Filed 6/28/16 Pastore v. County of Santa Cruz CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


VINCENT PASTORE,                                                     H042521
                                                                    (Santa Cruz County
         Plaintiff and Appellant,                                    Super. Ct. No. CV180558)

             v.

COUNTY OF SANTA CRUZ,

         Defendant and Respondent.



         In this second of two related appeals, plaintiff Vincent Pastore challenges an order
striking a purported “appeal” to the superior court from an administrative order—in this
case, an order imposing upon him certain costs incurred by the County of Santa Cruz
(County) in abating a nuisance on his property. He contends that he was entitled bring
such an appeal pursuant to Government Code section 53069.4 (§ 53069.4), which,
properly construed, authorizes direct appeal from certain orders imposing “fines and
penalties” pursuant to local ordinance. Since the order from which he purported to
appeal was intended to compensate the county and not to punish or deter, it did not
impose a fine or penalty and the statute does not apply. Accordingly, plaintiff’s “appeal”
was properly stricken.
                                       BACKGROUND
       As described in our decision in the related appeal (Pastore v. County of Santa
Cruz, No. H042688, filed herewith), County issued an order in April 2014 abating a
nuisance on property of which plaintiff is the record owner. The nuisance consisted of
grading and land-clearing, without a permit, for purposes of cultivating medical cannabis.
On July 24, after an administrative hearing, a hearing officer affirmed the order and
directed that plaintiff abate the nuisance. The order provided that if plaintiff failed to
abate the nuisance in a timely manner, the planning director was authorized “to cause the
abatement of the public nuisance . . . and . . . report on the abatement costs pursuant to
Santa Cruz County Code section 1.14.050.” The last-cited section authorizes imposition
of a special assessment on property to recover costs incurred by County in abating a
nuisance after the landowner has failed to do so. (Santa Cruz County Code, tit. 1
§ 1.14.050.)
       On November 26, 2014, a county hearing officer issued a decision and order
finding abatement costs of $18,962.45 and making them a special assessment lien against
plaintiff’s property, to be recorded within 21 days if not paid sooner.1
       On December 3, 2014, acting in propria persona, plaintiff filed a “Notice of
Appeal of Hearing Officer Decision and Order” in the superior court challenging the
order of November 26. The notice recited that the appeal was taken “pursuant to
California Code [sic] Section 53069.4,” and asked the clerk to “set this cause for hearing
before the above entitled Court, where the same shall be heard de novo in accordance
with California Code [sic] Section 53069.4.”



       1
         Plaintiff asked us in his opening brief to take judicial notice that such a lien had
by then been recorded. He provided no evidentiary basis for this assertion. (See Evid.
Code, § 453, subd. (b).) Accordingly, the request is denied.

                                              2
       County moved to strike the notice of appeal on the grounds that “the Appeal is not
the proper means to challenge the Administrative hearing Officer Decision and Order and
that the challenge is inadequate and untimely.” County argued that the only available
means to challenge the administrative order was by petition for writ of administrative
mandamus, which had to be filed “within 90 days of the order being that is being
challenged.” The attempted “appeal” pursuant to section 53069.4 was unsustainable,
County contended, because that section relates only to administrative fines and penalties
imposed by local agencies. County argued that the deadline to bring a proper challenge
had expired, that the “appeal” could not be deemed a petition for administrative
mandamus because it lacked several of the requirements for such a petition—notably
allegations of fact sufficient to justify relief and a verification of those allegations under
penalty of perjury—and that any amendment sufficient to cure these defects would be
such a departure from the original allegations that it would not relate back to the original
filing date. County requested that the court dismiss the purported appeal.
       Plaintiff opposed the motion to strike chiefly on the ground that a direct appeal to
superior court, with de novo review, was an available remedy under the authority of
Martin v. Riverside County Department of Code Enforcement (2008) 166 Cal.App.4th
1406, 1412, which according to plaintiff had interpreted section 53069.4 to permit such a
direct appeal from any “ ‘administrative decision like a ruling on a code violation.’ ” He
also contended that the order imposed a “penalty” for purposes of section 53069.4. In the
alternative, plaintiff requested that his appeal “be treated as a defective petition for
administrative mandamus that was timely filed and permit him to amend such petition to
conform to a style that would not invite an appropriate motion to strike.”
       The motion to strike was heard on March 26, 2015. At the conclusion of the
hearing the court ruled, “The motion to strike without leave to amend is granted.” On



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April 22, it issued a written order stating, “The motion to strike . . . is granted in its
entirety as petitioner’s entire appeal without leave to amend.” (Capitalization modified.)
       On April 28, 2015, County gave notice of entry of the order striking the “appeal.”
Plaintiff filed this appeal 59 days later.
                                         DISCUSSION
I. Appealable Order
       In the companion appeal plaintiff raised the question whether the order there under
review was appealable. At first blush he seems to raise the same issue here. However he
goes on to concede that the order here is appealable. This concession is puzzling, since
no material distinction between the two orders readily appears. Both appear to effect a
complete and final disposition of the matter before the trial court. In any event we
conclude here, as we did there, that the order was in substance a final judgment, and thus
appealable.2
II. Superior Court’s Jurisdiction to Rule
       Plaintiff contends that the superior court was without jurisdiction to dispose of
plaintiff’s “appeal” as long as his earlier “appeal” from the July 24 order remained
pending.3 He offers no authority for this contention, but relies on an argument to the
effect that this action was “dependent” upon the earlier, “predicate” action, making it
“important not to permit a final judgment in the judicial proceeding that is dependent on

       2
         As in the companion appeal, we note that the order striking the pleading may not
have been equivalent to an actual dismissal of the action, which is generally the
identifying feature of a de facto judgment. As explained there, however, we find it
expedient to deem the order under review to incorporate a judgment of dismissal. (See
Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396.)
       3
         Plaintiff’s “appeal” from the July 24 order was filed in the superior court on
August 21, 2014. His “appeal” from the order at issue here was filed on December 3,
2014. It is not immediately obvious how it happened that the later-filed “appeal” was
resolved before the earlier-filed one.

                                                4
the outcome of the other proceeding until after the predicate proceeding has achieved a
judgment compatible with the dependent proceeding.”
       An argument unsupported by authority is not necessarily doomed to fail, but to
succeed it must be accompanied by a compelling demonstration that the court should
make new law. Plaintiff offers nothing approaching a compelling demonstration. We
may well acknowldge that where the disposition of one action may affect or control the
outcome of another, efficiency and fairness will often be served by resolving the first
action before resolving the second. Efficiency and fairness are indeed important goals.
But service to important goals is hardly enough to justify making a rule “jurisdictional.”
The law provides many devices and mechanisms by which to avoid the potential
inefficiency of litigating related cases separately. These include the plea of another
action pending, the liberal rules of joinder, and the power of the court to consolidate or
coordinate related cases. Here plaintiff could have moved to consolidate his two
“appeals,” or he could simply have asked the court to stay its ruling on the December
order until his “appeal” from the July 24 order was concluded. We can conceive of no
reason to hold that the trial court was obliged to take such actions on its own motion or
that its failure to do so deprived it of jurisdiction.
III. Viability of Appeal from Order Imposing Abatement Costs
       Plaintiff contends, as he did below and in the companion appeal, that the
challenged administrative order—here, the order imposing abatement costs on him and
affixing a commensurate lien to the subject property—was subject to de novo review in
the superior court by direct appeal pursuant to section 53069.4. We rejected this
argument in the related appeal, which concerned an administrative order affirming the
existence of a nuisance and anticipating the possible imposition of abatement costs if
plaintiff failed to abate the nuisance himself. Here the order directly imposed those costs.



                                                5
The question is whether this distinction leads to a different result here than we reached in
the related appeal. We are confident that it does not.4
       Section 53069.4 empowers local agencies to adopt ordinances imposing “an
administrative fine or penalt[y]” for “violation of any ordinance.” It provides that a
person subject to an order imposing such a fine or penalty may “fil[e] an appeal to be
heard by the superior court, where the same shall be heard de novo, except that the
contents of the local agency's file in the case shall be received in evidence.” (§ 53069.4,
subd. (b)(1) (§ 53069.4(b)(1).) This of course creates an exception to the general rule
that a petition for administrative mandamus, pursuant to Code of Civil Procedure section
1094.5, is “the exclusive remedy for judicial review of the quasi-adjudicatory
administrative action of local level agencies.” (Saad v. City of Berkeley (1994) 24
Cal.App.4th 1206, 1211.)
       Plaintiff contends that the statute is not limited to orders imposing fines or
penalties but extends to any order made under an ordinance that includes provisions for
the imposition of a fine or penalty. For this proposition he relies on language in the most
pertinent clause of the statute. This clause, which is poorly drawn, states as follows:
“Notwithstanding the provisions of Section 1094.5 or 1094.6 of the Code of Civil
Procedure, within 20 days after service of the final administrative order or decision of the
local agency is made pursuant to an ordinance enacted in accordance with this section
regarding the imposition, enforcement or collection of the administrative fines or
penalties, a person contesting that final administrative order or decision may seek review


       4
          Plaintiff again cites Martin v. Riverside County Department of Code
Enforcement, supra, 166 Cal.App.4th 1406, for the proposition that the statute extends
beyond orders imposing fines and fees. At discussed in the companion appeal, that case
did not involve, and the court did not purport to address, the scope of the statute. Cases
are not authority for points neither considered nor decided in them. (People v. Knoller
(2007) 41 Cal.4th 139, 154-155.)

                                              6
by filing an appeal to be heard by the superior court, where the same shall be heard de
novo, except that the contents of the local agency's file in the case shall be received in
evidence. A proceeding under this subdivision is a limited civil case. A copy of the
document or instrument of the local agency providing notice of the violation and
imposition of the administrative fine or penalty shall be admitted into evidence as prima
facie evidence of the facts stated therein. A copy of the notice of appeal shall be served in
person or by first-class mail upon the local agency by the contestant.” (§ 53069.4(b)(1).)
       Much could be said about this nightmare of mangled syntax and cascading
modifiers, but we will cut to the chase by pointing out the one portion that is flatly
incompatible with plaintiff’s reading: the requirement that the appeal include “[a] copy
of the document or instrument providing notice of the violation and imposition of the
administrative fine or penalty.” (Italics added.) This requirement obviously cannot be
satisfied if no fine or penalty has been imposed. It follows that, whatever the ambiguities
and perplexities otherwise flowing from the statute, it was intended to extend only to
orders imposing a fine or penalty.
       The charge imposed here is not a “fine or penalty,” because its purpose was
wholly compensatory rather than punitive. A “fine” is “[a] pecuniary criminal
punishment or civil penalty payable to the public treasury.” (Black’s Law Dict. (10th ed.
2014) p. 750, col. 1; see Merriam-Webster’s Collegiate Dict. (10th ed. 1999) p. 436 [“a
sum imposed as punishment for an offense”]; Sanders v. Pacific Gas & Elec. Co. (1975)
53 Cal.App.3d 661, 676, quoting People v. Sutter Street Ry. Co. (1900) 129 Cal. 545, 548
[“The term ‘fine’ refers to a pecuniary punishment ‘imposed as a punishment only.’ ”];
id. at p. 677, quoting In re Howard’s Estate (1946) Ohio Prob., 68 N.E.2d 820, 823 [33
Ohio Op. 510, 68 N.E.2d 820, 823] [“ ‘A fine is a financial punishment for committing a
wrong, and which fine is for the benefit of the public. . . .’ ”]; Petersen v. Civil Service
Board of City of Oakland (1924) 67 Cal.App. 70, 75 [“the word ‘fine’ as used in said

                                               7
charter provision must be interpreted according to its ordinary meaning, which signifies a
pecuniary punishment for an offense committed”].)
       “[P]enalty” is a broader term, signifying “[p]unishment imposed on a wrongdoer,
usu[ally] in the form of imprisonment or fine; esp[ecially], a sum of money exacted as
punishment for either a wrong to the state or a civil wrong (as distinguished from
compensation for the injured party’s loss).” (Black’s Law Dict., supra, at p. 1313, col. 2,
italics added; see ibid. [defining “civil penalty” as “[a] fine assessed for a violation of a
statute or regulation”].) Both fines and monetary penalties are distinguished from, and
imposed without regard to, any compensatory remedy that may otherwise be available.
(See ibid.; Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1104,
quoting County of Los Angeles v. Ballerino (1893) 99 Cal. 593, 596 (italics added) [“A
‘penalty’ . . . is that ‘which an individual is allowed to recover against a wrong-doer, as a
satisfaction for the wrong or injury suffered, and without reference to the actual damage
sustained. . . .’ ”]; People ex rel. Dept. of Conservation v. Triplett (1996) 48 Cal.App.4th
233, 252, quoting Miller v. Municipal Court (1943) 22 Cal.2d 818, 837 [“ ‘a “penalty”
includes any law compelling a defendant to pay a plaintiff other than what is necessary to
compensate him for a legal damage done him by the former’ ”].)5
       Here the charge imposed on plaintiff was entirely compensatory in character and
purpose. The order imposing it itemized the costs incurred by County in abating the
nuisance it had found on plaintiff’s property. No part of the assessment was divorced
from the costs actually incurred, as found by the hearing officer. Accordingly it was not
a “fine or penalty,” and fell squarely outside section 53069.4.


       5
          That the cited cases refer to controversies between private persons does not
detract from their applicability to a “penalty” imposed by a public agency. The paucity
of “penalty” cases in that context probably reflects the fact that the more common usage
there would be “fine.”

                                               8
      We conclude, as in the companion case, that the challenged administrative order
could only be reviewed by petition for administrative mandamus and that plaintiff’s
purported appeal was properly dismissed.
                                     DISPOSITION
      The order granting the motion to strike without leave to amend is affirmed.




                                           9
                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           MÁRQUEZ, J.




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