Court of Appeals Upholds Rights of Cities to Seek Specialized Counsel
Written By Silver & Wright LLP
May 7, 2021

In a win for municipal rights across the State, the California Court of Appeals reaffirmed the rights of California cities to hire outside specialized counsel when addressing code enforcement violations. Importantly, and at the urging of Silver & Wright LLP attorneys, the Court also agreed to publish the opinion on the case in January 2021, making it possible for cities to cite the case in the future.

This case, and particularly the publishing of the court’s opinion, is a tremendous benefit for municipalities, not just for our clients, but for the 384 cities throughout the state that hire municipal law firms for city attorney and/or specialized legal services like code enforcement and housing.

 

Partner Rene Farjeat

The case in question, City of Norco v. Mugar, addressed the claims of the property owner, Mr. Mugar, that the City violated the First Amendment of the U.S. Constitution and Due Process provisions by hiring specialized, outside counsel to represent the City in seeking code compliance on his property, and claimed that the court’s award of costs to the City violated his right to defend in court. The court ultimately rejected these arguments and reaffirmed the right of public agencies to hire specialized private counsel for qualifying situations, and rejected the argument that cost recovery violates the Constitution, noting that these laws are not intended to chill access to the courts or right to litigate, but rather, to make whole the prevailing party. Parties to litigation, including code enforcement matters, have a right to strongly litigate their case; however, this comes with the risk that the other party, if prevailing, may be awarded its costs.

Given the nuanced nature of nuisance abatement and code enforcement, there are few firms or attorneys who have the training and knowledge to successfully litigate such cases. The ability of cities to hire firms such as Silver & Wright LLP means they are better able to enforce important laws that keep properties hazard-free and residents safe, while also ensuring the agency itself is complying with the law. It’s also important that, should a city need to hire legal counsel to assist in gaining compliance from a code violator, they be able to seek reimbursement for the costs, where authorized by law and desired by the city, so the burden does not fall on taxpayers.

Cities need to be able to enforce their laws in order to protect their communities and that’s why we implored the Court to publish this opinion. It wasn’t our firm’s case, but we saw the major implications of the ruling and wanted to make sure the details were available should a future claim arise.

 

Partner Rene Farjeat

Rene notes that another interesting implication of this case, and why the opinion is even more valuable, is that it confirms the “catalyst theory” of cost recovery in health and safety receivership cases. The catalyst theory is a long-established theory that applies in various types of cases, not just code enforcement. It is based on the fact that, in some cases, violators have no intention of correcting code violations until the City is forced to file a legal action against them. In those cases, the City should still be able to recover costs associated with litigation as the prevailing party, as long as the violator had notice and an opportunity to cure the violations, because the violator would not have fixed their property or stopped their other code violations but for the City filing suit. In other circumstances, some violators think the City is bluffing and believe they can continue violations unless and until the City forces compliance. The catalyst theory is relevant in code enforcement litigation, so having another case on point, and one that specifically applies to substandard housing enforcement, is helpful. This opinion will help strengthen the argument for cities in such instances, and in the big picture, will help cities improve the State’s substandard housing stock.

Silver & Wright LLP attorney Rene Farjeat helped prepare the request for a publication, and the Court of Appeals certified the opinion for publication on Jan. 8, 2021.

Rene Farjeat is a Partner with Silver & Wright LLP. He can be reached at RFarjeat@SilverWrightLaw.com.

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