CC SR 20150707 G Ord 570 Amd Muni Code Atty FeesCITY OF tiRANCHO PALOS VERDES
MEMORANDUM
TO: HONORABLE MAYOR & CITY COUNCIL MEMBERS
FROM: CAROL W. LYNCH, CITY ATTORNEY;L
DATE: JULY 7, 2015
SUBJECT: ADOPTION OF ORDINANCE NO. 570 - AMENDMENTS
TO MUNICIPAL CODE RELATING TO RECOVERY OF
ATTORNEYS' FEES BY A PREVAILING PARTY AND
ENFORCEMENT OF PARKING RESTRICTIONS BY
VOLUNTEERS ON PATROL
REVIEWED: DOUG WILLMORE, CITY MANAGER 9/f`'
RECOMMENDATION
ADOPT ORDINANCE NO. 570, AN ORDINANCE OF THE CITY OF RANCHO PALOS
VERDES AUTHORIZING RECOVERY OF ATTORNEYS' FEES BY PREVAILING
PARTY AND AUTHORIZING MEMBERS OF THE LOS ANGELES SHERIFF'S
DEPARTMENT'S VOLUNTEERS ON PATROL PROGRAM TO ISSUE PARKING
CITATIONS AND AMENDING SECTIONS 1.08.010, 1.16.250, 1.16.260, 5.04.220,
8.16.020, 8.24.090, 8.24.190, 9.28.130, 9.28.160, 9.28.190, 10.32.020, AND 17.02.040
OF THE RANCHO PALOS VERDES MUNICIPAL CODE.
RECOVERY OF ATTORNEYS' FEES
The City of Rancho Palos Verdes Municipal Code contains several enforcement methods
to address code violations, both civil and criminal. One enforcement method is a civil
nuisance action and recovery of attorneys' fees. Government Code Section 38773.5
authorizes a city to adopt an ordinance providing for recovery of attorney's fees in any
action, administrative proceeding, or special proceeding to abate a nuisance. However,
Government Code Section 38773.5 requires that any such ordinance must provide for
recovery of attorneys' fees by the prevailing party, rather than limiting recovery of
attorneys' fees to the City if it prevails. The ordinance may limit recovery of attorneys' fees
by the prevailing party to those individual actions or proceedings in which the City elects,
at the initiation of that individual lawsuit, to seek recovery of its own attorneys' fees. The
1
Adoption of Ordinance No. 570 - Amendments to Municipal Code - Recovery of Attorneys' Fees
by Prevailing Party and Enforcement of Parking Restrictions by City Volunteers
July 7, 2015
Page 2 of 3
statute also provides that in no action, administrative proceeding, or special proceeding
shall an award of attorneys' fees to a prevailing party exceed the amount of reasonable
attorneys' fees incurred by the city in the action or proceeding.
DISCUSSION
The Rancho Palos Verdes Municipal Code authorizes the City to pursue recovery of
attorneys' fees in some but not all types of code enforcement actions. The City Attorney's
office has prepared the attached ordinance to update the Municipal Code for the recovery
of attorneys' fees in accordance with Government Code Section 38773.5, in the areas of
delinquent business license taxes, weed and debris blowers, property maintenance,
graffiti prevention and removal, and view preservation.
Although many code enforcement actions require only minimal legal work, in cases when
property owners refuse to comply with the requirements of the Code, legal proceedings
may require substantial expenditure of time and attorneys' fees. The potential for the City
to recover attorneys' fees may facilitate resolution of the dispute, because the property
owner will understand that failure to prevail in the litigation may result in his or her
responsibility to pay the City's attorneys' fees in addition to other compliance
responsibilities. The proposed ordinance provides for recovery of attorneys' fees by the
prevailing party in addition to recovery of staff time expended and reasonably related to
nuisance abatement cases.
ENFORCEMENT OF PARKING RESTRICTIONS
Title 10 of the Rancho Palos Verdes Municipal Code contains parking and traffic
regulations that supplement state law requirements contained in the California Vehicle
Code. Currently, parking citations are issued by Sheriff's deputies serving as the City's
police department, and paid community service officers (non -sworn), pursuant to the
City's contract with the Los Angeles County Sheriff's Department. Volunteers retained
through the Los Angeles County Sheriffs Department's Volunteers on Patrol program
also provide services for the City under the direction of the Sheriffs department, but do
not currently issue parking citations.
DISCUSSION
Pursuant to direction from the City Council, the ordinance will authorize volunteers from
the Sheriffs Department's Volunteers on Patrol program to issue parking citations in the
City of Rancho Palos Verdes. Individuals in this program currently provide volunteer
services to the City under the existing contract between the City and the Sheriffs
Department, and consequently no amendment to the current contract would be required
in order for these volunteers to also provide parking citation services as part of their
2
Adoption of Ordinance No. 570 - Amendments to Municipal Code - Recovery of Attorneys' Fees
by Prevailing Party and Enforcement of Parking Restrictions by City Volunteers
July 7, 2015
Page 3 of 3
volunteer duties.
FISCAL IMPACT
The adoption of this ordinance will allow the City to recover its attorneys' fees and costs
when the City prevails in judicial actions relating to nuisance abatement and code
enforcement. The limitations on the property owner to recover attorneys' fees to only
those actions in which the City elected to recover attorneys' fees and to limit private
recovery of attorneys' fees to the amount incurred by the City help limit the City's exposure
in the unlikely event the property owner is the prevailing party in a lawsuit.
The addition of parking enforcement to the duties of persons participating in the
Volunteers on Patrol Program would be included in the current oversight responsibilities
of the Sheriffs Department over that program, and because these individuals serve in an
unpaid capacity, no additional costs should be incurred by the City.
CONCLUSION
Staff recommends that the City Council adopt the attached ordinance, which will
become effective thirty days following its adoption.
Attachment
Ordinance No. 570 - Authorizing Recovery of Attorneys' Fees by Prevailing Party and
Authorizing Members of the Los Angeles Sheriff's Department's Volunteers On Patrol
Program to Issue Parking Citations
9
ORDINANCE NO. 570
AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES
AUTHORIZING RECOVERY OF ATTORNEYS' FEES BY PREVAILING
PARTY AND AUTHORIZING MEMBERS OF THE LOS ANGELES SHERIFF'S
DEPARTMENT'S VOLUNTEERS ON PATROL PROGRAM TO ISSUE
PARKING CITATIONS AND AMENDING SECTIONS 1.08.010, 1.16.250,
1.16.260, 5.04.220, 8.16.020, 8.24.090, 8.24.190, 9.28.130, 9.28.160, 9.28.190,
10.32.020, AND 17.02.040 OF THE RANCHO PALOS VERDES MUNICIPAL
CODE
THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES ORDAINS AS
FOLLOWS:
Section 1. Subsection (C) of Section 1.08.010 of Chapter 1.08, General
Penalty, of the Rancho Palos Verdes Municipal Code is hereby amended to read as
follows (proposed additions are highlighted):
"C. Nuisances. In addition to the penalties provided in subsections A and B of
this section, any condition caused or permitted to exist in violation of any of the
provisions of this Code shall be deemed a public nuisance and may be, by this
city, summarily abated as such. Each day that the condition continues shall be
considered a new and separate offense. The prevailing party in any proceeding
associated with a violation of the Code, the abatement of a public nuisance, or
where a violation of any provision of the Code has been declared a public
nuisance, shall be entitled to recovery of attorneys' fees incurred in any such
proceeding, where the city has elected, at the initiation of that individual action or
proceeding, to seek recovery of its own attorneys' fees. In no action, administrative
proceeding, or special proceeding shall an award of attorneys' fees to a prevailing
party exceed the amount of reasonable attorneys' fees incurred by the city in the
action or proceeding:"
Section 2. Section 1.16.250 of Chapter 1.16 (Administrative Penalties) of the
Rancho Palos Verdes Municipal Code is hereby amended to read as follows (proposed
addition highlighted):
1.16.250 - Failure to comply with administrative order.
Failure to comply with an administrative order after it becomes final is a
misdemeanor and punishable as provided in Chapter 1.08 (General Penalf�)` of
this Code, Filing a criminal misdemeanor action does not preclude the city from
using any other legal remedy available to gain compliance with the administrative
order. The city shall be entitled to recover its attorneys' fees and costs arising from
an action to gain compliance with the administrative order if it is the prevailing party
and ,provided it made the election to seek attorneys' fees at the commencement of
the action. A responsible person shall be entitled to recover his or her attorneys'
fees if the city made the election to seek attorneys' fees at the outset of the action
al -
1848430v1
to gain compliance with the administrative order and fie responsible person
prevails in that action. In no such legal action shall an award of costs, including
reasonable attorneys' fees, to a prevailing party exceed the amount of costs,
including reasonable attorneys' fees, incurred by the city in the action or
proceeding."
Section 3. Section 1.16.260 of Chapter 1.16 (Administrative Penalties) of the
Rancho Palos Verdes Municipal Code is hereby amended to read as follows (proposed
addition highlighted):
1.16.260 - Remedies Cumulative.
The conviction and punishment of any person for failure to comply with any
provision of this Code shall not relieve such person from paying any tax, fee,
penalty or interest due and unpaid at the time of such conviction, nor shall payment
prevent a criminal prosecution or a civil enforcement action or administrative
penalty for violation of any of the provisions of this chapter or the Code. All
remedies set forth herein are cumulative, and the use of any one or more remedies
by the city shall not bar the use of any other remedy for the purpose of enforcing
the provisions of this chapter or the Code."
Section 4. Section 5.04.220 (Delinquent taxes—Penalties--Installment
payment) of Chapter 5.04 (Business Licenses) of the Rancho Palos Verdes Municipal
Code is hereby amended to read as follows (proposed deletions 6tFUGk-out; proposed
additions highlighted):
"C. In any agreement so entered into, such person shall acknowledge the
obligation owed to the city and agree that, in the event of failure to make timely
payment of any installment, the whole amount unpaid shall become immediately
due and payable and that his current license shall be revocable by the collector
upon thirty days' notice. In the event legal action is brought by the city to enforce
collection of any amount included in the agreement,-sec#-W-saR--,hall-pay- H costs
ef-sai#-insorr-ed--by-the-cit"r-its.-as ee. inoluding-a-reasonable att sfee-.
the prevailing party shall be entitled to recovery of all costs of suit, including
reasonable attorneys' fees, incurred in any such legal action, where the city has
elected, at the initiation of that individual action or proceeding, to seek recovery of
its own attorneys' fees. In no such legal action shall an award of costs, including
reasonable attorneys' fees, to a prevailing party exceed the amount of costs,
including reasonable attorneys' fees, incurred by the city in the action or
proceeding. The execution of such an agreement shall not prevent the prior accrual
of penalties on unpaid balances at the rate provided in this chapter, but no
penalties shall accrue on account of taxes included in the agreement after the
execution of the agreement and during such time as such person is not in breach
of the agreement."
-2- 5
Section 5. Section 8.16.020 of Chapter 8.16 (Weed and Debris Blowers) of the
Rancho Palos Verdes Municipal Code is hereby amended to read as follows (proposed
additions highlighted):
"8.16.020 - Violation—Penalty.
Violation of this chapter shall be an infraction and punishable as provided in
subseetisn—ice of -Sectio �M e4:neanGrs '—,�#FaG- tsps—N-u sanGes)
Chapter 1.08 (General Penalty) of this cCode.'
Section 6. Subsection C of Section 8.24.090 (Abatement of public nuisances by
the city), of Chapter 8.24 (Property Maintenance) of the Rancho Palos Verdes Municipal
Code is hereby amended to read as follows (proposed additions highlighted):
"C. Notwithstanding compliance with the notice and order, the owner, and any
other persons having an interest in the property described in the notice, shall in all
events be jointly and severally liable for all costs incurred by the city in securing
such compliance, including those costs identified in Section 8.24.110A. Moneys
due the city pursuant to this subsection may be recovered in an appropriate civil
action. Alternatively, costs may be recovered by the city in the same manner that
abatement costs are recovered pursuant to this chapter. The city shall be entitled
to recover its attorneys' fees and costs arising from any abatement action or other
civil action to enforce this chapter if the city is the prevailing party and provided it
made the election to seek attorneys' fees at the commencement of the action. A
responsible person shall be entitled to recover his or her attorneys' fees if the city
made the election to seek attorneys' fees at the outset of the action and the
responsible person prevails in that action. In no such legal action shall an award
of costs, including reasonable attorneys' fees, to a prevailing party exceed the
amount of costs, including reasonable attorneys' fees, incurred by the city in the
action or proceeding."
Section 7. Section 8.24.190 (Penalty for violation) of Chapter 8.24 (Property
Maintenance) of the Rancho Palos Verdes Municipal Code is hereby amended to read as
follows (proposed deletions atr-uG"ut; proposed additions highlighted):
"8.24.190 - Penalty for violation.
Any person violating any of the provisions or failing to comply with any of the
requirements of this chapter shall be guilty of a misdemeanor and, upon conviction
therefor, shall be punishable as provided for in Chapter 1.08 of this Code. All
remedies set forth herein are cumulative, and the use of any one or more remedies
by the city shall not bar the use of any other remedy for the purpose of enforcing
the provisions of this chapter or the Code."
Section 8. Subsection A of Section 9.28.130 (Assessment of costs against
property owner or graffiti perpetrator) of Chapter 9.28 (Graffiti Prevention and Removal)
of the Rancho Palos Verdes Municipal Code is hereby amended to read as follows
(proposed additions highlighted):
-3- 6
"A. The city employee shall keep an accounting of the costs of the abatement
of the graffiti and shall submit to the city council an itemized report showing such
costs of the abatement. Such costs may include, but are not limited to, any and all
direct costs and expenses related to abatement of the graffiti such as investigation,
measurement, clean up, repairs, personnel salaries and benefits, operational
overhead, fees for experts or consultants, legal costs or expenses, including
attorneys' fees, claims against the city arising as a consequence of the graffiti
removal, clerical and administrative costs, and procedures associated with
collecting moneys due hereunder. The city council may modify the report, as the
council deems necessary, and shall confirm the report by motion or resolution."
Section 9. Subsection B of Section 9.28.160 (Parental liability) of Chapter 9.28
(Graffiti Prevention and Removal) of the Rancho Palos Verdes Municipal Code is hereby
amended to read as follows (proposed additions highlighted):
"B. Pursuant to California Civil Code Section 1714.1, the parent(s) or legal
guardian(s) having custody and control of a minor shall be personally liable for any
act of willful misconduct by a minor that results in graffiti for all purposes of civil
damages, including court costs and a}}rtrTcvcney's attorneys' fees to the prevailing
party, subject to section 9.28.190 of this Code. The parent(s) or legal guardian(s)
having custody and control shall be jointly and severally liable with the minor for
any damages resulting from the willful misconduct, including any and all costs to
the city incurred in connection with the removal of said graffiti, not to exceed
twenty-five thousand dollars."
Section 10. Section 9.28.190 (Cumulative remedies) of Chapter 9.28 (Graffiti
Prevention and Removal) of the Rancho Palos Verdes Municipal Code is hereby
amended to read as follows (proposed additions highlighted):
"9.28.190 - Cumulative remedies; attorneys' fees.
The remedies provided in this chapter are in addition to and do not supersede or
limit any other remedies and penalties available under provisions of other
applicable city ordinances, the laws of the state of California, or the laws of the
United States. The city shall be entitled to recover its attorneys' fees and costs
arising from any civil action or administrative proceeding to enforce the provisions
of this chapter and Code if the city is the prevailing party and provided it made the
election to seek attorneys' fees at the commencement of the action. A responsible
person shall be entitled to' recover his or her attorneys' fees if the city made the
election to seek attorneys' fees at the outset of the action and the responsible
person prevails in that action. In no such legal action shall an award of costs,
including reasonable attorneys' fees, to a prevailing party exceed the amount of
costs, including reasonable attorneys' fees, incurred by the city in the action or
proceeding."
-4- 7
Section 11. Section 10.32.020 Definitions of Chapter 10.32 (Parking Citation
Processing) of the Rancho Palos Verdes Municipal Code is hereby amended to read as
follows (proposed additions highlighted):
" "Issuing officer" means a peace officer, as defined in Chapter 4.5 (commencing
with Section 830) of Title 3 of the California Penal Code, or the successor statutes
thereto, or any member of the Los Angeles County Sheriffs Department's
Volunteers on Patrol Program or any city employee or other person authorized by
the city to issue a parking citation."
Section 12. Paragraph 2(h) of Subsection C of Section 17.02.040 of Chapter
17.02 (Single -Family Residential (RS) Districts) of the Rancho Palos Verdes Municipal
Code is hereby amended to read as follows (proposed additions highlighted):
"h. If, after ninety calendar days, the foliage has not been removed or trimmed
in accordance with the requirements of a view restoration or view preservation
permit, the city of Rancho Palos Verdes will authorize a bonded tree service to
trim, cull, lace or remove the identified foliage at the owner's expense. In the event
that the city is required to perform the work, the foliage owner will be billed for all
city expenses incurred in enforcing the view restoration or preservation permit
(including reasonable atte 's attorneys' fees). If the property owner does not
pay the city for the amount set forth on the invoice, the city may record a lien or
assessment against the foliage owner's property, pursuant to Chapter 8.24 of this
Code, or pursue any and all available criminal or civil remedies for recovery of'said
city expenses in accordance with paragraph i of this section or chapter 1.08 of the
Code."
Section 13. Section 17.02.040(C)(2) of Chapter 17.02 (Single -Family Residential
(RS) Districts) of the Rancho Palos Verdes Municipal Code is hereby amended by adding
new paragraph i to read as follows (proposed additions highlighted):
`°i. The remedies provided in this section are in addition to and do not
supersede or limit any other remedies and penalties available under provisions of
other applicable city ordinances, the laws of the state of California, or the laws of
the United States. In the event of any violation of this section, the city may pursue
any and all available criminal or civil remedies to prevent or remedy violations of
this section set forth in chapter 1.08 of the Code or as otherwise provided by law.
The city shall be entitled to recover its attorneys' fees and costs arising from any
civil action or administrative proceeding to enforce the provisions of this chapter
and the Code if the city is the prevailing party and provided it made the election to
seek attorneys' fees at the commencement of the action, A responsible person
shall be entitled to recover his or her attorneys' fees if the city made the election
to seek attorneys' fees at the outset of the action and the responsible person
prevails in that action. In no such legal action shall 'an award of costs, including
reasonable attorneys' fees, to a prevailing party exceed the amount of costs;
including reasonable attorneys' fees, incurred by the city in the action or
proceeding."
-5- $
Section 14. If any section, subsection, subdivision, paragraph, sentence, clause
or phrase of this Ordinance or any part hereof or exhibit hereto is for any reason held to
be invalid, such invalidity shall not affect the validity of the remaining portions of this
Ordinance or any part thereof or exhibit thereto. The City Council of the City of Rancho
Palos Verdes hereby declares that it would have passed each section, subsection,
subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that
any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or
phrases be declared invalid.
Section 15. The City Clerk of the City of Rancho Palos Verdes shall certify to the
passage of this ordinance and shall cause same to be posted pursuant to state law within
fifteen (15) days after its passage, and this ordinance shall become effective thirty (30)
days after its passage.
PASSED, APPROVED and ADOPTED, this 7th day of July, 2015.
Mayor
Attest:
City Clerk
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES )
CITY OF RANCHO PALOS VERDES)
I, Carla Morreale, City Clerk of the City of Rancho Palos Verdes, California, hereby certify
that Ordinance No. 570 was introduced at a regular meeting of the City Council of the City
of Rancho Palos Verdes held on June 30, 2015, and thereafter was adopted by the City
Council at a regular meeting held on July 7, 2015, and that the same was adopted by the
following roll call vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
City Clerk