COUNTY OF SONOMA v. FOUCHE (1994)

This case presents the question, among others, whether local governments can by ordinance create exceptions to the general rule, codified in Code of Civil Procedure section 1021, that attorney fees are not recoverable as costs except on the basis of statute or private agreement.

Appellants James Fouche and Fannie Mae Fouche own a parcel of real property in the County of Sonoma on a portion of which is located the Fouche Brothers Wrecking Yard.   In 1990, the Sonoma County Board of Supervisors revoked the permit allowing for the conditional use of the site as a wrecking yard and ordered appellants to cease operations immediately.

Following appellants' refusal to cease operations, respondent County of Sonoma (the County) filed an action in superior court (1) to enjoin appellants from violating local zoning laws (operating yard without a permit), (2) to enjoin the wrecking yard as a public nuisance and (3) for recovery of costs of abatement including attorneys' fees.

Appellants cross-complained for a writ of mandate claiming (1) the action of the Board of Supervisors denied them a fair hearing in violation of due process and equal protection guarantees, (2) the abatement constituted inverse condemnation and (3) the acts of the County had deprived them of their civil rights pursuant to section 1983 of Title 42 of the United States Code.

The trial court enjoined appellants from operating the wrecking yard without a permit and awarded costs and attorneys' fees to the County.   Appellants' petition for a writ of mandate was denied.   The court did not reach the nuisance issue.

On appeal, appellants assert that:  (1) there is no substantial evidence to support the trial court's conclusion that there was a permit or that it was validly revoked, (2) the court erred in concluding that no inverse condemnation occurred, (3) the procedure of filing for an injunction in superior court rather than allowing for administrative review denied appellants equal protection of law, (4) appellants were wrongfully denied a jury trial, (5) the trial court applied the wrong standard of proof, (6) the statement of decision is inadequate, and (7) that the court erred in awarding costs, including attorneys' fees, to the County.   We shall reject all these claims save the last.

FACTUAL BACKGROUND

In the early 1940's, appellants began operating a small wrecking yard on the property.   The yard covered a small area at the rear of the property, surrounded by orchards.   In 1945, the County adopted its first zoning ordinance.   Soon thereafter, a three hundred foot strip at the rear of the property was zoned for industrial use and the remainder was zoned for agricultural use.   Wrecking yard operations were not permitted in the agricultural zone, but were allowed in the industrial zone with a use permit.

Because the wrecking yard predated the zoning ordinance, it was classified as a legal non-conforming use and allowed to remain without a use permit.   As a legal non-conforming use, the yard was strictly prohibited from expanding.   In the mid–1950's, appellants obtained a use permit and the wrecking yard was permitted to expand within the industrial zone.   Although the original use permit allegedly had been destroyed, county officials and documents referred to its existence and to conditions of the permit.   Appellants deny the use permit ever existed.

In 1960, the property was re-zoned, this time to rural residential.   Wrecking yard operations were not permitted under this zoning, with or without a use permit.   Again, because the wrecking yard pre-dated the zoning reclassification, the wrecking yard was permitted to operate subject to conditions of the permit and a prohibition against expansion of the legal non-conforming use.

Within a few years, the wrecking yard began to expand into the front portion of the property, causing complaints by county residents.   The County requested appellants to limit the yard to the permitted area which was at the rear of the property.   For a period of time, appellants complied.

By the early 1980's, county staff discovered that the wrecking yard had again expanded in violation of the permit.   In September 1984, county staff initiated proceedings before the County Board of Zoning Adjustments to consider revocation of the permit for violation of permit conditions.   Appellants appeared at the hearing represented by counsel.

After a public hearing, the Board of Zoning Adjustments declined to revoke the permit, but modified it, establishing seven conditions of operation.   The modified permit required that:  (1) wrecking yard operations be confined to an area in the rear of the property, (2) vehicles be stacked no higher than two vehicles or eight feet, (3) operations be fenced with a solid board six-foot fence, (4) proper fire lanes be maintained, (5) hours of operation be limited to 8:00 a.m. to 6:00 p.m. daily, (6) future expansion of the yard be prohibited and would constitute grounds for revocation of the permit, and (7) the permit was subject to revocation or modification if the Board found (a) any of these conditions had been violated, (b) the yard was operating in such a manner as to be substantially detrimental to persons or property in the neighborhood.   Appellants acquiesced to the modification of the permit and did not appeal the Board's action.

Within a few months, zoning enforcement staff began receiving complaints regarding the wrecking yard.   Inspections revealed numerous violations of permit conditions, including broad expansion outside of the permitted area.   For the ensuing six years, zoning enforcement staff had frequent contact with appellants, attempting to gain voluntary compliance with the permit conditions.   Compliance rarely lasted for more than a few months.

In January 1990, staff again brought the matter to the Board of Zoning Adjustments for consideration of revocation of the permit.   Upon the Board of Zoning Adjustments' determination that revocation was necessary, appellants appealed to the Sonoma County Board of Supervisors.

On May 22, 1990, the Board of Supervisors held a public hearing to consider, de novo, revocation of the use permit for the wrecking yard.   Appellants appeared, represented by counsel.

County staff recounted the long history of persistent permit violations on the site, including expansion of the yard area, overstacking of vehicles, failure to maintain fire lanes and inadequate fencing around the yard.   Neighbors of the wrecking yard also testified, complaining of noise, dust, visual blight, traffic interference, fire hazards, and criminal activity in and around the yard.

Appellants' counsel acknowledged the violations of the use permit conditions, but promised that efforts were then underway to bring the yard into compliance.

The Board of Supervisors revoked the permit both for violations of the use conditions and for operating in such a manner as to be substantially detrimental to persons or property in the neighborhood.   The Board ordered appellants to cease operations immediately, and instructed county counsel to initiate abatement proceedings in the event that wrecking yard operations continued.

In response to the continued operations, on August 22, 1990, county counsel filed a complaint to enjoin the violation of zoning laws, to enjoin operation of the yard as a public nuisance and for recovery of costs.   Appellants' cross-complaint petitioned for a writ of mandate, challenging the revocation of the permit, alleging the abatement constituted inverse condemnation, and claiming a civil rights violation pursuant to section 1983 of Title 42 of the United States Code.

The superior court tried the case without a jury, and this appeal followed.

DISCUSSION

[[I.–VII]] **

VIII.

Attorneys' Fees and Costs Were Improperly Awarded to the County

The County applied for an award of attorneys' fees and costs relying on a local ordinance ¹ which provides in part:  “A continuing violation of this code ․ is a public nuisance.  [¶] The Board of Supervisors may order the abatement of any public nuisance as defined in this section or any state statute following notice and hearing․  When applicable, costs incurred by the county in abating such nuisances shall be special assessments against the parcels of property where the nuisances are located.   Costs shall include, but are not limited to any administrative overhead, salaries, and expenses incurred by the following departments:  Public Health, Planning, County Counsel, District Attorney, Building and Public Works.”

Relying chiefly on this ordinance,² the trial court awarded fees in the amount of $14,210 which was calculated by multiplying the 203 hours spent times the county counsel's hourly rate of $70.   The trial court also awarded $2,093.42 as the cost of administrative overhead, salaries and expenses incurred by Planning Department official Debra Watts who spent 38 hours working on the discovery, pre-trial, trial and post-trial matters at $55.09 per hour.   Ms. Watts was the zoning enforcement officer who had investigated the case and was a witness at trial.

Appellants challenge the award, arguing that the County's ordinance is inconsistent with state statutes governing the award of attorneys' fees.

Code of Civil Procedure section 1021 (hereafter “section 1021”) provides that “[e]xcept as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties;  but parties to actions or proceedings are entitled to their costs as hereinafter provided.”  “This is a codification of the general rule, also known as the American Rule, that attorney fees are not taxable as costs against the losing party.  (See F.D. Rich Co. v. Industrial Lumber Co. (1974) 417 U.S. 116, 128–131 [94 S.Ct. 2157, 2164–2166, 40 L.Ed.2d 703], fn. omitted,)  ‘The rule here has long been that attorney's fees are not ordinarily recoverable in the absence of a statute or enforceable contract providing therefor.’ ”  (Young v. Redman (1976) 55 Cal.App.3d 827, 834–835, 128 Cal.Rptr. 86, quoting Fleischmann Corp. v. Maier Brewing (1967) 386 U.S. 714, 717–718, 87 S.Ct. 1404, 1407, 18 L.Ed.2d 475.)

“The American Rule is based upon the philosophy that ‘one should not be penalized for merely defending or prosecuting a lawsuit, and that the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents' counsel.’ ”  (Young v. Redman, supra, 55 Cal.App.3d at p. 836, 128 Cal.Rptr. 86, quoting Fleischmann, supra, 386 U.S. at p. 718, 87 S.Ct. at p. 1407.)

The courts have fashioned three exceptions to the American Rule derived from their historic equitable powers.  (See Serrano v. Priest (1977) 20 Cal.3d 25, 141 Cal.Rptr. 315, 569 P.2d 1303, describing the common fund, substantial benefit and private attorney general exceptions.)   Additionally, the Legislature has enacted hundreds of statutory exceptions.   For example, attorneys' fees are allowed in a partition suit where they are incurred “for the common benefit” or parties entitled to share in the lands divided.   (Code of Civ.Proc., § 874.010, subd. (a).)  Corporations Code section 800, subdivision (d), provides for attorneys' fees in shareholder's derivative suits.  Welfare and Institutions Code section 10962 provides that, within one year after receiving notice of a final administrative decision, a welfare applicant or recipient may file a petition for a writ of mandamus to review applicable questions of law, and, if he prevails, he is entitled to reasonable attorneys' fees and costs.   Perhaps the best known statutory exception is that allowed under the private attorney general theory, codified in section 1021.5 of the Code of Civil Procedure.  (For a list of the statutory exceptions see 7 Witkin, California Procedure (3d ed. 1985) Judgments, §§ 155 et seq.)

Appellants claim that an ordinance which provides for the recovery of attorneys' fees is not a “statute” within the meaning of section 1021, and that, accordingly, a county lacks the necessary legislative authority to shift fees.

Several courts have held that the term “statute” embraces ordinances, albeit in contexts significantly different from that presented here.   In King Mfg. Co. v. Augusta (1928) 277 U.S. 100, 48 S.Ct. 489, 72 L.Ed. 801, the United States Supreme Court considered whether it had jurisdiction to determine the constitutionality of a local ordinance.   The court's jurisdiction was defined as extending to cases where the constitutional validity of a treaty or statute of the United States was struck down and cases in which the validity of any state statute was upheld.   The court held it had jurisdiction to review the constitutionality of state and municipal enactments, “whether called constitutional provisions, laws, ordinances or orders, [since all] are in essence legislative acts of the State.”  (Id., at p. 104, 48 S.Ct. at p. 490.)

In City of Los Angeles v. Belridge Oil Co. (1954) 42 Cal.2d 823, 271 P.2d 5, the California Supreme Court considered whether the three-year statute of limitations on an “action upon a liability created by statute” applied to a city's action for payment of business license fees created by a local ordinance.   Citing King Mfg. Co. v. Augusta, supra, the court stated that “it would be possible to say that the instant license tax was a liability created by statute.”   The court also concluded, however, that it could reach the same result by noting that a ordinance was enacted by the power delegated to the city by the state Constitution and statutes.   The court did not elect one path over the other in holding that the statute of limitations applied.   (City of Los Angeles v. Belridge Oil Co., supra, at pp. 833–834, 271 P.2d 5.)

On the other hand, in Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 209 Cal.Rptr. 682, 693 P.2d 261, the Supreme Court held that the term “statute” did not include local ordinances in the course of interpreting Evidence Code section 500, which states:  “Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.”   Evidence Code section 160 defines “law” as used in section 500 as including “constitutional, statutory, and decisional law.”   The question presented was whether a local ordinance could be deemed a “statute” for purposes of deviating from the established rules of evidence relating to the burden of proof.   Relying on cases holding that the Legislature alone possesses the power to make, change or alter the rules of evidence, the court found that the Legislature did not intend municipal ordinances to come within the exception clause of Evidence Code section 500, concluding instead “that the Legislature deliberately excluded ordinances from those sources of law that may change the traditional allocation of the burden of proof, and that the presumption in [the ordinance] shifting the burden of proof, on its face, directly conflicts with the Evidence Code ․ [and is therefore] invalid.”   (Id., at p. 698, 209 Cal.Rptr. 682, 693 P.2d 261.)

The issue here is whether the Legislature intended municipalities to have the power to create exceptions to the general rule that attorney fees may not be awarded except on the basis of “statute” or private agreement.³  Relying on King Mfg. Co. v. Augusta, supra, and City of Los Angeles v. Belridge, supra, the Ninth Circuit answered that question in the affirmative.   In upholding the validity of a fee shifting provision of a local rent ordinance, the Ninth Circuit ruled that the term “statute” as used in section 1021 included an “ordinance.”  (Segundo v. Rancho Mirage City (9th Cir.1989) 873 F.2d 1277, 1278–1279.)   Without reference to Fisher or other analysis the court in Segundo simply declared:  “We see no reason to draw a distinction between state statutes and municipal ordinances for the purposes of attorneys' fees under California law.”  (Ibid.)  Unlike the Ninth Circuit, we find good reason for the distinction.

The use of the word “statute” in section 1021 and the absence of any reference to ordinances or other indication of an intention to permit local governments to legislate in this area, strongly suggests a legislative intention to retain exclusive authority to create (as well as to modify and eliminate) statutory exceptions to the American Rule.   We reach this conclusion for much the same apparent reason the Supreme Court was in Fisher unwilling to infer local authority to change the laws of evidence;  namely, the confusion that would result if discrepancies were introduced into an area of the law in which uniformity is highly desirable.   The interpretation of section 1021 urged by the County in this case could not be confined to actions commenced by local governments to abate public nuisances.   Public nuisance is defined by state law (Civ.Code, § 3480), as are the available remedies and the procedures that must be utilized.  (See, e.g., Civ.Code, §§ 3490–3496;  Gov.Code, §§ 25845, 38773–38773.7.)   Moreover, abatement actions can be maintained not just by cities and counties but by “any public body or officer” authorized to do so by law (Civ.Code, § 3494) as well as by private persons.  (Civ.Code, § 3493.)   Therefore, if local governments could by ordinance create an exception to the application of the American Rule in public nuisance cases there would be few limits on their ability to do so with respect to a broad array of other civil actions.   The disparities in the law thus allowed, which would include discrepancies between and among city and county ordinances, not just differences between local ordinances and state statutes, would create difficult conflict of law problems and surely encourage forum shopping.   Absent much stronger reason than the language of section 1021 provides, we are unwilling to infer a legislative intent that would not only invite such confusion but raise a constitutional question.  (Cal. Const., art. IV, sec. 16.  [“All laws of a general nature have uniform operation.”] )

The chief purpose of the Sonoma ordinance is to authorize the county board of supervisors to “order the abatement of any public nuisance, as defined in this section or any state statute following notice and hearing” and permit the costs incurred by the county in abating such nuisances to be made “special assessments against the parcels of property where the nuisances are located.”   (Sonoma County Code, sec. 1–7(b).)   The right of a county to assert such authority derives from Government Code section 25845.   Subdivision (a) of that statute provides that a board of supervisors may, by ordinance, establish a procedure for “the summary abatement of a nuisance upon order of the board of supervisors, or upon order of any other county officer authorized by law to summarily abate nuisances, if the board or officer determines that the nuisance constitutes an immediate threat to public safety or health.”  (Gov.Code, § 25845, subd. (a).)  Subdivision (b) states in relevant part that if the owner fails to pay the costs of such summary abatement upon demand by the county, “the board of supervisors may order the cost of the abatement to be specially assessed against the parcel.   The assessment may be collected at the same time and in the same manner as ordinary county taxes are collected․”

Government Code section 25845 only authorizes the imposition of a lien on property where the owner fails to pay the costs of “summary abatement” proceedings “upon demand by the county.”  (Gov.Code, § 25845, subd. (b).)  The trial court proceedings in this case are not the “summary” proceedings referred to in the statute; ⁴  the county does not allege it ever made the demand required by the statute and was refused;  and the county has not pursued the lien remedy the statute authorizes.   Moreover, “costs,” which are themselves recoverable only on the basis of statute (Code of Civ.Proc. secs. 1021 et seq.), do not include attorney fees absent express statutory language to that effect.  (See, e.g., Code Civ.Proc., §§ 1021.7, 1021.9.)   Nothing in Government Code section 25845 suggests that attorney fees are recoverable as part of the costs adverted to in that statute.

The only statute specifically providing that attorney fees may be awarded as costs in public nuisance abatement cases is Civil Code section 3496.   That statute does not allow an award of attorney fees as costs in an abatement action like this but only in those “in which a government [/] agency seeks to enjoin the sale, distribution, or public exhibition, for commercial consideration, of obscene matter ․” (§ 3496, subd. (a)) or the use of a building or place for the purpose of illegal gambling, lewdness, assignation, or prostitution or for the sale, manufacture or storage of controlled substances or alcoholic beverages.  (§ 3496, subds. (b), (c), (d).)  Section 3496 was enacted to provide the statutory basis for attorney fee awards essential under Code of Civil Procedure section 1021, “as the abatement law does not otherwise provide for compensation.”  (People ex rel. Cooper v. Mitchell Brothers' Santa Ana Theater (1985) 165 Cal.App.3d 378, 387, 211 Cal.Rptr. 501.)

Civil Code section 3496 does not purport to authorize the recovery of fees as costs in public nuisance cases like this one,⁵ which does not conform to any of the types of abatement cases it describes.   It is a familiar rule of statutory construction that, absent unambiguous evidence of a contrary legislative intent, the expression of certain things in a statute necessarily involves exclusion of other things not expressed.  (Strang v. Cabrol (1984) 37 Cal.3d 720, 725, 209 Cal.Rptr. 347, 691 P.2d 1013;  Capistrano Union High School v. Capistrano Beach Acreage Co. (1961) 188 Cal.App.2d 612, 617, 10 Cal.Rptr. 750 [condemnees costs do not include interest on the interlocutory judgment];  2A Sutherland Stat. Const. § 47.23, p. 216 (5th ed. 1992 rev.)   Accordingly, in the absence of any clear legislative intention to permit attorney fees to be recoverable as costs in public nuisance abatement cases different from those described in Civil Code section 3496, that statute must be deemed a legislative prohibition of such recovery.   To the extent the Sonoma ordinance may be read to authorize the recovery of attorney fees in abatement proceedings other than those described in section 3496, it is unenforceable, as it impermissibly conflicts with a general law of this state.⁶  (Cal. Const., art. XI, sec. 7 [“A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”] )

There being no statutory or other basis upon which attorney fees can be assessed against appellants, the award of such fees must be set aside.

Conclusion

The award of attorneys fees is stricken.   In all other respects the judgment is affirmed.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

1.   Sonoma County Code section 1–7, subdivision (b);  Ordinance No. 3726 (1987).

2.   The court also cited Code of Civil Procedure section 1021 and Government Code section 25845, which are later described and discussed.

3.   The County urges us to consider recent amendments to section 1033.5 of the Code of Civil Procedure, the “cost-bill statute,” as a basis for affirming the award.  “In 1990, the Legislature amended ․ section 1033.5 to allow attorney fees as costs to a prevailing party when authorized either by statute or contract.”  (Bankes v. Lucas (1992) 9 Cal.App.4th 365, 370, 11 Cal.Rptr.2d 723, fn. omitted.)   As of January 1, 1994, section 1033.5 was amended to permit attorneys' fees when authorized by “law.”   It now provides:  “The following items are allowable as costs under Section 1032:  ․ (10) Attorney fees, when authorized by any of the following:  (A) Contract.  (B) Statute.  (C) Law.”   We decline the invitation to decide this case based upon the amendments to section 1033.5.  Section 1033.5 is a procedural vehicle rather than a statute creating substantive rights.   We do not believe that in amending the cost-bill statute the Legislature intended to modify section 1021, the codification of the American Rule.   Moreover, items listed in section 1033.5 may be awarded only under section 1032 which provides in relevant part “a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.”   Since the County's fee shifting ordinance is not reciprocal, it does not refer to the type of “costs” contemplated by sections 1032 and 1033.5.

4.   Such proceedings are ordinarily employed in connection with nuisances per se, where abatement can proceed immediately and without proof beyond the fact of the actual existence of the nuisance defined by statute or ordinance.  (See City of Costa Mesa v. Soffer (1992) 11 Cal.App.4th 378, 382–385, 13 Cal.Rptr.2d 735.)

5.   It is perhaps arguable that this is not a public nuisance abatement action at all.   The trial court did not ultimately rule on the County's public nuisance cause of action, as it had been rendered moot by the ruling in favor of the County's claim that the wrecking yard was a non-conforming use in violation of the Sonoma County Zoning Ordinance, which was the basis of the injunctive relief granted.   Nonetheless, because the County also sought to abate appellants' activities on the grounds of public nuisance, the trial court treated this as a public nuisance case and appellants have never challenged that characterization.

6.   The ordinance also differs from Civil Code section 3496 in that it only authorizes an award of fees to the county, not the prevailing party.

KLINE, Presiding Justice.

PHELAN and HODGE ***, JJ., concur.