SUPERIOR COURT FOR THE STATE OF CALIFORNIA FOR THE COUNTY OF RIVERSIDE, INDIO BRANCH

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1 0 WOODRUFF, SPRADLIN, APC JASON M. MCEWEN - State Bar No. jmcewen@wss-law.com Anton Boulevard, Suite 00 Costa Mesa, CA -0 Telephone: () -000 Facsimile: () - Attorneys for CITY OF PALM SPRINGS SUPERIOR COURT FOR THE STATE OF CALIFORNIA FOR THE COUNTY OF RIVERSIDE, INDIO BRANCH IN RE THE MATTER OF THE APPLICATION OF THE CITY OF PALM SPRINGS FOR AN ABATEMENT WARRANT RE PREMISES AT: SOUTH FARRELL DRIVE, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA. INTRODUCTION Warrant No.: JUDGE: APPLICATION FOR INSPECTION AND ABATEMENT WARRANT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF PATTI LEE The property located at S. Farrell Drive in Palm Springs, California (hereinafter the Property ), consists of a single family residence. According to records available to the City of Palm Springs, the owner of record of the Property is, and at all times relevant to application was, Patricia Pogoda (hereinafter the "Owner"). Since May of 0, three administrative citations have been issued regarding the Property. Additionally, two Notices of Violation and a pre-citation have been recorded against the Property. During recent inspections of the exterior portions of the structures on the Property, numerous violations of the Palm Springs Municipal Code ( PSMC ) have been found to exist. Based on the nature.

2 0 of the municipal code violations, coupled with the unsecured state of the Property, it is highly likely that Building and Fire Code violations exist on the Property as well. Further, given that the structures on the Property are vacant and unsecured, a substantial risk exists that the Property is, or will be, used by vagrants, criminals, or become an attractive nuisance to children. On or about May, 0, City Code Enforcement officials inspected the Property and found various violations of the PSMC and Palm Springs Zoning Code ("PSZC"). (See, Declaration of Patti Lee ( Lee Dec. )). Specifically, the Property was found to be vacant, littered with trash and debris, covered with an accumulation of dead and/or dying vegetation or weeds, and the fence surrounding the Property was found in various states of disrepair. (Id.) That same day, a Notice of Violation and pre-citation were sent to the Owner of record of the Property, which advised that numerous conditions amounting to public nuisances existed on the Property. (See, Exhibit A ; Lee Dec. ). This Notice advised that the following violations of the PSMC and PSZC were found to exist on the Property: PSMC..00 [general violation of Palm Springs Zoning Code]; PSMC..00 [failure to remove refuse and waste]; PSMC..0 [allowing excessive plant growth into or over the public right-of-way]; PSMC..0 [failure to properly maintain property grounds]; PSMC.0.0 [failure to remove inoperative vehicles] and PSZC..00 [failure to maintain property according to applicable property maintenance standards]. Finally, the Notice advised that the violations were to be corrected on or before May, 0. No contact was made by the Owner in response to this Notice of Violation. (Id.) From that time until approximately November, 0, several more inspections of the Property were conducted on June, 0, June, 0, July 0, 0, August, 0, September, 0, October, 0, and October, 0. Although code enforcement staff was contacted by the Property Owner on June th, who advised that she would be moving to the Property with her son in the near future, no progress was made to correct the violations until September, 0; therefore three more administrative citations were issued by City staff on June, 0, July 0, 0 and August, 0. (See,.

3 0 Exhibits B, C and "D", respectively; Lee Dec. ). At the September, 0 inspection by City staff, it was observed that the landscaping had been abated, the fence repaired and the inoperable vehicle was no longer visible. On October, 0, another inspection was conducted and work appeared to be progressing. However, the fence was again in disrepair and there was litter in the yard once again. The Owner was contacted by City staff and advised to have the Property cleaned up by October, 0 or another citation would be issued. On October, 0, another inspection was conducted and the Property had finally been abated. The City's case was closed at that time. (See, Lee Dec. ) On or about November, 0, Code Enforcement Officer Kimberley was sent out by the Police Department to inspect the Property. The Property had reverted to its previous unmaintained state and was found to be entirely unsecured from entry, littered with trash and debris, covered with an accumulation of dead and/or dying vegetation or weeds, and the fence was in various states of disrepair. In addition to the Property maintenance violations, the fact that the vacant Property was left unsecured constituted a violation of PSMC section.0.0, which makes it unlawful to allow vacant and abandoned properties to remain open and of easy access to trespassers, vagrants, etc. City staff sent the Owner a Consent to Abate letter which requested that the Owner give permission for City staff to enter the Property for the purpose of abating the nuisances thereon. The Consent to Abate letter additionally requested that the Owner respond within five days of receipt. (See, Exhibit "E"; Lee Dec. ) That same day an additional Notice of Violation was issued. (See, Exhibit "F"; Lee Dec. ). On or about December, 0, City staff went to the Property and observed a dumpster located thereon which was full. However, the Property still appeared vacant. (See, Lee Dec. ) On December, 0, City staff drove by the Property again and found that the dumpster was full. At staff's request, the Police Department checked to see if the Property was secure and found the rear door wide open. Although it did not appear at that time that anyone was inside the structure on the Property, the view into the structure through.

4 0 the open door made clear that the structure was being, or had been, utilized by vagrants as a temporary dwelling. Specifically, City staff and police personnel observed extensive amounts of trash and debris, rotted food, and various other indicia of the Property being used as shelter. (See, Lee Dec. ) On or about December, 0, City code enforcement staff went to the Property with a Fire Marshall. The Fire Marshall deemed the property uninhabitable, unsafe, abandoned and unsecure, and that based on those facts, the Property violated the provisions of California Fire Code Section. The Fire Marshall requested that the utilities be shut off and the Property boarded up and made secure. (See, Lee Dec. ). Since the City's December, 0 inspection, a contractor has been observed on the Property clearing weeds, trash and debris from the exterior areas of the Property. However, as of the date of this application, the Property remains unsecured, and is believed to harbor vagrants, drug and/or gang activity, and serves as an attractive nuisance for the children that live nearby. To date, neither the Property Owner nor her on-site contractor has taken any action to secure the Property from entry, nor have they expressed a willingness to do so. Accordingly, the City seeks an order from this Court permitting the City, its employees and any contractors hired by the City to enter onto the Property and into the structures thereon for the purposes of () conducting an inspection of the interior areas of the Property to ascertain whether any persons or animals are inside of the structure, () to determine the extent and nature of any municipal code violations that exist within the structure on the Property, and () to secure the Property from entry pending abatement action by the Property Owner.. THE COURT HAS AUTHORITY TO ISSUE THE ABATEMENT WARRANT Section of the Code of Civil Procedure authorizes public entities to abate public nuisances. (See also, Cooper v. Mitchell Bros. Santa Ana Theater () Cal. App. d.) However, in the absence of consent or exigent circumstances, government officials engaged in the abatement of a public nuisance must have a warrant to enter any private property where such entry would invade a constitutionally protected privacy interest. (Flahive v. City of Dana Point () Cal. App. th,.). Here, the City seeks to.

5 0 abate multiple public nuisances existing on the subject property, which is privately owned and for which an abatement warrant is necessary. While there is no statutory procedure for obtaining a warrant to abate a nuisance, numerous cases have clearly established the validity of an abatement warrant, and have authorized courts to issue an abatement warrant. The procedures for an abatement warrant mirror those for an inspection warrant. As the court held in Connor v. City of Santa Ana,(0) F.d, : California courts have rejected, for purposes of the warrant requirement, any distinction between inspection and abatement of a declared public nuisance. Further, in Flahive the Appellate Court held that a procedure that follows statutory requirements for other types of warrants, such as an inspection warrant, is sufficient. (Flahive, supra, Cal. App. th at, n.) In Flahive, the City of Dana Point requested the court issue an abatement warrant to abate various public nuisances existing within the City. After a warrant was issued by the trial court, the owner of the nuisance property sued the city asserting, among others things, claims for trespass and inverse condemnation. The owners argued that the trial court did not have authority to issue the abatement warrant. However, in affirming the trial court s issuance of the abatement warrant to the City, the Appellate Court held that the lower court did have subject matter jurisdiction to issue an abatement warrant ordering the city to abate the public nuisance on the property. The Court reasoned that while no statutory procedure has been enacted for obtaining an abatement warrant, the procedure the City employed appears to pass constitutional muster because it mirrored the statutory requirements for other types of warrants. (Flahive, supra, at p. (emphasis added).) The Appellate Court in Flahive, quoting the California Supreme Court, then detailed the procedure for obtaining an abatement warrant, which mirrors the requirements for an inspection warrant: () a written warrant issued upon reasonable cause to believe grounds for the abatement existed; () an affidavit which particularly describes the place to be inspected and designates the purpose for the intrusion and the limitations on it; () a warrant.

6 0 valid for a reasonable time and limited to the hours during which it could be executed; () requiring the city to post notice on the property at least hours before the abatement; () requires that consent to enter the property was sought and denied, or provided the reasons why consent was not sought; () only reasonable force used to execute the warrant; and () after the abatement is complete, the city files a sworn return stating with particularity what actions were taken to abate the nuisance and the results. (Flahive, supra, Cal. App. th at, n., quoting Gleaves v. Waters, () Cal. App. d, 0; see also Ogborn v. City of Lancaster, (00) Cal. App. th.) These are the same requirements for an inspection warrant, as codified in Code of Civil Procedure sections.0-. and discussed below. Likewise, in Gleaves, the Supreme Court upheld the validity of an abatement warrant to abate a public nuisance, and held that the procedure for obtaining an abatement warrant mirrors the procedure for an inspection warrant. (Gleaves supra, Cal. App. d.) In that case, an abatement warrant was issued by the court for abatement on private property of an infestation of Japanese Beetles, which were declared a public nuisance. (Id. at.) Before the abatement warrant was executed, the property owners sought injunctive relief to restrain the government from entering their private property and abating the nuisance. They argued, among other things, that the abatement warrant was invalid. The trial court denied injunctive relief. In affirming the denial of the injunctive relief, the Supreme Court recognized the necessity of an abatement warrant to abate public nuisances on private property. The Court stated: Accordingly, we hold that in the absence of consent or exigent circumstances, government officials engaged in the abatement of a public nuisance must have a warrant to enter any private property where such entry would invade a constitutionally protected privacy interest. We do not mean to suggest or imply that the warrant requirement extends to all entries onto private property for nuisance abatement purposes, only those which infringe upon constitutionally recognized expectations of privacy. (Id. at -0.).

7 0 The Court also detailed the same requirements for an abatement warrant as stated in Flahive, and which mirror the requirements for obtaining an inspection warrant. In holding that an abatement warrant is required before the government can enter private property and abate a public nuisance, the Court recognized the validity of an abatement warrant, and the authority of a court to issue one. If a warrant is required, then the courts certainly have jurisdiction and the authority to issue such a warrant. Further, in Ogborn v. City of Lancaster (00) Cal. App. th,, the trial court issued an abatement warrant, which permitted the City of Lancaster to inspect, investigate, search and abate the public nuisance on private property, and authorized city staff, through city forces or by private contractor shall enter the property to: Remove the unpermitted and unsafe structures from the property. (emphasis added). After the city executed the abatement warrant, the property owners sued the city, alleging a violation of Due Process on the grounds that the abatement warrant was invalid. (Id. at.) One of the city s employees, who was sued personally, argued he was entitled to qualified immunity because he reasonably relied on the abatement warrant. The Appellate Court agreed that reliance on the abatement warrant entitled the employee to qualified immunity, and at least implicitly, upheld the validity of the abatement warrant: Although the warrant at issue is for nuisance abatement, rather than search and seizure of criminal evidence, the legal principles applicable to search warrants are instructive in this case. Law enforcement officers are entitled to qualified immunity if they act reasonably under the circumstances, even if the actions result in a constitutional violation. [Citations omitted.]... The officers who lead the team that executes a warrant are responsible for ensuring that they have lawful authority for their actions. A key aspect of this responsibility is making sure that they have a proper warrant that in fact authorizes the search and seizure they are about to conduct. (Citation omitted.) Here, there is no dispute that the warrant authorized the demolition of the Ogborns home, which was, after all, the only structure on the Property. Because [the officer] indisputably led the team, he is entitled to qualified immunity. (Id. at.).

8 0 The court held that the abatement warrant was valid and protected the City of Lancaster and its code enforcement officers from liability. (Id. at.) The abatement warrant could not provide such protection if the trial court did not have authority to issue it. Finally, the City need not give notice of its intent to seek this abatement warrant, as is the case when an agency seeks a search or seizure warrant: [N]o case of which we are aware requires notice to the person whose property will be entered to execute any sort of warrant. And even though the City filed a formal Application for Abatement Warrant with points and authorities, we also see no reason why it should be required to do so. Typically, officials seeking a warrant merely contact the warrant duty judge informally and submit the affidavit and the warrant. On the other hand, the procedure the City employed would be useful if the duty judge might be unfamiliar with the authorization for such warrants and the process for obtaining them. (Flahive, supra, at, n..) In short, case law specifically authorizes the Court to issue this warrant for abatement of the public nuisances existing on the subject Property. The procedure for obtaining the abatement warrant mirrors the procedure for an inspection warrant. As shown below, and in the attached declaration of the City of Palm Springs Code Enforcement Officer Patti Lee, the City meets those requirements; therefore, the abatement warrant should be issued.. USING THE INSPECTION WARRANT PROCEDURE AS A MODEL, ALL REQUIREMENTS FOR ISSUANCE OF A WARRANT ARE SATISFIED A. Inspection (Abatement) Warrant Procedure Using the inspection warrant procedure as a model, all necessary requirements for issuance of an abatement warrant have been met by the City. An inspection warrant may issue requiring a government official, to conduct any inspection required or authorized by state or local law or regulation relating to building, fire, safety, plumbing, electrical, health, labor or zoning. (Cal. Civ. Proc..0.) Sections.0 to., inclusive, of the California Code of Civil Procedure govern the issuance, execution and enforcement of an inspection warrant. An inspection.

9 0 warrant may be issued upon cause, supported by affidavit particularly describing the place, dwelling, structure or premises to be searched and the purpose for which the search is made, and stating that consent to the search has been sought and refused. (Cal. Civ. Proc...) Cause exists if either reasonable legislative or administrative standards for conducting a routing or area inspection are satisfied with respect to the property, or if there is reason to believe that a nonconforming condition exists on the property. (Cal. Civ. Proc...) If the Court is satisfied that cause for the inspection exists, the Court shall issue the warrant, particularly describing the dwelling, structures and/or places to be inspected and designating on the warrant the purpose and limitations of inspection as required by law. (Cal. Civ. Proc...) A forcible entry warrant may be issued where facts are shown sufficient to create a reasonable suspicion of building or related code violations which pose an immediate threat to health or safety, or where reasonable attempts to serve a previous warrant have been unsuccessful. (Cal. Civ. Proc...) B. There Is Cause to Believe that Violations are Present on the Property Exists, and the Owners Have Refused Consent to Inspect and Abate the Nuisances Here, this warrant is sought in order to enable the City of Palm Springs through its employees or hired contractors, to enter the subject premises for purposes of inspecting and abating the multiple public nuisances that exist on the Property. Reasonable cause exists to believe that violations are present on the Property as described in detail above as evidenced by the attached declaration of Patti Lee. To date, the Owner has not provided consent to the City to inspect and abate the nuisances on the Property. The City has attempted to resolve this matter through various forms of communication, all to no avail. The City sent the Owner several notices regarding the existing violations, issued numerous citations requesting correction of the violations, and requested consent to inspect and abate the violations. Despite these many attempts by the City to gain voluntary compliance the Owner has made minimal effort to correct the.

10 0 violations and has failed entirely to secure the Property from entry. Despite repeated directives from the City to the Owner to abate the conditions at the Property and to secure it from entry, it remains vacant and open to anyone that passes by, creating a target for vagrants and crime, causing an extreme risk to the health, safety and welfare of the public, and posing an immediate fire hazard.. CONCLUSION The City of Palm Springs has met all of the requirements for an Abatement Warrant. As such, the City hereby requests an abatement warrant be issued permitting the City and/or its contractors to enter the property to inspect the interior and exterior areas of the Property and the structures thereon, to secure the Property from entry until such time as the Owner has abated the violations thereon, and to recover its costs from the Owner, or her successors and assigns, by placing a lien or special assessment on the Property pursuant to Palm Springs Municipal Code section.. and Government Code sections and.. The City will provide the Court with the pertinent information from the City s case file, including the sworn testimony of Code Compliance Officer Patti Lee so that it can determine if cause exists. DATED: December, 0 Respectfully submitted, WOODRUFF, SPRADLIN, APC JASON M. McEWEN Attorneys for CITY OF PALM SPRINGS.

11 0 DECLARATION OF PATTI LEE IN SUPPORT OF I, Patti Lee, declare and state as follows:. The following is based on my own personal knowledge except for those matters for which I declare on information and belief. I have personal knowledge of the following facts and am competent to testify as to their truth if called as a witness.. I am currently employed as a Code Compliance Officer for the City of Palm Springs, California. I have been so employed throughout the course of the City's investigation of this matter.. My duties as a Code Compliance Officer for the City of Palm Springs include, but are not limited to, the inspection, investigation, and enforcement of state, city, and local municipal codes and zoning ordinances on private, commercial, and residential properties. My duties also include making determinations based on the written, verbal, and physical evidence that is gathered through photographs and investigations which are then documented.. Since the time I began investigation of this matter on or about May, 0, I have conducted no less than ten site inspections of the property located at S. Farrell Drive, Palm Springs, California, hereinafter referred to as the Property.. The Property consists of a single-family dwelling structure and surrounding land. According to the records available to the City of Palm Springs, I believe the Property is owned by Patricia Pogoda (hereinafter the "Owner").. On or about May, 0, while conducting my routine duties, I drove by the Property and found it to be in very poor condition. Upon further inspection of the Property, I found various violations of the Palm Springs Municipal Code and Palm Springs Zoning Code. Specifically, the Property, which I found to be vacant, was littered with trash and debris, covered with an accumulation of dead and/or dying vegetation or weeds, and the fence was in various states of disrepair. That same day, I sent a Notice of Violation and precitation to the Owner of record of the Property, which advised that numerous conditions.

12 0 amounting to public nuisances existed on the Property. A true and correct copy of the May, 0 Notice and Order I sent to the Property Owner is attached hereto as Exhibit "A". This Notice advised that the following violations of the PSMC and PSZC were found to exist on the Property: PSMC..00 [general violation of Palm Springs Zoning Code]; PSMC..00 [failure to remove refuse and waste]; PSMC..0 [allowing excessive plant growth into or over the public right-of-way]; PSMC..0 [failure to properly maintain property grounds]; PSMC.0.0 [failure to remove inoperative vehicles] and PSZC..00 [failure to maintain property according to standards]. Finally, the Notice advised that the violations were to be corrected on or before May, 0. The Owner did not contact me in response to this Notice and Order.. From that time until approximately November, 0, I conducted several more inspections of the Property on June, 0, June, 0, July 0, 0, August, 0, September, 0, October, 0, and October, 0. No progress was made on the Property to correct the violations until September, 0; therefore I issued three administrative citations on June, 0, July 0, 0 and August, 0. True and correct copies of these administrative citations are attached hereto as Exhibits "B", "C", and "D", respectively. On September, 0, upon my inspection of the Property, I found that the landscaping had been abated, the fence repaired and the inoperable vehicle was no longer visible. On October, 0, I conducted another inspection and found that work on abating the property appeared to be generally progressing. However, the fence was again in disrepair and there was litter in the yard. I contacted the Owner and advised her to have the Property cleaned up by October, 0 or I would issue another citation. On October, 0, I conducted another inspection and the Property had finally been abated. At that time, I closed the case.. On or about November, 0, I returned from medical leave after having been out due to a broken collar bone. I then learned that during my absence the Police were called to the Property along with my fellow code enforcement officer Kimberley Bowman. The Property was again found to be vacant, littered with trash and debris, covered with an.

13 0 accumulation of dead and/or dying vegetation or weeds, and the fence was in various states of disrepair. Furthermore, it was found that the structure on the Property was unsecured from entry. In fact, the rear door to the structure was wide open and incapable of being locked. Upon my return to work on November, 0, I re-opened my case and sent correspondence requesting that the owner consent to an inspection of her Property and requesting authority for the City to abate the violations thereon. A true and correct copy of the Consent to Abate letter to the Owner of the Property is attached hereto as Exhibit "E". That same day, I issued an additional Notice of Violation. A true and correct copy of my November, 0 Notice of Violation is attached hereto as Exhibit "F".. On or about December, 0, I drove by the Property and observed a dumpster on the Property that was full. However, the Property still appeared to be vacant. On December, 0, I drove by the Property again and found that the dumpster was still full. That same day, the Police met me at the Property to assist with an inspection. The front door to the structure was locked, however, the rear door was wide open and incapable of being locked. Although it did not appear as though anyone was inside the Property while we were present, it was clear from the view into the structure that it was being, or had been, used as a dwelling. Extensive amounts of trash, debris, rotted food and various other material was observed, evidencing the Property's use as a temporary dwelling. In addition to the Property maintenance violations, the fact that the vacant Property was left unsecured constitutes a violation of PSMC section.0.0, which makes it unlawful to allow vacant and abandoned properties to remain open and of easy access to trespassers, vagrants, etc.. On December, 0, I went to the Property with Deputy Fire Marshall Mike Smith. There no one on the Property, but the Property was in very poor condition. Deputy Fire Marshall Mike Smith deemed the Property uninhabitable, unsafe, abandoned, and unsecure. He stated that pursuant to Section of the California Fire Code, the utilities should be shut off and the Property boarded and made secure.. Because minimal progress has been made by the Owner to abate the many nuisance conditions that exist on the Property, and the Owner has taken no steps to secure.

14 0 the vacant Property from entry, I believe it is necessary to obtain and inspection/abatement warrant to ascertain the existence and severity of the violations at the Property, to ensure that no persons or animals are inside the structure on the Property and to secure the Property from entry until such time as the Owner abates the existing violations.. Given my training and experience, it is my belief that the unsecured structure on the Property creates a significant danger to any occupants of the Property and to the general public. Furthermore, given that the Property is entirely unsecured, I am concerned that the Property may attract transients, juveniles, vandals, and/or drug activity. I declare under penalty of perjury pursuant to the laws of the State of California that the foregoing facts are true and correct and that if called upon to do so, I could and would competently testify thereto. Executed this of December, in Palm Springs, California. PATTI LEE, Declarant.