Filed 5/27/15 Jensen v. County of Sonoma CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE



ROSEMARY JENSEN et al.,
         Plaintiffs and Appellants,
                                                                     A139466
v.
COUNTY OF SONOMA,                                                    (Sonoma County
                                                                     Super. Ct. No. SCV-250210)
         Defendant and Respondent.


         Rosemary Jensen and her son, Randy Jensen,1 bring this action for an
administrative writ of mandate, challenging an abatement order concerning the use of
their Sonoma property. In the underlying administrative proceedings, the hearing officer
found plaintiffs used the subject property as a junkyard and for storage of nonoperative
vehicles in violation of chapter 26 of the Sonoma County Code, and ordered plaintiffs to
abate and pay various administrative costs and civil penalties. Plaintiffs subsequently
filed a writ petition against Sonoma County (the County) pursuant to Code of Civil
Procedure section 1094.5,2 asserting, inter alia, the administrative hearing constituted a
violation of their civil rights. After a bench trial, the court entered judgment in favor of
the County. Plaintiffs now argue (1) the trial court erred by reviewing the decision of the
         1
          Because Rosemary and Randy share the same surname, we shall refer to them
by their first names for the sake of clarity and readability. We intend no disrespect in
doing so.
         2
        All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.
hearing officer for substantial evidence; (2) the abatement order is void because plaintiffs
were ordered to pay the costs of the hearing officer; (3) plaintiffs were denied their right
to a fair administrative hearing; and (4) due to separation of powers concerns, the hearing
officer lacked authority to order abatement. We find plaintiffs’ claims meritless and
affirm.
                                     I. BACKGROUND
          Rosemary is the record owner of the property at issue, which is 18 acres and
located in an unincorporated area of Sonoma County. In November 2006, the County
received an anonymous complaint that she and her son Randy were operating an
unauthorized wrecking and salvage yard on the property. Plaintiffs denied operating a
vehicle storage yard or junkyard on the property, but allowed an inspection by the
County. During the scheduled inspection, the County discovered on the property over
200 vehicles, over 10 commercial trailers, three tow trucks, two forklifts bearing the
name “Jensen Automotive,” various trailers, and miscellaneous junk and metal piles
exceeding 1,000 square feet.
          In March 2007, the County’s permit and resource management department
(PMRD) sent Rosemary a notice of violation, asserting the property could not be used for
nonoperative vehicle storage or as a truck or equipment depot or junkyard, since the area
was zoned “Diverse Agriculture.” The notice stated Rosemary was required to cease and
remove the unlawful use, and failure to do so within 30 days would result in substantial
penalties. Rosemary was given 12 days to appeal the determination of violation. She
declined to do so, and the PMRD set an administrative hearing to obtain an order
requiring cessation of the unlawful use. In May 2007, plaintiffs sent a letter to the
County denying any violation, but stating Randy “plann[ed] to proceed with obtaining
building permits necessary to house his car hobby,” and requested deferral of any
administrative proceeding in the matter.
          After several postponements, the abatement hearing was held on March 7, 2008.
Under the procedures adopted by the County, such hearings need not be conducted
according to technical rules relating to evidence and witnesses. Any relevant evidence


                                               2
may be considered if it is the sort upon which “responsible persons are accustomed to
rely in the conduct of serious affairs, regardless of the existence of any common law or
statutory rule which might make [admission] improper.” The hearing procedures also
limit each speaker’s presentation to 10 minutes, but grant the hearing officer discretion to
extend the time limit. At the abatement hearing, plaintiffs repeatedly asserted these rules
violated their constitutional rights, and that they were “entitled to all the due process
requirements as would apply in a criminal proceeding.”
       With respect to the substantive matters addressed at the abatement hearing,
plaintiffs asserted they had a protected grandfathered use of their property pursuant to
Hansen Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12 Cal.4th 533.
Plaintiffs also contended the collection of automobiles on the property was not a junkyard
or a truck depot, but merely a longtime family hobby. Rosemary testified that, along with
her deceased husband, she had owned the property since 1973. Prior to that, her
husband’s parents owned the property. According to Rosemary, her husband and then
her son Randy had been collecting cars on the property for at least 60 years. She also
said her husband and Randy fixed cars, and Randy sometimes raced them. Likewise,
Randy testified he had inherited a car collection from his father, and his hobby was
collecting, fixing, selling, and racing cars. He asserted his cars were not visible from
outside the property, and they did not bother the neighbors. Randy denied there was any
junk on the property, but conceded 20 to 25 percent of his vehicles were inoperable.
       The hearing officer found the property was in violation of chapter 26 of the
Sonoma County Code with respect to junkyard conditions, nonoperative motor vehicle
storage, and truck or equipment terminal. The hearing officer concluded: “That the
vehicles were collected pursuant to a hobby and may not be visible from offsite, and that
the commercial vehicles are allegedly not used offsite are not legally relevant under the
applicable County Code provisions. Although some of the vehicles are ‘vehicles of
historic value’ that do not qualify as ‘nonoperative motor vehicles,’ clearly most are not.”
The hearing officer also rejected plaintiffs’ contention their use of the property was
legally nonconforming: “No evidence supports that the property contained such an


                                              3
extensive collection of motor vehicles at the time the Exclusive Agricultural zoning was
applied to the subject property in 1974 (a year or two after the Jensens took possession of
the property), and an aerial photograph from 1980 supports that it did not. . . . Even if a
motor vehicle collection existed as of 1974, the evidence demonstrates that it has been
significantly enlarged and extended since that time.”
       Plaintiffs were ordered to pay the County’s administrative costs of $2,973.75,
which consisted of $1,886.25 for abatement, $900 for the hearing officer, and $187.50 for
the court reporter. They were also assessed civil penalties of $8,257. The hearing officer
ordered plaintiffs to abate the conditions on the property within 45 days. Plaintiffs were
to request inspection to verify abatement of the violation.
       Plaintiffs then filed an action in federal court, asserting various civil rights
violations by the County, including claims under title 42 United States Code
section 1983. Among other things, plaintiffs asserted the County violated their due
process right to a fair and impartial hearing, their First Amendment right to free speech
and to petition, their right against unreasonable search and seizure, their Fifth
Amendment right against excessive fines, their right to equal protection of the law, as
well as a violation of article I, section 1 of the California Constitution, which accords all
people the right to life, liberty, and property. They alleged the administrative hearing
“was conducted with total disregard of any organized fashion for presenting and rebutting
evidence,” the County interfered with their right to cross-examine witnesses, and the
hearing officer was biased. The federal court granted summary judgment in favor of the
County. (Jensen v. County of Sonoma (N.D.Cal. June 4, 2010, No. C-08-3440 JCS)
2010 WL 2330384 (Jensen), affd. (9th Cir. 2011) 444 Fed.Appx. 156.)
       At some point, plaintiffs filed this administrative mandamus action pursuant to
section 1094.5. As in the federal action, plaintiffs asserted deprivations of various rights
under the California and United States Constitutions. In December 2012, the trial court
granted the County’s motion for summary adjudication as to plaintiffs’ claim for
violation of article I, section 1 of the California Constitution, finding the federal court had



                                               4
already determined there was no evidence to support such a claim. The court also
rejected plaintiffs’ claim for invasion of privacy.
       The remainder of plaintiffs’ claims were adjudicated at a half-day bench trial.
The trial court issued a thorough and considered statement of decision and found in favor
of the County on each and every issue. Specifically, the court found as follows: (1) the
administrative order was not void for imposing the adjudicator’s costs on plaintiffs;
(2) the County had a rational basis for enacting and enforcing the pertinent zoning
ordinances; (3) the County did not engage in impermissible spot zoning; (4) plaintiffs’
claim that they were denied a meaningful opportunity to be heard had already been
rejected by the federal court and could not be relitigated; (5) substantial evidence
supported the hearing officer’s determination that plaintiffs’ use of the property was not
legally nonconforming; (6) there was a lawful basis for the imposition of civil penalties;
and (7) the administrative order did not violate California’s separation of powers.
                                     II. DISCUSSION
A. Standard of Review
       Plaintiffs assert the underlying writ petition involved a matter of fundamental
rights and the trial court therefore should have applied the independent judgment test.
Instead the trial court reviewed the hearing officer’s findings for substantial evidence,
which plaintiffs contend was reversible error. For similar reasons, plaintiffs assert we
should review the trial court’s decision de novo.
       The last contention may be quickly answered. Regardless of whether the trial
court was required to apply the independent judgment test, on appeal we apply the
substantial evidence standard and overturn factual findings only if the evidence is
insufficient as a matter of law to sustain the findings. (Barrie v. California Coastal Com.
(1987) 196 Cal.App.3d 8, 14.) Purely legal questions, including whether plaintiffs
received a fair hearing, will be reviewed de novo. (Clark v. City of Hermosa Beach
(1996) 48 Cal.App.4th 1152, 1169 (Clark).)
       We also reject plaintiffs’ contention that the trial court erred in declining to apply
the independent judgment standard. “If an administrative decision substantially affects a


                                              5
fundamental vested right, the trial court must exercise its independent judgment on the
evidence and find an abuse of discretion if the findings are not supported by the weight of
the evidence.” (Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519, 1525
(Goat Hill Tavern).) In such cases, “the courts have held the loss of [the right] is
sufficiently vital to the individual to compel a full and independent review. The
abrogation of the right is too important to the individual to relegate it to exclusive
administrative extinction.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 144.) Under the
independent judgment standard, administrative findings are entitled to a strong
presumption of correctness, and the party challenging those findings bears the burden of
showing they were contrary to the weight of the evidence. (Fukuda v. City of Angels
(1999) 20 Cal.4th 805, 817.) If, however, fundamental vested rights are not implicated,
“the trial court must still review the entire administrative record to determine whether the
findings are supported by substantial evidence and whether the agency committed any
errors of law, but the trial court need not look beyond that whole record of the
administrative proceedings.” (Bixby v. Pierno, at p. 144, fn. omitted.)
       Whether an administrative decision affects fundamental vested rights must be
determined on a case-by-case basis. (Bixby v. Pierno, supra, 4 Cal.3d at p. 144.)
“Although no exact formula exists . . . [citation], courts are less sensitive to the
preservation of purely economic interests. [Citation.] In deciding whether a right is
‘fundamental’ and ‘vested,’ the issue in each case is whether the ‘ “affected right is
deemed to be of sufficient significance to preclude its extinction or abridgement by a
body lacking judicial power.” ’ ” (301 Ocean Ave. Corp. v. Santa Monica Rent Control
Bd. (1991) 228 Cal.App.3d 1548, 1556, italics omitted.) A full and independent judicial
review is warranted “[w]hen an administrative decision affects a right which has been
legitimately acquired . . . and when that right is of a fundamental nature from the
standpoint of its economic aspect or its ‘effect . . . in human terms and the importance . . .
to the individual in the life situation’ . . . .” (Strumsky v. San Diego County Employees
Retirement Assn. (1974) 11 Cal.3d 28, 34.)



                                               6
       The acquisition of a fundamental vested right is grounded on principles of
estoppel. (Stanson v. San Diego Coast Regional Com. (1980) 101 Cal.App.3d 38, 49.)
Thus, a property owner may acquire a fundamental vested right to develop his or her
property “where the conduct of the government amounts to a representation that such
[development] is fully approved and legal, and in reliance on such representation the
owner materially changes position.” (Ibid.) For example, in Goat Hill Tavern, the court
found a fundamental vested property right where a city refused to renew a tavern owner’s
conditional use permit after he invested $1.75 million in refurbishing his property, and
some of the improvements were undertaken at the city’s behest. (Goat Hill Tavern,
supra, 6 Cal.App.4th at p. 1529.) The court reasoned: “Interference with the right to
continue an established business is far more serious than the interference a property
owner experiences when denied a conditional use permit in the first instance. Certainly,
this right is sufficiently personal, vested and important to preclude its extinction by a
nonjudicial body.” (Ibid.)
       The trial court concluded substantial evidence review was sufficient in this case
because plaintiffs provided no evidence showing the specific uses the County sought to
abate were maintained upon the property prior to the implementation of the subject
ordinances, or that those uses were fundamental to plaintiffs’ economic or life situation.
As to the latter point, the court stated the administrative decision would not deny
plaintiffs all rights to maintain a car collection, but merely imposed conditions on the
type of collection and the manner in which it is kept. Plaintiffs now argue the trial court
assumed its conclusion and engaged in circular argument by asserting plaintiffs had cited
no evidence regarding their prior use of the property. Plaintiffs contend independent
judgment review was required because they asserted “they had a long-standing
grandfathered use of a highly personal nature in the form of [a] personal hobby,” and
these assertions were not rebutted in the testimony.
       We find no error. There was substantial evidence in the record to support the trial
court’s conclusion plaintiffs did not have a long-standing grandfathered use of the
property predating the relevant zoning ordinances. The evidence adduced at the


                                              7
administrative hearing indicates plaintiffs currently keep over 200 vehicles on the
property, and at least 25 percent of those vehicles are nonoperational. While Rosemary
testified her husband’s car collecting hobby dated as far back as 1956, there is no
indication he owned anywhere near 200 vehicles during the period prior to the enactment
of the ordinance in 1974, or whether any of those vehicles were nonoperational. Randy’s
testimony at the administrative hearing was also vague on these points. Moreover, the
hearing officer concluded an aerial photograph of the property from 1980 did not show an
extensive collection of motor vehicles on the premises at that time. There is also no
indication plaintiffs attempted to introduce additional evidence concerning the historical
use of the property during the writ proceedings.
       Even if the condition of plaintiffs’ property had not changed since the enactment
of the zoning ordinance, plaintiffs have failed to show they have a fundamental right to
use the property as a storage yard for an extensive number of nonoperational vehicles.
There is no evidence plaintiffs derive significant income from the vehicles on the
property, or that the abatement order affects the property’s economic value. Nor is there
evidence plaintiffs made a significant investment in the nonoperational vehicles, let alone
that they did so in reliance on any action by the County. Further, as the trial court
observed, the abatement order does not preclude plaintiffs from pursuing a car collecting
or racing hobby; it merely limits the manner in which they may do so. To the extent
plaintiffs are arguing they have a fundamental right to keep on their property as many
nonoperational vehicles as they wish in whatever condition they wish, they have failed to
point to any supporting authority.3




       3
         Plaintiffs also argue the independent judgment test must be applied because “the
issue tendered is whether a fair administrative hearing was conducted.” But as plaintiffs’
own authority holds, in such cases, a plaintiff is merely entitled to an independent judicial
determination of whether he or she received a fair administrative hearing. (City of
Fairfield v. Superior Court (1975) 14 Cal.3d 768, 776.) As set forth below, plaintiffs’
claim that they were denied a fair hearing is barred by collateral estoppel.


                                             8
B. Hearing Officer’s Fees
       At trial, plaintiffs argued the entire administrative hearing process was void
because they were ordered to pay the hearing officer’s costs of $900. The trial court
rejected this argument because plaintiffs failed to cite the code provision pursuant to
which the hearing officer assessed costs,4 and even if the provision was provided and was
unconstitutional, there was no basis for voiding the entire hearing. Plaintiffs now argue
the trial court’s decision is inconsistent with California Teachers Assn. v. State of
California (1999) 20 Cal.4th 327 (California Teachers), and the administrative
proceeding is void because the hearing officer had a pecuniary interest in the outcome of
the hearings. We disagree on both counts.
       In California Teachers, an adjudicator at an administrative hearing upheld a public
school district’s decision to dismiss a teacher for misconduct. (California Teachers,
supra, 20 Cal.4th at pp. 331–332.) State law provided the teacher could be charged half
the cost of the hearing, including the cost of the officer. (Id. at p. 341.) The teacher did
not pay the bill, and was then notified his state income tax refunds would be offset
against the debt. (Id. at p. 332.) The teacher petitioned for a writ of mandate to compel
the State Controller not to offset the refund against the debt. (Ibid.) On appeal, our
Supreme Court held the cost-shifting statute was unconstitutional because, “The
legislative purpose of imposing the cost of the adjudicator upon teachers to deter them
from requesting administrative hearings on nonfrivolous grounds is not a legitimate one.”
(California Teachers, at p. 346.) The court also found a due process violation under
Mathews v. Eldridge (1976) 424 U.S. 319, because the state’s interest in “conserving
resources or discouraging hearings that happen to result in an administrative or judicial
decision against a teacher does not outweigh the teacher’s strong interest in presenting his

       4
         The record reflects the hearing officer’s fees were assessed pursuant to Sonoma
County Code section 1-7.3, subdivision (h), which states if a hearing officer finds a
zoning violation exists, a property owner shall be responsible for paying the County’s
administrative abatement costs, including any costs set forth in the notice of violation.
Here, the notice of violation sent to plaintiffs indicated they could be assessed the costs of
the hearing officer.


                                              9
or her side of the case and in invoking the discretion of the adjudicator [or] the public’s
interest in preventing erroneous or arbitrary dismissals or suspensions of teachers in our
public schools.” (California Teachers, at p. 357.)
       Contrary to plaintiffs’ assertion, nothing in California Teachers suggests we must
void the entire abatement hearing based on the imposition of the hearing officers’ costs.
Since the plaintiff in California Teachers did not seek judicial review of the adjudicator’s
decision affirming his dismissal, the court did not have the opportunity to address the
validity of the hearing. (California Teachers, supra, 20 Cal.4th at p. 332.) As plaintiffs
point out, the court in California Teachers was concerned imposition of a hearing
officer’s fees could chill the exercise of the right to demand a hearing. (Id. at p. 338) But
in this case, plaintiffs were undeterred by the possibility of a fee assessment and
demanded a hearing anyway. Thus, even if the imposition of the adjudicator’s fees was
unconstitutional, it did not affect the validity of the abatement hearing or the resulting
abatement order.5
       We also reject plaintiffs’ contention that the underlying proceedings are void
because the hearing officer had a pecuniary interest in their outcome. Plaintiffs fail to
explain the basis for their argument other than to cite to Clark, supra, 48 Cal.App.4th
1152, and Haas v. County of San Bernardino (2002) 27 Cal.4th 1017. Neither case holds
the imposition of a hearing officer’s fees on a losing party renders a hearing officer
impartial. In Clark, the court found the plaintiffs were denied a fair hearing before a city
council because, among other things, the project at issue would have had a direct impact
on the residence of one of the council members. (Id. at pp. 1172–1173.) In Haas, the
court held certain hearing officers had a pecuniary interest requiring disqualification
where a county unilaterally selected and paid them on an ad hoc basis and the officers’
income from future adjudicative work depended entirely on the county’s goodwill. (Id. at
p. 1024.) The court reasoned it was logical to assume the county would advance its own

       5
          We need not determine whether plaintiffs are entitled to recover the $900 fee for
the hearing officer’s costs because they declined to request such relief below and failed to
raise the issue on appeal.


                                             10
self-interest by preferring hearing officers who tended to issue rulings favorable to it. (Id.
at p. 1029.) Here, plaintiffs have failed to point to any evidence or authority indicating
how the County selected the hearing officer for the abatement proceeding. There is also
no indication the hearing officer’s fees or future employment with the County were
contingent on the outcome of the proceedings or who paid her fees.
C. Right to a Fair Hearing
       The trial court rejected plaintiffs’ claim that they were denied a fair administrative
hearing, finding it was barred by the doctrine of issue preclusion. The court reasoned
plaintiffs had raised similar claims against the County in the federal action, and those
claims were dismissed on the merits. Plaintiffs now assert the trial court erred by
conflating federal due process with the right to a fair hearing under section 1094.5. The
argument lacks merit.
       Issue preclusion, also known as collateral estoppel, bars relitigation of issues
argued and decided in prior proceedings. (Lucido v. Superior Court (1990) 51 Cal.3d
335, 341.) The elements of issue preclusion are as follows: “First, the issue sought to be
precluded from relitigation must be identical to that decided in a former proceeding.
Second, this issue must have been actually litigated in the former proceeding. Third, it
must have been necessarily decided in the former proceeding. Fourth, the decision in the
former proceeding must be final and on the merits. Finally, the party against whom
preclusion is sought must be the same as, or in privity with, the party to the former
proceeding.” (Ibid.)
       Each of these elements is satisfied here. In both this action and the federal action,
plaintiffs alleged they were denied a fair hearing because the hearing officer interrupted
their presentation of the case, prejudged the facts, disrupted plaintiffs’ cross-examination
of witnesses and the flow of testimony, abbreviated the time allotted for plaintiffs’ case,
and allowed nontestifying persons to interject. The federal court addressed and rejected
all of these claims on summary judgment, finding they did not amount to a violation of
procedural due process. The court stated: “Nothing in the record indicates [plaintiffs]
were prevented from presenting their case, denied the opportunity to present evidence,


                                             11
put on witnesses, or to cross-examine witnesses for the Defendant. Indeed, if anything,
the hearing transcript demonstrates that the hearing officer allowed extensive questioning
and argument on irrelevant matters at the insistence of Plaintiffs’ counsel. The transcript
of the hearing reveals that the officer displayed patience and neutrality in the face of
hostility and constant disruption from Plaintiffs’ counsel. [Citation.] Moreover, the
record reflects that counsel for Plaintiffs spent a considerable amount of time arguing
with witnesses, counsel and the hearing officer regarding matters already deemed
irrelevant by the officer[,] such as lengthy argument regarding the anonymous complaint
filed against Plaintiffs that began the administrative process. [Citation.] The hearing
officer acted well within her discretion to limit the hearing as a result of Plaintiffs’
counsel’s decision to utilize his time in such a manner rather than address the merits of
the case against his clients.” (Jensen, supra, 2010 WL 2330384, at p. *15.) The trial
court’s decision was affirmed on appeal.
       Despite the federal court’s lengthy discussion of plaintiffs’ complaints about the
manner in which the abatement hearing was conducted, plaintiffs assert their right to a
fair hearing under section 1094.5 was not adjudicated in the federal proceedings. In
ruling otherwise, plaintiffs argue, the trial court “conflated federal due process with the
right guaranteed . . . under [section] 1094.5 to a ‘fair hearing,’ which as a matter of law is
broader than federal due process in the context of [an] administrative hearing.” Plaintiffs
contend Clark, supra, 48 Cal.App.4th 1152, shows the federal court’s disposition of their
procedural due process claims does not preclude the litigation of their right to a fair
hearing under section 1094.5 in this action. We disagree.
       In Clark, the plaintiffs challenged a city council’s decision to deny a permit
application to demolish their duplex and replace it with a two-unit condominium, seeking
a writ of administrative mandate pursuant to section 1094.5, and alleging federal civil
rights violations under title 42 United States Code section 1983. (Clark, supra,
48 Cal.App.4th at p. 1159.) The court held the plaintiffs were deprived of a fair hearing
under state law, reasoning one of the council members had a conflict of interest, the
plaintiffs did not have an opportunity to address certain concerns raised by the city


                                              12
council after the public hearing concluded, and the city exhibited bias in connection with
an unsuccessful effort to impose a construction moratorium. (Id. at pp. 1172–1173.)
Nevertheless, the court found no procedural due process violation because the plaintiffs
did not have a federally protected property interest in the development of their project.
(Id. at pp. 1182–1183.)
       In contrast, in the instant action, the federal court found plaintiffs’ complaint
implicated a “well-established constitutional property right” and reached the merits of
their procedural due process claim.6 (Jensen, supra, 2010 WL 2330384, at pp. *13–*16.)
Thus, questions of fact regarding the conduct of the abatement hearing have already been
resolved adversely to plaintiffs. Plaintiffs may not relitigate these issues now. Even if
the federal court’s decision did not have any preclusive effect here, we would reject
plaintiffs’ fair hearing claims for the same reasons as the federal court. Having reviewed
the transcript of the abatement hearing, we conclude the hearing officer provided
plaintiffs with a full and fair opportunity to litigate their claims, and the hearing officer
exercised a considerable amount of patience, in spite of plaintiffs’ counsel’s
interruptions, redundant objections, and repeated insistence on pursuing irrelevant lines
of inquiry.
D. Separation of Powers
       The hearing officer found the use of the property for nonoperative vehicle storage
and as a junkyard violated the Sonoma County Code and ordered abatement of the
violation within 45 days. Additionally, plaintiffs were ordered to request inspection to

       6
          The federal court’s finding that plaintiffs’ claims implicated a constitutional
property right cognizable under title 42 United States Code section 1983 has no bearing
on our conclusion plaintiffs do not have a fundamental vested right that would entitle
them to independent judgment review. The existence of a property interest cognizable
under section 1983 “ ‘turns on whether, under state and municipal law, the local agency
lacks all discretion to deny issuance of the permit or to withhold its approval.’ ” (Clark,
supra, 48 Cal.App.4th at p. 1180.) In contrast, a fundamental vested right exists where a
right has been legitimately acquired and is fundamental in its economic or personal
effect. (Strumsky v. San Diego County Employees Retirement Assn., supra, 11 Cal.3d at
p. 34.)


                                              13
verify abatement of the violation within this time period. Plaintiffs argue only the
judicial branch can command such relief, and therefore the hearing officer’s order
amounts to a violation of California’s separation of powers.7 Plaintiffs also argue the
order to allow an inspection violates their right against unwarranted search and seizure.
We find both arguments unavailing.8
       “The separation of powers doctrine limits the authority of one of the three
branches of government to arrogate to itself the core functions of another branch.”
(Carmel Valley Fire Protection Dist. v. State of California (2001) 25 Cal.4th 287, 297.)
Its primary purpose “is to prevent the combination in the hands of a single person or
group of the basic or fundamental powers of government. [Citations.] The doctrine has
not been interpreted as requiring the rigid classification of all the incidental activities of
government, with the result that once a technique or method of procedure is associated
with a particular branch of the government, it can never be used thereafter by another.”
(Parker v. Riley (1941) 18 Cal.2d 83, 89–90.) “Time has blurred the purity of division of
governmental functions, . . . particularly with the advent of administrative agencies.”
(Imperial Irrigation Dist. v. State Wat. Resources Control Bd. (1990) 225 Cal.App.3d
548, 565.) “We have had little or no concern for avoiding a mixture of three or more
kinds of power in the same agency; we have had much more concern for avoiding or
       7
         In the same section of their brief, plaintiffs contend the hearing officer
overstepped her authority because the zoning ordinance allows for the storage of operable
vehicles on the property and thus does not prohibit plaintiffs from pursuing their hobbies
of car collecting and racing. It is unclear how this concern implicates separation of
powers, and plaintiffs appear to have abandoned the issue on reply. In any event, the
administrative order does not prevent plaintiffs from pursuing their hobbies on the
property, it merely limits the manner in which they may do so. Plaintiffs also once again
argue their car collecting hobby is a permissible grandfathered use. As discussed above,
substantial evidence suggests otherwise.
       8
          The County asserts we need not reach the merits of plaintiffs’ separation-of-
powers arguments because they were not raised at the administrative hearing. But it is
unclear plaintiffs had an opportunity to challenge the scope of the administrative order as
it was issued after the conclusion of the hearing. Moreover, “we have discretion to
consider a new theory on appeal when it is purely a matter of applying the law to
undisputed facts.” (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316.)


                                              14
minimizing unchecked power.” (McHugh v. Santa Monica Rent Control Bd. (1989)
49 Cal.3d 348, 361–362, italics omitted.)
       We find no separation-of-powers violation here. That an administrative hearing
officer appointed by the County exercised quasi-judicial powers is unremarkable.
“Possibly the most significant structural change in our government since the date of its
founding has occurred in the twentieth century development of a huge administrative
bureaucracy. To deal with the manifold problems of modern society these administrators
have been delegated substantial quasi-legislative and quasi-adjudicative powers.” (Bixby
v. Pierno, supra, 4 Cal.3d at p. 142.) “An administrative agency may constitutionally
hold hearings, determine facts, apply the law to those facts, and order relief . . . so long as
(i) such activities are authorized by statute or legislation and are reasonably necessary to
effectuate the administrative agency’s primary, legitimate regulatory purposes, and
(ii) the ‘essential’ judicial power (i.e., the power to make enforceable, binding judgments)
remains ultimately in the courts, through review of agency determinations.” (McHugh v.
Santa Monica Rent Control Bd., supra, 49 Cal.3d at p. 372, italics omitted.)
       In this case, the hearing officer’s actions were authorized by statute. While
superior courts have exclusive jurisdiction over actions in equity, that exclusive
jurisdiction does not extend to abatement proceedings. (Flahive v. City of Dana Point
(1999) 72 Cal.App.4th 241, 244.) Under state law, municipalities have the authority to
establish procedures for the abatement of nuisances, such as the one at issue here. (See,
e.g., Civ. Code, § 3494 [“A public nuisance may be abated by any public body or officer
authorized thereto by law.”]; Gov. Code, § 25845 [board of supervisors may establish
procedures for the abatement of a nuisance].) In accordance with state law, the Sonoma
County Code expressly grants hearing officers the power to issue findings of fact and
conclusions of law in abatement proceedings, and if a violation is found to exist, an order
that the violation be abated within a certain time. (Sonoma County Code, § 1-7.3,
subd. (g)(1).) We also find the hearing officer’s order was reasonably necessary and
narrowly tailored to effectuate a legitimate regulatory purpose, specifically the abatement
of zoning violations. Additionally, the hearing officer did not assume an essential


                                              15
judicial power, as her decision was subject to judicial review. (§ 1094.5; Sonoma County
Code, § 1-7.5.)
       We also reject plaintiffs’ contention that the abatement order violated plaintiffs’
right against unwarranted search and seizure. It is true “government officials engaged in
the abatement of a public nuisance must have a warrant to enter any private property
where such entry would invade a constitutionally protected privacy interest.” (Gleaves v.
Waters (1985) 175 Cal.App.3d 413, 419.) But “[a] recognized exception to the Fourth
Amendment’s proscription against warrantless searches is a search that is based upon
consent.” (People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1198.) In
this case, the abatement order states plaintiffs must request inspection of the property to
verify abatement of the violation. Nothing in the order suggests the property will be
subject to a warrantless search if plaintiffs fail to request such an inspection.9, 10
                                     III. DISPOSITION
       The judgment is affirmed. The County shall be entitled to recover its costs on
appeal.




       9
         Plaintiffs’ reliance on Vidaurri v. Superior Court (1970) 13 Cal.App.3d 550, is
misplaced. In that criminal matter, the court held evidence of marijuana grown on
defendant’s property should be suppressed because it was discovered by a state
agricultural inspector during a warrantless search of the property. (Id. at pp. 552–553.)
The court did not address the issue of whether an administrative order directing a
property owner to request inspection to verify abatement constitutes a Fourth
Amendment violation.
       10
             As plaintiffs do not argue their consent has been coerced, we decline to address
the issue.


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                                 _________________________
                                 Margulies, J.


We concur:


_________________________
Humes, P.J.


_________________________
Banke, J.




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