s counsel requesting the City
send someone to conduct a “pre-inspection” during the week of December 7, 2009,
and tell her what needed to be done for her home to comply with the settlement
agreement.
on December 10 for a pre-inspection as she had requested, Karnazes said the
pre-inspection could not be done before December 14. When the City tried to schedule the
pre-inspection on December 16, Karnazes advised she was leaving town on the
15th for the holidays and would send correspondence with available dates in
January. She failed to do so. Two more scheduled pre-inspections were
postponed by Karnazes in February and March 2010. Finally, the parties scheduled a
pre-inspection for March 25, 2010, and Karnazes agreed to schedule the final
inspection for May 5, 2010 at 4:00 p.m.
Although Karnazes attempted to postpone the March 25 pre-inspection at
the last minute, the City declined.
The
City fire chief inspected Karnazes’s home on March 25, and sent Karnazes a
letter on April 2, 2010, detailing the work she needed to do to comply with the
settlement agreement. The chief advised
Karnazes: “[T]he amount of materials
stored in your home constitutes a fire hazard, potential structural hazard and
safety hazard.” He reported observing
piles of boxes, clothes, and other items filling all major rooms of the house
as well as the garage. Piles in some
rooms reached more than 10 feet in height.
Some rooms were completely inaccessible due to the debris, while other
areas were accessible only through narrow paths or by climbing over boxes and
bags filled with clothing and other items.
The letter explained: “The amount
of combustible materials, packed so tightly into the majority of the rooms of
the home and the garage, if ignited would result in an extremely hot,
fast-spreading fire that would be extremely difficult to suppress.” According to the fire chief, responding
firefighters would have a difficult time accessing the home to fight such a
fire and the combustible materials within would pose a danger to them as well
as to neighboring homes. Karnazes denied
her house was in violation of any laws.
On
March 19, 2010, Karnazes served notice as her own attorney that she would be
unavailable from March 30 through April 25, and from June 6 through June
27. On April 29, the City brought
an ex parte application to amend the settlement agreement to allow
photographing and videotaping of the May 5 inspection or, in the alternative,
for an order shortening time for the court to hear such a motion. On May 4, following an ex parte hearing on
the application, the court vacated the May 5 inspection so it could be
rescheduled after the date set for hearing the City’s motion to amend, which it
set for May 17. A written order granting
the application was filed on May 5.
Karnazes
addressed the court at length at the May 17 hearing, objecting to having to
respond to the City’s motion on shortened time and expressing opposition to the
City photographing or videotaping the interior of her house. Karnazes also vehemently opposed any attempt
to schedule a final inspection to occur before she left on the trip planned for
June 6 to June 27. She stated in
relevant part: “If you do that, your
honor, then you might as well burn the house down . . . . There is no
way in the world I could do whatever [the fire chief] wants in this
. . . outrageously picky and inappropriate letter by June 1st. I couldn’t even come close to cleaning out my
entire house . . . [¶] . . . [¶] [An inspection] would fail. What is the point” She asked the court to postpone the
inspection until the end of the summer “before the rainy season starts again,”
and reiterated the house would certainly “flunk” the fire chief’s requirements
if the inspection went forward before she left town.
Following
the hearing, the court deemed the City’s motion to be a motion to enforce the
settlement agreement under section 664.6, and ordered (1) the final
inspection of Karnazes’s home go forward on May 19, 2010 at 4:00 p.m.; (2) the
City be permitted to photograph and
videotape the May 19 inspection; (3) the fire chief file and serve a letter by
the morning of May 21, detailing what steps Karnazes needed to take, if any, to
bring her home into compliance with the settlement agreement; and (4) the
parties return for a hearing on the afternoon of May 21. On May 18, Karnazes filed a notice of appeal
from both the order on the City’s motion to enforce the settlement agreement
and the earlier order shortening time entered on May 5.
No
inspection took place on May 19. Fire
department employees who attempted to inspect Karnazes’s home on that date
found padlocks on the gates to the entrance of her home and a “No Trespassing”
note posted on the gate. The parties
returned to court on June 1 for a further hearing on the motion to enforce the
settlement agreement. Following that
hearing, the court found Karnazes had not permitted a final inspection as
required by the settlement agreement to determine whether her home had been
brought into compliance with law and her compliance therefore remained
unestablished. The court (1) ruled
Karnazes’s appeal stayed only enforcement of the May 20 order and nothing more,
(2) ordered the stay agreed to as part of the settlement agreement lifted, and
(3) permitted the City to proceed to trial of the action and established
procedures for the setting of a trial date.
A written order reflecting these rulings was entered on June 4, 2010.
Karnazes
filed an amended notice of appeal on
June 11, 2010, purporting to appeal from the orders of May 5, May 18, May 20,
June 1, and June 4, 2010 or, in the alternative, to seek writ relief from such
orders. The orders addressed in her
opening brief were those entered on May 5, May 20, and June 4, and we deem her
appeal to be from those orders. (Cal.
Rules of Court, rule 8.100(a)(2).)
DISCUSSION
A. The May 5 and May 20 Orders
Karnazes
ventures no specific argument as to either the appealability or merits of the
May 5 order shortening time. We
therefore dismiss the purported appeal from that order as abandoned. (Durell
v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1361,
fn. 5.) That appeal is moot in any
event due to our partial reversal of the May 20 order.
Karnazes
contends the May 20 order is appealable as the final determination of a
collateral issue—whether the settlement agreement authorized the City to take
videos and photographs of the interior of her home during its final inspection. We agree.
“The only exception to the [rule that appealability must be based on
statute] is if the judgment or order relates to a final determination of some
from the general subject of the litigation, and if such determination requires
the aggrieved party . . . to pay money, or requires the performance
. . . of an act by or against such party.” (Draus
v. Alfred M. Lewis, Inc. (1968) 261 Cal.App.2d 485, 489.) Thus, an interim order is appealable under
the collateral order doctrine if “1. The order is collateral to the
subject matter of the litigation, [¶] 2. The order is final as to the
collateral matter, and [¶] 3. The order directs the payment of money by
the appellant or the performance of an act by or against appellant.” (Marsh
v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 297–298.)
Here,
the question of whether the settlement agreement allowed the final inspection
to be photographed and videotaped was collateral to the principal subject
matter of the litigation—the enforcement of Karnazes’s agreement to bring her
home into compliance with the applicable codes.
The order was final as to the question of photographing and videotaping
the final inspection. And the order
directed the performance of an act—the photographing and videotaping—that was
against her will. We therefore find the
May 20 order was appealable.
name="_ftnref6" title="">[6]
On
the merits, Karnazes argues the order constituted an unauthorized amendment of
her judicially approved settlement agreement.
We agree. Paragraph No. 4 of the
agreement specified: “No photographs,
videos, or other recordings may be made by [the City] during that
inspection.” In context, the words “that
inspection” plainly refer to the final inspection contemplated by the
settlement agreement. Although that
inspection did not occur by or near the 2009 date contemplated in the
settlement agreement, the City’s 2010 motion to amend the settlement agreement
expressly sought a court order setting a date for “the final inspection” and
allowing it to be recorded. The notice
of motion makes it clear the City was referring to the final inspection
contemplated in the settlement agreement.
By styling its motion as a motion to amend
rather than simply enforce the
settlement agreement, the City tacitly acknowledged it was seeking relief
inconsistent with paragraph No. 4 of that agreement.
We
note the City’s brief on appeal offers no defense on the merits of the trial
court’s May 20 order. Although we find
no error in the court’s establishment of a date for the final inspection to go
forward or in the follow-up inspection report it ordered, we do find the court
erred in authorizing the City to create a photographic and videotape record of
the inspection. That authorization was
contrary to paragraph No. 4 of the agreement.
We emphasize our decision is based solely on the parties’ settlement
agreement. The parties have no agreement
precluding the photographing or videotaping of any inspection other than the
final inspection contemplated by paragraphs Nos. 4 and 5 of the December 2008
settlement agreement and order.
Karnazes
contends the trial court lacked jurisdiction to enter the June 4 order under
the automatic stay provisions of section 916.
We do not reach that issue. We
find the June 4 order was not appealable and we decline to exercise our
discretion to treat the appeal as a writ.
In
our view, the June 4 order lifting the stay and authorizing the City to proceed
to trial was not appealable. It is not
one of the orders made appealable by section 904.1, and it does not come within
the collateral order doctrine because it was not a final determination of any
issue, but a mere prelude to further proceedings, either a trial or other steps
to enforce the settlement agreement. (Lakin
v. Watkins Associated Industries (1993) 6 Cal.4th 644, 656 [collateral
order is not final or appealable if it is preliminary to later proceedings];
see also Concerned Citizens Coalition of
Stockton v. City of Stockton (2005) 128 Cal.App.4th 70, 80–81[order
requiring further proceedings was not appealable because it likely would have
been followed either by reinstatement of the original judgment or entry of a
new judgment].) In addition, the June 4
order does not come within the collateral order doctrine because it did not
direct the payment of money by Karnazes or the performance of an act by or
against her. (Marsh v. Mountain Zephyr, Inc., supra,
43 Cal.App.4th at pp. 297–298.)
Accordingly, the June 4 order was not appealable.
Although
we have discretion to treat Karnazes’s appeal from the June 4 order as a
petition for a writ of mandate, we decline to do so. Karnazes identifies no unusual circumstances
warranting the exercise of such discretion.
(H. D. Arnaiz, Ltd. v. County
of San Joaquin (2002) 96 Cal.App.4th 1357, 1366–1367.)
DISPOSITION
The purported
appeals from the May 5, 2010 and June 4, 2010 orders are dismissed. The portion of the May 20, 2010 order
allowing the City to photograph and videotape the May 19 final inspection is
reversed. In all other respects, the May
20 order is affirmed.
Each
side shall bear its own costs.
_________________________
Margulies,
Acting P.J.
We concur:
_________________________
Dondero, J.
_________________________
Banke, J.
The settlement agreement and stay also encompassed (1) a separate action filed
by the City, case No. CIV 463526, concerning the exterior of the house; and (2)
a cross-complaint by Karnazes and her son against the City and her next-door
neighbors in case No. CIV 463526. Case
No. CIV 463526 was apparently dismissed after Karnazes cleaned up her yard.
Code of Civil Procedure section 664.6 provides: “If
parties to pending litigation stipulate, in a writing signed by the parties
outside the presence of the court or orally before the court, for settlement of
the case, or part thereof, the court, upon motion, may enter judgment pursuant
to the terms of the settlement. If
requested by the parties, the court may retain jurisdiction over the parties to
enforce the settlement until performance in full of the terms of the
settlement.”
