Opinion
H041518
08-18-2017
ANTOINETTE JARDINE BYRNE, Plaintiff and Appellant, v. COUNTY OF SANTA CRUZ et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. CV164568)
Pro per plaintiff Antoinette Jardine Byrne brought an action against the County of Santa Cruz and various county entities and officials (collectively, the County). The action challenged the County's code enforcement activities in connection with an illegally converted barn on her property. The trial court denied Byrne's motion to file a third amended complaint adding defendants and causes of action she claimed to have inadvertently or mistakenly omitted from her second amended complaint. The trial court's order did not resolve the eight causes of action asserted in the second amended complaint.
The parties refer to that action (CV164568) as the code enforcement action. They refer to the related action that Byrne filed in the superior court (CV170704) as the tax refund action. We will do the same.
Byrne purports to appeal from the trial court's order denying her leave to amend. We conclude that the order was interlocutory and nonappealable, and we dismiss the purported appeal.
I. Background
In 2007, it came to the County's attention that Byrne was living in a barn on her property that had been converted into a residence without the required permits. The County issued a notice of violation. Byrne failed to take corrective action, and an administrative hearing was conducted. In April 2008, the hearing officer ordered Byrne to obtain the required permits and inspections to legalize or demolish the converted barn. Byrne was also ordered to pay $5,420.49 in code enforcement costs and a $1,000 civil penalty. The hearing officer's decision provided that "[t]he County's enforcement costs and civil penalties are ordered to be a personal obligation against the Owner or a Special Assessment Lien against the real property and collected on the secured tax roll."
Byrne obtained two extensions of the deadlines set for her compliance with the April 2008 order. Her application for a third extension was denied in May 2009. She appealed that decision, seeking trial de novo in the superior court. The court heard Byrne's administrative appeal in September 2009 and found no good cause for a further extension of time. The court affirmed the administrative decision and ruled that all hearing officer decisions preceding the May 20, 2009 denial of a further extension were final as Byrne had not timely appealed them. Byrne moved for a new trial in a different county. The motion was denied.
Byrne filed the underlying lawsuit challenging the County's code enforcement actions in July 2009. Her in pro per pleading was captioned "Petition for Administrative Mandamus (CCP § 1094.5), Writ of Mandate (CCP § 1085); Complaints [sic] for Cancellation of Instrument; Failure to Perform Mandatory Duty; Excessive and Improper Fees; Violation of Civil Rights; Inverse Condemnation; Declaratory Relief; and Injunctive Relief of Preliminary and Permanent Injunction and Civil Penalties, Costs, Civil Code § 52, 42 USC 1983." It named as defendants the County of Santa Cruz, its planning department, its director and various employees. Also named as defendants were the County Board of Supervisors and various individual supervisors. The gravamen of the complaint was that the County violated state law and Byrne's civil rights by enforcing local ordinances that she contended were preempted by state law.
The County removed Byrne's code enforcement action to federal district court in August 2009 on grounds that her seventh cause of action could be read to state a claim under 42 U.S.C. section 1983 and her state law inverse condemnation claim referenced the Fifth and Fourteenth Amendments of the federal Constitution.
Byrne filed a second amended complaint in October 2010. That pleading omitted five causes of action (for administrative and traditional mandamus, inverse condemnation, and preliminary and permanent injunctive relief) that she had asserted in her original complaint. It added a new cause of action for "Failure to Perform Ministerial Duty." The director and employees of the planning department remained as defendants but the department itself was no longer named.
In September 2012, the district court granted summary judgment for the County on Byrne's federal civil rights claim, ruling that the undisputed facts established no constitutional violation. The court remanded Byrne's remaining claims to state court.
In January 2013, Byrne filed a motion for leave to file a third amended complaint "as a relief from mistake, inadvertence, surprise, [or] excusable neglect . . . ." The proposed pleading was captioned "Third Amended Petition for Administrative Mandamus (CCP § 1094.5) and Writ of Mandate (CCP § 1085); Third Amended Complaints [sic] for: Expungement of Illegal Recordations; Violation of Civil Rights; Declaratory Relief; and for Preliminary and Permanent Injunction; Jury Trial Demand; Damages; Violation of Civil Code CIVIL CODE § 52.1(b)." The county's planning department was again named as a defendant. An additional planning department employee was added as a defendant, as was the County's treasurer/tax collector. Causes of action related to Byrne's separate tax refund action against the County were also added. Byrne asserted in her motion papers that she was "acting in pro per in this action" with "no experience or knowledge of litigation and court filings of this nature."
In the related tax refund action (CV 170704), Byrne sought to recover code enforcement costs and civil penalties that she alleged were illegally added to her 2009/2010 property tax bill. A successful judicial mediation in 2013 culminated in an oral agreement to settle the tax refund action and to partially settle this code enforcement action (by precluding Byrne from raising in the code enforcement action any issue related to the fees and penalties on her tax bill and whether or not the administrative hearing officer had the authority to place such fees and penalties on her tax bill). In 2014, Byrne moved to set aside the settlement. The trial court denied her motion and granted the County's request to enforce the agreement. That ruling is the subject of a separate appeal (H041467). --------
The parties stipulated to multiple continuances of the hearing on Byrne's motion. The court denied the motion following a hearing on September 11, 2014. The court explained that the proposed pleading purported to reassert claims "that were asserted in 2009 and voluntarily dismissed by the plaintiff." "It's being offered after a long unexplained delay. . . . The Court has the discretion to deny a motion to amend based on those factors and I'm exercising that discretion." "The over two-year delay . . . is unreasonable. Discovery has been completed. [¶] The request to amend is denied." As an additional ground for denying the motion, the court ruled that the claims Byrne proposed to add were either time-barred, barred by the doctrine of collateral estoppel, or precluded by the parties' settlement of her related tax action (CV170704). The court ruled that "[t]he Second Amended Complaint remains operative." The court set a date for a jury trial of Byrne's code enforcement action.
The court's written order was filed on October 2, 2014. Notice of entry of the order was served on October 7, 2014. On October 17, 2014, Byrne purported to appeal from the written order.
II. Discussion
The County contends that Byrne's appeal must be dismissed because the order appealed from is a nonappealable order. We agree.
"A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment. [Citations.]" (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696 (Griset).) "A trial court's order is appealable when it is made so by statute." (Ibid.; Code Civ. Proc., § 904.1, subd. (a).) "Section 904.1 directs that an appeal may be taken '[f]rom a judgment' (§ 904.1, subd. (a)(1)) and in its remaining subdivisions lists various specific additional appealable orders that stand as exceptions to the general rule." (In re Baycol Cases I and II (2011) 51 Cal.4th 751, 756, fn. 3.) "An order denying leave to amend a complaint is not appealable, unless it has the effect of eliminating all issues between the plaintiff and a defendant so that there is nothing left to be tried and determined." (Figueroa v. Northridge Hospital Medical Center (2005) 134 Cal.App.4th 10, 12 (Figueroa).)
The plaintiff in Figueroa sought leave to convert two of her six individual claims against her employer into class action claims. (Figueroa, supra, 134 Cal.App.4th at p. 11.) The trial court denied the motion, finding among other things that Figueroa " 'unreasonably delayed' " seeking to add the class claims and that the defendants would be prejudiced if amendment were allowed after costly discovery and mediations had already been conducted. (Id. at p. 12.) The Court of Appeal dismissed Figueroa's purported appeal from the decision for lack of jurisdiction. (Id. at p. 14.) The court explained that "[t]he order denying leave to amend in this case does not eliminate any issues between [Figueroa] and [the defendants]. All six of the original claims between the parties remain extant." (Id. at pp. 12-13.) "Because [Figueroa] has taken an appeal from a nonappealable order, the appeal must be dismissed." (Id. at p. 13.)
Figueroa is directly on point and supports the same result here. The trial court's order denying Byrne leave to amend did not eliminate any of the causes of action that she asserted in her second amended complaint, which remains operative. The trial court's order was nonappealable. (Figueroa, supra, 134 Cal.App.4th at p. 13.) We lack jurisdiction to hear Byrne's purported appeal. (Griset, supra, 25 Cal.4th at p. 696.)
III. Disposition
The purported appeal is dismissed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.