Ogborn v. City of Lancaster

Opinion

Plaintiffs Craig and Kayla Ogborn sued the City of Lancaster (City) and individual city officials for various claims arising out of the City’s demolition of their rented home and its contents as part of a nuisance abatement program. The trial court granted summary judgment in favor of all defendants on the ground of qualified governmental immunity. We reverse the judgment in part and affirm in part.

Factual and Procedural Background

The Ogborns lived in a rented white stucco house on a 10-acre parcel in the City. The owner of the property, Donald Miller, Sr., also lived on the parcel in a mobilehome. The exterior portions of Miller’s property had for years contained large amounts of mbbish, junked vehicles and other unsightly conditions. The City ordered Miller to clean up his property and

The Ogborns’ first, second and third causes of action seek damages for an alleged violation of their right to due process of law before the City destroyed their property. Due process principles, under both the state and federal Constitutions, require reasonable notice and an opportunity to be heard before the government deprives a citizen of a significant property interest. (Horn v. County of Ventura (1979) 24 Cal.3d 605 , 612 [ 156 Cal.Rptr. 718 , 596 P.2d 1134 ]; United States v. James Daniel Good Real Property (1993) 510 U.S. 43 , 48 [ 114 S.Ct. 492 , 498, 126 L.Ed.2d 490 ].) The individual defendants contend they reasonably relied on the inspection and abatement warrant issued by Judge Rogers and therefore cannot be liable for bulldozing the Ogboms’ home and belongings even if the Ogboms’ constitutional rights were violated. We agree. The warrant authorized the City to enter the Property and “to inspect, investigate, search and abate the public nuisance thereon. Specifically, the Community Development Director or his designee, through city forces or by private contractor shall enter the property to: [¶] Remove the unpermitted and unsafe structures from the property.”

Both Craig and Kayla Ogborn submitted declarations in which they stated that “[a]t all times while we lived on the property, our house was habitable. The electricity, plumbing, water, and telephones were all in working order and fully functioning. The sinks, bathtub and toilet worked. There was adequate heating. There was proper ventilation. There was sufficient natural light. Electrical lighting was throughout the house. The windows were all maintained. All entries to the house were secure. There were no infestations of insects, rodents, or vermin. The house was connected to a sewage disposal system, utilizing a septic tank system. The foundation and flooring and floor supports were buckled. The ceiling and roof, along with all other supports, were adequate. No wiring problems existed. There were no broken windows; when they broke, I fixed them.” While this evidence might raise a question of fact as to whether the Ogborn home was in fact “unpermitted, unsafe, and substandard,” the record is clear that the nuisance proceedings that culminated in issuance of the warrant included findings that the Property contained “dilapidated buildings and structures” that constituted a nuisance. The

The doctrine of qualified governmental immunity is a federal doctrine that does not extend to state tort claims against government employees. (A sgari v. City of Los Angeles (1997) 15 Cal.4th 744 , 755-756 [ 63 Cal.Rptr.2d 842 , 937 P.2d 273 ] [“Governmental immunity for claims of violation of civil rights under section 1983 is not conferred expressly by statute, but is based upon a judicial gloss on section 1983,” whereas “governmental immunity under California law is governed by statute.”].) However, the individual defendants contend they are shielded from liability by various state statutory immunities. Section 820.2 provides: “[A] public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” We agree this section renders Hawley immune from the Ogborns’ state law tort claims for trespass and conversion, but disagree as to St. John.

Johnson v. State of California (1968) 69 Cal.2d 782 , 793 [ 73 Cal.Rptr. 240 , 447 P.2d 352 ] (Johnson), the leading case interpreting section 820.2, held that discretionary act immunity applies only to “ ‘basic policy deci sions'.’ ” In Johnson, a government official placed a “ ‘16 year old boy with homicidal tendencies’ ” in Mrs. Johnson’s home as a foster child and failed to warn her of the child’s “ ‘dangerous propensities,”’ even though the placement officer had notice of the danger. After five days in Mrs. Johnson’s home, the boy assaulted and injured her. (Id. at pp. 784-785.) Mrs. Johnson sued the state, alleging the state “ ‘[should] have told me I was getting a boy with a criminal and delinquent background.’ ” (Id. at p. 785, fn. 1.) The trial court granted summary judgment in favor of the state, on the ground the placement officer’s decision whether to warn of the boy’s potentially dangerous propensities was a “discretionary act” protected by section 820.2. (Johnson, at p. 786.)

The Supreme Court reversed. In construing the scope of section 820.2 immunity, the court held “[a] semantic inquiry into the meaning of ‘discretionary’ will not suffice as a criterion for interpreting section 820.2.” (Johnson, supra, 69 Cal.2d at p. 787, italics omitted.) The court instead analyzed the policy underlying a grant of immunity to determine what conduct should be protected by section 820.2. “ ‘Since obviously no mechanical separation of all activities in which public officials may engage as being either discretionary or ministerial is possible, the determination of the category into which a particular activity falls should be guided by the purpose of the discretionary immunity doctrine.’” (Johnson, at p. 790,

The court held section 820.2 provides immunity for “basic policy decisions,” but not “for the ministerial implementation of that basic policy.” (Johnson, supra, 69 Cal.2d at p. 796.) The court explained this distinction might also be characterized as “between the ‘planning’ and ‘operational’ levels of decision-making.” (Id. at p. 794.) It noted “[a]ny wider judicial review . . . would place the court in the unseemly position of determining the propriety of decisions expressly entrusted to a coordinate branch of government.” (Id. at p. 793.)

Using this analysis, the court held the decision to place the boy in the Johnsons’ home was a “basic policy decision,” but the decision whether to warn them of his violent propensities was ministerial. (Johnson, supra, 69 Cal.2d at p. 786.) “[Although a basic policy decision (such as standards for parole) may be discretionary and hence warrant governmental immunity, subsequent ministerial actions in the implementation of that basic decision still must face case-by-case adjudication on the question of negligence.” (Id. at p. 797.)

In this case, Hawley’s actions were unquestionably “discretionary” as that term is defined in Johnson, supra, 69 Cal.2d 782 . The Ogborns alleged in their complaint that Hawley was the director of the Department of Community Development, which was charged with administering the City’s nuisance abatement program. Hawley conducted the initial hearing at which Miller’s property was declared a public nuisance, and he sent a letter to Miller to that effect on May 29, 1998. There is no allegation and no evidence that he participated in any way in obtaining the warrant or bulldozing the Ogborns’ home. To the contrary, it is undisputed that Hawley was out of state on vacation from October 9 to October 19, 1998. In short, Hawley’s participation in this matter was limited to making the discretionary policy decision to declare the Property a nuisance. Accordingly, section 820.2 bars the Ogborns’ trespass and conversion claims against him.

By contrast, the evidence establishes that St. John actively participated in the implementation of the nuisance abatement program with respect to the Property. He was present at the Property on October 13, 1998, and personally gave the order for the bulldozer to demolish the Ogborns’ house. These actions constituted “subsequent ministerial actions in the implementation of the basic decision” to declare the Property a nuisance, and thus section 820.2 does not bar the Ogborns’ tort claims against St. John.

Section 821.8 provides that public employees are not liable for an entry onto property where the entry is under the express or implied authority of law. This immunity provision bars the Ogborns’ claim for trespassing because the warrant clearly authorized entry onto the Property and into the structures located there. However, this immunity provision does not bar the Ogborns’ claim for conversion of their belongings, which were not within the scope of the warrant.

5. The Other Cited Statutory Immunities Do Not Bar the Ogborns’ Conversion Claim Against St. John.

Section 822.2 provides, “A public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice.” One of the allegations in the complaint is that Tebbs misled Judge Rogers by omitting references to the Ogborns’ occupancy of the Property in the affidavit submitted in support of the warrant. However, the Ogborns’ tort claims are for trespass and conversion, not fraud or misrepresentation. The gravamen of the claims is breach of defendants’ duty to provide notice and a hearing before entering and destroying the Ogborns’ home and belongings. (Tallmadge v. County of Los Angeles (1987) 191 Cal.App.3d 251 , 254 [ 236 Cal.Rptr. 338 ] [conversion claim based on failure to provide due process is not barred by § 822.2].) At the very least, there is a question of fact as to whether a misrepresentation “caused” the Ogborns’ injury. Therefore, summary judgment based on section 822.2 is not appropriate.

Section 820.4 provides, “A public employee is not liable for his act or omission exercising due care, in the execution or enforcement of any law.” Because the warrant expressly authorized St. John to enter the Ogborns’ home, he is entitled to immunity under section 820.4 with respect to their claim for trespass. However, this statute does not support summary judgment as to the Ogborns’ conversion claim because a question of fact exists as to whether St. John’s reliance on the warrant constituted “due care” with respect to the handling of the Ogborns’ personal property. The Ogborns presented evidence that St. John stymied their efforts to save their personal property, and a trier of fact could find he failed to exercise due care when he ordered the bulldozers to go ahead without giving the Ogborns a chance to retrieve their belongings.

Section 821.6 provides that public employees are “not liable for injury caused by . . . instituting or prosecuting any judicial or administrative proceeding within the scope of his [or her] employment, even if [they]

Section 821.6 immunity is intended to prevent malicious prosecution actions against government officials and does not apply where, as here, the tort complained of occurred after the judicial or administrative proceeding has been completed. (Tallmadge v. Los Angeles County, supra, 191 Cal.App.3d at pp. 253-255 [§ 821.6 does not bar claim for conversion of weapons seized when plaintiff was arrested for unlawful possession of weapons].) In this case, the Ogborns do not complain that St. John acted improperly with respect to the proceedings that declared the Property a nuisance. Their complaint is that their belongings, which were not a part of those proceedings, were tortiously destroyed. Therefore, section 821.6 does not support the summary judgment on the Ogborns’ conversion claim.

6. The Trial Court Erred in Granting Summary Judgment in Favor of the City on the First, Second and Fourth Causes of Action.

The trial court concluded, without citation to authority, that the City was entitled to qualified governmental immunity to the same extent as the individual defendants. This was error. The federal qualified immunity defense protects individual officers, not municipalities or other governmental entities subject to suit under sections 1983 and 1985. (Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit (1993) 507 U.S. 163 , 166 [ 113 S.Ct. 1160 , 1162, 122 L.Ed.2d 517 , 523]; Owen v. City of Independence (1980) 445 U.S. 622 , 638 [ 100 S.Ct. 1398 , 1409, 63 L.Ed.2d 673 , 685-686].)

The City, of course, cannot be held liable under section 1983 for an injury caused solely by its agents or employees in the absence of a City policy, official decision or custom. (Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658 , 694 [ 98 S.Ct. 2018 , 2037, 56 L.Ed.2d 611 , 638]; Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869 , 881 [ 271 Cal.Rptr. 513 ].) However, the City did not move for summary judgment on the ground that the Ogboms’ injuries were not the result of an official City act. To the contrary, the City acknowledges the city council passed a resolution finding the Property to be a nuisance and ordering its abatement. “Local governmental entities ‘ “can be sued directly under § 1983 for monetary, declaratory, or

Lillie, P. J., and Woods, J., concurred.

Appellants’ petition for review by the Supreme Court was denied October 16, 2002.