Filed 9/9/14 Towers v. Shasta County CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----




ROGER TOWERS et al.,                                                                         C070825

                   Plaintiffs and Appellants,                                      (Super. Ct. No. 171355)

         v.

SHASTA COUNTY et al.,

                   Defendants and Respondents.




         This federal civil rights action, brought pursuant to 42 U.S.C. section 1983
(Section 1983), against defendants the County of Shasta (County), the Shasta County
District Attorney (District Attorney), and Russ Mull, the Director of the Shasta County
Resources Management Department (Mull), involves the County’s efforts to abate public
nuisances and code violations on plaintiffs Roger and Catherine Towers’s (Towers or
plaintiffs) land and that of their neighbors. The trial court sustained a demurrer without



                                                             1
leave to amend to plaintiffs’ first amended complaint, finding the District Attorney
immune from liability under Section 1983, and that plaintiffs failed to state equal
protection and due process claims against the County and Mull. We agree with the trial
court and affirm the judgment.

                                 FACTS AND PROCEEDINGS

       Given the posture of this proceeding, we accept the complaint’s well-pleaded
factual allegations as true. (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 495-
496.) Plaintiffs’ first amended complaint alleged as follows:

       A.     The Property

       Plaintiffs purchased the subject property, located on Peter Pan Gulch Road in
Shasta County, on July 25, 2007. The property consists of five parcels covering
approximately 150 acres. Approximately one and one-half acres are located within the
City of Anderson. The remaining 148 acres are located within the County and are at
issue here.

       B.     The Former Owner’s Code Violations

       On April 30, 2007, nearly three months before plaintiffs purchased the property,
the County Resource Management Department (RMD) sent an abatement letter to
plaintiffs’ predecessor in interest regarding unauthorized Off-Highway Vehicle (OHV)
use on the property, which the County characterized as a grading violation under the
Shasta County Code. Although the April 2007 letter informed the prior owner that a
notice of noncompliance would be recorded against the property within 30 days, the
County never recorded the notice.
       In another abatement letter, dated July 23, 2007--two days before plaintiffs bought
the property--the County notified the prior owner that junk and debris located on the




                                             2
property constituted a public nuisance, and that a notice of noncompliance would be
recorded against the property. The County, however, did not record any such notice.

       C.     Plaintiffs’ Actions to Comply with the Prior Abatement Notices

       After purchasing the property, plaintiffs’ spent approximately $12,000 fencing the
property and removing the accumulated junk. By August 2007, the County considered
the abatement notices resolved and closed the code enforcement file on plaintiffs’
property without taking any further action. Plaintiffs sent a letter to neighboring
properties and various County officials detailing the fencing they had installed to stop
illegal off-highway vehicle use on the property.

       D.     Plaintiffs’ 2007 Complaints Against their Neighbors and the County’s
       Enforcement Efforts

       After plaintiffs fixed the zoning violations on their property, they began
complaining to the County that several of their neighbors’ properties contained junk and
debris, and illegal buildings or residences. Plaintiffs submitted complaints to the County
regarding four of their neighbors: Riggins, Chavez, McBroom, and Fay. Plaintiffs
believe the County provided the neighbors with information linking plaintiffs to the
complaints, which caused plaintiffs to be subjected to threats and harassment, particularly
from the McBrooms.
       The County’s code enforcement efforts against Chavez were ultimately successful
because Chavez removed the junk from his property. Unlike the plaintiffs and Chavez,
however, the other three property owners did not remove the junk from their properties.
       The County deemed the junk on the Fay property a public nuisance and recorded a
notice of noncompliance against the property on October 27, 2007. The County recorded
a similar notice of noncompliance against the Riggins property on October 15, 2009. The
County’s standard notice of noncompliance includes the following language: “No permit
or other entitlement for the use of occupancy of this property or any other structure on it,


                                              3
will be issued by Shasta County unless the violation described above is first
corrected . . . .”
        In September 2010, plaintiffs wrote to defendant Mull to complain that the junk
and public nuisances on the Fay, Riggins, and McBroom properties had not yet been
abated. Plaintiffs copied the letter to defendant Shasta County District Attorney and to a
County supervisor. Mull responded in writing that he had received plaintiffs’ letter and
had reviewed related documents.
        By the time plaintiffs filed their initial complaint on February 2, 2011, the County
had not recorded a notice of noncompliance against the McBroom property even though
junk and debris remained on site. And, when plaintiffs’ filed the first amended complaint
on June 13, 2011, junk still remained on the Fay and Riggins properties as well.
        Plaintiffs allege County enforcement personnel and the District Attorney had a
mandatory duty under Penal Code section 373a and Shasta County Code section
1.12.020, subdivision (A), to abate the junk nuisances on their neighbors’ properties.

        E.      Plaintiffs’ 2008 Application for a Certificate of Compliance

        In April 2008, plaintiffs applied to the County for a certificate of compliance to
recognize six parcels on the property pursuant to the Subdivision Map Act. (Gov. Code,
§ 66499.35.) The County has not processed their request.

        F.      Plaintiffs’ 2009 Grading Violation

        At the beginning of June 2009, plaintiffs graded a portion of their property to
realign a four-wheel drive access road for agricultural purposes, including managing
livestock. On June 16, 2009, the County sent plaintiffs an abatement letter informing
them that their recent grading activities violated Shasta County Code section 12.12.040.
Prior to receiving the June 2009 abatement letter, plaintiffs were not afforded any notice
to discuss the matter with the County nor were they given a hearing. Plaintiffs dispute
that their grading activities violated or were subject to the Shasta County Code.


                                              4
       The June 2009 abatement letter included the following: “Please also note that a
hold will be placed on the issuance of any further permits or sited inspections until the
grading violation is cleared.” The letter also stated that, “additional fees, the refusal of
this office to issue development permits on this parcel for up to two years, or referral to
the Shasta County District Attorney’s office” could also result if the grading violation
was not remedied. According to plaintiffs, the County refused to process their April 2008
request for a certificate of compliance because of the purported grading violation.
       Plaintiffs characterize the June 2009 abatement letter as “flagging” the property.
Plaintiffs claim the County routinely “flags” properties as a means of coercing property
owners to comply with the Shasta County Code, which plaintiffs contend violates the
Permit Streamlining Act--specifically Government Code sections 65920 and 65921.

       G.     Trial Court Proceedings

       On February 2, 2011, plaintiffs filed a petition and complaint against the County
seeking to recover for due process and equal protection violations under Section 1983
and for inverse condemnation. The trial court sustained the County’s demurrer to the
complaint with leave to amend.
       Four months later, on June 13, 2011, plaintiffs filed their first amended petition
and complaint against the County, Mull, and the District Attorney. The first amended
complaint asserted five causes of action, two of which contained multiple counts.
       Count 1 of the first cause of action alleged defendants violated Section 1983 and
the equal protection clause by failing to enforce the Shasta County Code against their
neighbors and to abate the nuisances on their neighbors’ properties under Penal Code
section 373a. Count 2 of the first cause of action alleged defendants violated Section
1983 and their equal protection rights by sending them the June 2009 abatement letter
regarding the grading violation on their property.




                                               5
       Plaintiffs’ second cause of action for violating Section 1983 and the due process
clause contained three counts: (1) that defendants improperly flagged plaintiffs’ property
by sending them the June 2009 grading violation abatement letter; (2) that in November
2010 defendants improperly recorded a notice of noncompliance against plaintiffs’
property based on the grading violation; and (3) that defendants failed to enforce the
Shasta County Code and Penal Code section 373a against their neighbors to abate the
public nuisances on their properties.
       The third, fourth, and fifth causes of action sought writs of mandate related to the
flagging of plaintiffs’ property, the certificate of compliance to recognize six parcels on
plaintiffs’ land, and to abate the public nuisances on the property of plaintiffs’ neighbors,
respectively.
       All defendants demurred to the first cause of action (equal protection), counts 1
and 2, and to the second cause of action (due process), counts 1 and 3. The trial court
sustained demurrers without leave to amend as to count 1 of the first cause of action and
counts 1 and 3 of the second cause of action; the trial court granted leave to amend as to
count 2 of the first cause of action. Plaintiffs declined to further amend their complaint
and voluntarily dismissed count 2 of both the first and second causes of action as well as
the third, fourth, and fifth causes of action.
       On March 19, 2012, the trial court entered an order of final dismissal fully
disposing of all causes of action in the first amended complaint. Plaintiffs timely
appealed, challenging the court’s order sustaining the demurrer as to count 1 of the first
cause of action and counts 1 and 3 of the second cause of action.




                                                 6
                                         DISCUSSION

                                               I

                                     Standard of Review

       “On appeal from a dismissal after an order sustaining a demurrer, we review the
order de novo, exercising our independent judgment about whether the complaint states a
cause of action as a matter of law.” (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494,
1501.) “We give the complaint a reasonable interpretation, reading it as a whole and
viewing its parts in context.” (Ibid.) We deem to be true all material facts properly
pleaded, and we “also accept as true those facts that may be implied or inferred from
those expressly alleged.” (Ibid.) If no liability exists as a matter of law, we must affirm
the judgment sustaining the demurrer. (Ibid.)

                                              II

                                   Section 1983 Immunity

       In sustaining the demurrer, the trial court found, among other things, that the
District Attorney was immune from liability under Section 1983 because he acts on
behalf of the state rather than the County when investigating and prosecuting crimes such
as public nuisances. While not entirely discernible from the opening brief, plaintiffs
concede in their reply that the District Attorney indeed constitutes a state actor for
purposes of Section 1983 and that the County is not liable for the District Attorney’s
prosecutorial decision not to institute judicial proceedings under Penal Code section 373a
against their neighbors to abate the junk nuisances on their properties. We note that
Penal Code section 373a provides in relevant part, “Every person who maintains, permits,
or allows a public nuisance to exist upon his or her property or premises . . . is guilty of a
misdemeanor . . . and it is hereby made the duty of the district attorney . . . to prosecute




                                              7
all persons guilty of violating this section by continuous prosecutions until the nuisance is
abated and removed.”
       “In California, all criminal prosecutions are conducted in the name of the People
of the State of California and by their authority.” (People v. Eubanks (1996) 14 Cal.4th
580, 588 (Eubanks).) “ ‘[T]he prosecution of criminal offenses on behalf of the People is
the sole responsibility of the public prosecutor . . . [who] ordinarily has sole discretion to
determine whom to charge, what charges to file and pursue, and what punishment to
seek.’ ” (Ibid.) “The district attorney of each county is the public prosecutor, vested with
the power to conduct on behalf of the People all prosecutions for public offenses within
the county.” (Id. at p. 589.) “No private citizen, however personally aggrieved, may
institute criminal proceedings independently [citation], and the prosecutor’s own
discretion is not subject to judicial control at the behest of persons other than the
accused.” (Dix v. Superior Court (1991) 53 Cal.3d 442, 451 [crime victim “has no
personal ‘right’ or ‘interest’ which would permit his intervention in the decision to recall
[a defendant’s] sentence”] (Dix).)
       As a state actor exercising prosecutorial discretion when determining which, if
any, criminal charges to file against individuals such as plaintiffs’ neighbors, the District
Attorney is immune from liability under Section 1983 by virtue of the Eleventh
Amendment and the doctrine of sovereign immunity. (Venegas v. County of Los Angeles
(2004) 32 Cal.4th 820, 829); Pitts v. County of Kern (1998) 17 Cal.4th 340, 359-360
[county district attorney acts on behalf of state in investigating and prosecuting crimes
and therefore enjoys Eleventh Amendment immunity from Section 1983 liability]; Imbler
v. Pachtman (1976) 424 U.S. 409, 430-431 [47 L.Ed.2d 128, 143-144] [prosecutors enjoy
absolute immunity from Section 1983 suits for their activities in initiating and presenting
the state’s case, as well as for conduct “intimately associated with the judicial phase of
the criminal process”].) The trial court, therefore, properly sustained the demurrer as to



                                              8
defendant Shasta County District Attorney. We turn now to the merits of plaintiffs’ civil
rights claims against the County and Mull.

                                              III

                 Code Enforcement Efforts Resulting in Different Outcomes

       A.     Equal Protection

       Plaintiffs’ first cause of action, count 1, alleges a theory not often seen--that the
County and Mull violated Section 1983 and their constitutional rights to equal protection
by failing to enforce the Shasta County Code against their neighbors to secure the same
level of nuisance abatement as the County achieved from plaintiffs. The crux of
plaintiffs’ complaint is not that the County improperly issued the 2007 notices of
abatement regarding their property, but that plaintiffs reacted differently than their
neighbors to such abatement notices; that is, whereas plaintiffs complied with the notice
sent to them by removing the junk from their property, the neighbors (at least some of
them) did not.
       It is this difference in outcome upon which plaintiffs’ equal protection claim rests.
According to plaintiffs, they have a right to have the County Code enforced against their
neighbors to achieve an identical outcome, otherwise plaintiffs have been denied equal
protection of the law. In other words, plaintiffs contend that, when only some people
comply with the law and others do not, a dual system that violates equal protection is
created: one for law abiding citizens and a second for “scofflaws.” We disagree.
       “The equal protection clause of [the] Fourteenth Amendment to the United States
Constitution declares: ‘No state shall . . . deny to any person within its jurisdiction the
equal protection of the laws.’ ” (People v. Jeha (2010) 187 Cal.App.4th 1063, 1073.) It
is well settled, however, that “an equal protection violation does not arise whenever
officials ‘prosecute one and not [another] for the same act.’ ” (Murgia v. Municipal
Court (1975) 15 Cal.3d 286, 297 (Murgia).) “[T]he equal protection guarantee simply


                                              9
prohibits prosecuting officials from purposefully and intentionally singling out
individuals for disparate treatment on an invidiously discriminatory basis.” (Ibid.) Thus,
“ ‘[t]he unlawful administration by state officers of a state statute fair on its face,
resulting in its unequal application to those who are entitled to be treated alike, is not a
denial of equal protection unless there is shown to be present in it an element of
intentional or purposeful discrimination.’ ” (Ibid., italics omitted.)
       “In Oyler v. Boles [(1962) 368 U.S. 448 [7 L.Ed.2d 446]], a defendant who had
been convicted and sentenced under a West Virginia habitual criminal statute sought a
writ of habeas corpus on the ground that the habitual criminal statute had been
discriminatorily enforced against him in violation of the equal protection clause. The
defendant rested his contention, however, simply on allegations that the statute under
which he had been sentenced had not been applied to a great number of individuals who
fit within its terms; he did not allege that he had been intentionally singled out by the
prosecuting authorities on an invidiously discriminatory basis.
       “In rejecting the defendant’s contention that his allegations demonstrated a denial
of equal protection, the Oyler court stated: ‘[The] conscious exercise of some selectivity
in enforcement is not in itself a federal constitutional violation. Even though the statistics
in this case might imply a policy of selective enforcement, it was not stated that the
selection was deliberately based upon an unjustifiable standard such as race, religion, or
other arbitrary classification. Therefore, grounds supporting a finding of a denial of
equal protection were not alleged.’ (368 U.S. at p. 456 [7 L.Ed.2d at p. 453].)” (Murgia,
supra, 15 Cal.3d at p. 299.)
       Here, the first amended complaint contains no allegations that the County or Mull
intentionally or purposefully discriminated against plaintiffs by issuing the notices of
abatement for their property. Nor could plaintiffs allege such conduct since the County
issued the notices to the former owner before plaintiffs ever purchased the property.



                                               10
       The complaint instead alleges that the County sent their predecessor in interest two
abatement letters regarding illegal OHV use and junk on the property, both stating that
the County intended to record a notice of noncompliance against the property if the code
violations were not abated. Shortly after plaintiffs bought the property, they fenced the
land and removed the junk. The County considered the code violations sufficiently
resolved and closed the code enforcement files without taking any further action. The
County never recorded a notice of noncompliance for either the OHV use or the junk.
       The complaint further alleges that after receiving plaintiffs’ complaints about four
of their neighbors regarding a similar junk issue, the County undertook various steps to
enforce the County Code against the neighbors. As a result of the County’s enforcement
efforts, Chavez cleaned up his property. When Riggins and Fay failed to remove the junk
from their respective properties, the County recorded notices of noncompliance--
something the County did not do to plaintiffs. The County did not record a notice of
noncompliance against the McBroom property even though junk remained onsite.
       These allegations establish nothing more than lax enforcement in abating the
neighbors’ junkyard nuisances. An alleged “ ‘unequal’ treatment which may result from
simple laxity of enforcement or the nonarbitrary selective enforcement of a statute has
never been considered a denial of equal protection.” (Murgia, supra, 15 Cal.3d at
p. 296.) Indeed, “courts have uniformly recognized that administrative officials enjoy
broad discretion in determining the specific circumstances under which established
punitive sanctions should be invoked.” (Ibid.)
       The facts as alleged show the County engaged in varying degrees of enforcement
against the five property owners referenced in the complaint. Two property owners
complied with the abatement letters, two had notices of noncompliance recorded against
their properties when they did not comply, and one did not receive a notice of
noncompliance notwithstanding the junk present on his property. Such allegations, even
if assumed to be true, are insufficient to show the type of intentional or purposeful

                                             11
discrimination required to establish an equal protection violation. (Murgia, supra,
15 Cal.3d 290 [United Farm Workers Union defendants, who were charged with several
misdemeanors, were entitled to discovery on their defense that they were prosecuted
solely because they were members of that particular union].)
       Plaintiffs’ reliance on Baluyut v. Superior Court (1996) 12 Cal.4th 826 (Baluyut),
is misplaced as that case is not to the contrary. Baluyut makes clear that a plaintiff must
allege more than mere lax enforcement of a statute or administrative provision to state a
valid equal protection claim. (Id. at p. 832.) Like Murgia, Baluyut emphasizes that equal
protection is denied only where persons are singled out for a prosecution that is
deliberately based on an unjustifiable standard such as race, religion or some other
arbitrary classification. (Ibid.) In other words, the unequal treatment must be the product
of intentional or purposeful discrimination. (Ibid.) Plaintiffs make no such allegations
regarding the 2007 abatement notices with which they complied.
       Baluyut, moreover, neither hinted nor held that an individual’s equal protection
rights are violated whenever a governmental agency or municipality, through code
enforcement efforts, does not achieve the same result against all known violators.
Extending the equal protection clause in such a manner essentially strips the prosecuting
attorney of any and all discretion to determine “whom to charge, what charges to file and
pursue, and what punishment to seek.” (Eubanks, supra, 14 Cal.4th at p. 588.) Carrying
plaintiffs’ argument to its logical conclusion means the prosecuting attorney would have
no discretion at all when determining how to initiate and resolve cases. Under plaintiffs’
theory, all cases would have to be resolved identically in order to avoid violating the
equal protection rights of some violators. Put differently, the prosecuting attorney could
not bring a criminal complaint against anyone, unless he brought a criminal complaint
which achieved the same result against everyone violating the law in the same manner.
That is not the law.



                                             12
       Furthermore, nothing in either Penal Code section 373a or Shasta County Code
sections 1.12.020 and 1.12.030 alter that conclusion. While it is true these provisions
contain some mandatory sounding language, they do not create an obligation for the
County to abate public nuisances on adjoining landowners’ properties equally.
       As set forth above, Penal Code section 373a provides in relevant part, “[e]very
person who maintains, permits, or allows a public nuisance to exist upon his or her
property or premises . . . is guilty of a misdemeanor . . . and it is hereby made the duty of
the district attorney . . . to prosecute all persons guilty of violating this section by
continuous prosecutions until the nuisance is abated and removed.” By its plain
language, Penal Code section 373a does not empower the County to file charges against
anyone to abate nuisances that may exist on their properties. Instead, the statute simply
identifies the district attorney as the party who may abate public nuisances under the
Penal Code.
       Plaintiffs, however, concede that the County is not liable for the District
Attorney’s discretionary decision to not prosecute plaintiffs’ neighbors under Penal Code
section 373a. And, as previously noted, in exercising his prosecutorial discretion, the
District Attorney is immune from Section 1983 liability. (Pitts, supra, 17 Cal.4th at
p. 359-360; Dix, supra, 53 Cal.3d at p. 451.) Thus, Penal Code section 373a does not
give rise to a mandatory duty on the County’s part to abate any purported public
nuisances on the neighbors’ properties.
       The same is true for Shasta County Code sections 1.12.020 and 1.12.030. Shasta
County Code section 1.12.020 states, “[e]very person designated as an enforcing officer
for any provision of this code shall, as of the effective date of the designation, commence
enforcement of those matters entrusted to the officer’s administration.” Shasta County
Code section 1.12.030 provides, “[e]very enforcing officer may use administrative
processes such as notices of noncompliance, warning letters, stop orders, or cease and
desist orders in lieu of or prior to enforcing any provision of this code if the officer

                                               13
determines that the process may result in compliance with this code at less expense to the
county.”
       Plaintiffs concede that an enforcing officer under Shasta County Code section
1.12.030 has discretion to choose from among several enforcement alternatives when
handling a code violation. Plaintiffs readily admit that “the manner of enforcement”
under section 1.12.030 “includes optional administrative procedures to effect
compliance.”
       To avoid the obvious import of this language, however, plaintiffs argue that
continued reliance on such optional administrative procedures is irrational where
violators have not complied for a certain period of time. In plaintiffs’ view, at some point
the enforcing officer ceases to enjoy enforcement discretion and the obligation to abate a
public nuisance becomes mandatory. We refuse to read such a requirement into the
ordinance where no such requirement expressly exists. (Creason v. Dept. of Health
Services (1998) 18 Cal.4th 623, 631 [“Whether a particular statute is intended to impose a
mandatory duty, rather than a mere obligation to perform a discretionary function, is a
question of statutory interpretation for the courts”].)
       Given the allegations in the complaint, plaintiffs failed to state a cause of action
for violation of the equal protection clause. Neither the County nor Mull had a
mandatory duty to achieve the same nuisance abatement result against the neighbors as
the County achieved voluntarily from plaintiffs. The trial court, therefore, properly
sustained the demurrer without leave to amend.

       B.      Substantive Due Process

       Count three of plaintiffs’ second cause of action alleges the same conduct
described above--the County’s varying degrees of success in abating nuisances on
plaintiffs’ property and on their neighbors’ properties--violated their rights to substantive
due process. Again, we disagree.


                                              14
       To state a substantive due process claim, plaintiffs must show as a threshold
matter that a state actor deprived them of a constitutionally protected life, liberty or
property interest. (Shanks v. Dressel (9th Cir. 2008) 540 F.3d 1082, 1087 (Shanks).)
Plaintiffs assert they have a protected property interest in the enforcement of the County
Code against adjoining property owners to the same level as they complied with the
zoning code. They base this alleged property interest on the County’s general police
power to enforce its zoning ordinance to maintain the character of an area as established
by comprehensive zoning plans. We conclude, however, that plaintiffs’ “failure to
enforce” the Code to achieve the same result allegations are insufficient to establish the
requisite threshold.
       Several federal cases have rejected a theory similar to the one advanced by
plaintiffs here. For example, in Gagliardi v. Village of Pawling (2d Cir. 1994) 18 F.3d
188, 189 (Gagliardi), the Second Circuit affirmed the dismissal of the plaintiffs’ due
process claim where the plaintiffs alleged a municipality failed to enforce the zoning laws
against their neighbors. The Second Circuit reasoned that “[n]o due process right is
implicated here because the [plaintiffs] have no right to demand that the Municipal
Defendants enforce the zoning laws.” (Id. at p. 192.)
       Similarly, in Shanks, the Ninth Circuit rejected a substantive due process
challenge based on a municipality’s and its employees’ failure to enforce the zoning code
against a developer. (Shanks, supra, 540 F.3d at p. 1084.) There, the municipality issued
a building permit to convert a private home into a student residence in an established
historic district within the plaintiffs’ neighborhood without first requiring the developer
to obtain a certificate of appropriateness and administrative special permit as required by
the zoning code. (Id. pp. 1084-1085.)
       Both Gagliardi and Shanks emphasized the general rule that a state or
governmental agency’s failure to protect an individual from “ ‘harms inflicted by persons
not acting under color of law’ will not ordinarily give rise to § 1983 liability.” (Shanks,

                                              15
supra, 540 F.3d at pp. 1087-1088; Gagliardi, supra, 18 F.3d at p. 192 [the Due Process
Clause does not guarantee security from the acts of others].) This is because “[t]he
Constitution generally does not require the state to ‘protect the life, liberty, and property
of its citizens against invasion by private actors.’ ” (Shanks, supra, 540 F.3d at p. 1087;
DeShaney v. Winnebago County Dep’t of Soc. Serv. (1989) 489 U.S. 189, 195 [103
L.Ed.2d 249] [“The [Due Process] Clause is phrased as a limitation on the State’s power
to act, not as a guarantee of certain minimal levels of safety and security”]; see also
Garcia v. Superior Court (1990) 50 Cal.3d 728, 739 [“[t]he State’s failure to prevent
harm inflicted by a private actor does not give rise to a cause of action under section
1983”].)
       We find these cases’ persuasive authority to support our conclusion that plaintiffs
do not possess any protected property interest in having the County or Mull enforce the
County Code against their neighbors to obtain the same level of compliance as
voluntarily supplied by plaintiffs, especially since enforcement under Shasta County
Code section 1.12.030 is discretionary. (Gagliardi, supra, 18 F.3d at p. 192 [substantive
due process does not generally require government to enforce laws against private
wrongdoers]; Shanks, supra, 540 F.3d at pp. 1087-1088 [municipality had no duty to
safeguard plaintiffs from developer’s code violations].) Plaintiffs’ simply have no right
to demand that the County or Mull enforce the zoning code to achieve the same result
against their neighbors. (Dix, supra, 53 Cal.3d at p. 451 [a private citizen, even if
personally aggrieved, has no right or interest in controlling prosecutor’s discretion]; see
also Kathleen R. v. City of Livermore (2001) 87 Cal.App.4th 684, 698-699 [plaintiff
failed to state a substantive due process claim based on a library’s failure to protect her
son from harmful material placed on the internet by private persons, which he accessed
using the library’s public computers].)
       The first amended complaint, moreover, contains no allegations that the neighbors
themselves were acting under color of law or that they were conspiring with County

                                              16
officials to avoid the County ordinances. Under these circumstances, the County had no
independent constitutional duty to protect plaintiffs from the negative consequences--
economic, aesthetic, or otherwise--of the neighbors’ property and the junk that may have
been present there. (Shanks, supra, 540 F.3d at p. 1088; Gagliardi, supra, 18 F.3d at
p. 192.)
       The trial court properly sustained the demurrer to count three of plaintiffs’ second
cause of action.

                                              IV

                   “Flagging” the Property after Alleged Grading Violation

       Count 1 of plaintiffs’ second cause of action alleges the County violated their
substantive and procedural due process rights by sending them a certified letter in June
2009 notifying them that the County believed a grading violation had occurred on the
property and informing them that a hold would be placed on the issuance of any further
permits or site inspections until the grading violation was cleared. We conclude the June
2009 letter did not violate plaintiffs’ rights to due process.

       A.     Substantive Due Process

       “Typical land use disputes involving alleged procedural irregularities, violations of
state law, and unfairness ordinarily do not implicate substantive due process.” (Las
Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 856 (Las
Lomas); see also Stubblefield Construction Co. v. City of San Bernardino (1995)
32 Cal.App.4th 687, 709-710 [recognizing development project rejections and refusals to
issue building permits generally do not implicate substantive due process] (Stubblefield).)
Rather, a substantive due process violation requires more than “ ‘ordinary government
error.’ ” (Las Lomas, supra, 177 Cal.App.4th at p. 856.) Such a violation “requires some
form of outrageous or egregious conduct constituting ‘a true abuse of power.’ ” (Ibid.;
Galland v. City of Clovis (2001) 24 Cal.4th 1003, 1032 [“the arbitrary government

                                              17
conduct that triggers a substantive due process violation is not ordinary government error
but conduct that is in some sense outrageous or egregious”] (Galland).)
       To state a viable substantive due process claim, then, plaintiffs must show some
outrageous conduct by the County or Mull, rising to the level of a true abuse of power,
that deprived them of a constitutionally protected life, liberty or property interest.
(Shanks, supra, 540 F.3d at p. 1087.) Plaintiffs’ reliance on the “deliberate flouting of
the law” language from Galland, does not fundamentally change the applicable inquiry.
(Galland, supra, 24 Cal.4th at p. 1034.) While our Supreme Court cited with approval
language stating that “a substantial infringement of state law prompted by personal or
group animus, or a deliberate flouting of the law that trammels significant personal or
property rights, qualifies for relief under § 1983,” (ibid. [emphasis in original]), the court
later recognized that “[b]ecause substantive due process does not encompass ‘negligently
inflicted harm’ [citation], but rather ‘only the most egregious official conduct,’ wherein
government officials are ‘ “ ‘ “[abusing their] power, or employing it as an instrument of
oppression” ’ ” ’ [citation], it cannot be said to encompass governmental mistakes and
bureaucratic errors that are something less than an abuse of power.” (Ibid.)
       Regardless of whether the standard is articulated as outrageous or egregious
official conduct or as a deliberate flouting of the law, plaintiffs must demonstrate that the
conduct complained of amounted to an abuse of power. (Galland, supra, 24 Cal.4th at
p. 1034.) Based on the allegations of the first amended complaint, plaintiffs have not,
and cannot, satisfy this heavy burden.
       Plaintiffs identify their right to a certificate of compliance as the property interest
supporting their due process challenge. They also claim they were denied a liberty
interest to “earn [their] livelihood by any lawful calling” because the County’s letter
effectively denied plaintiffs the ability to obtain any permits on their property.
       The allegations surrounding the certificate of compliance and the denial of the
right to seek a permit are as follows: In April 2008, plaintiffs requested the County issue

                                              18
them a certificate of compliance recognizing six parcels on their approximately 148 acres
within the County. At the same time they applied to the County for the certificate of
compliance, they also applied for a similar certificate from the City of Anderson, which,
unlike the County, promptly processed their request. Plaintiffs allege the County was
required to issue them the nondiscretionary certificate of compliance under state law.
       In early June 2009, plaintiffs conducted grading activity on their property. As a
result of the grading, the County issued a letter on June 16, 2009, purportedly “flagging”
plaintiffs’ property. The June 2009 letter states, “a hold will be put on the issuance of
any further permits or site inspection until the grading violation is cleared,” and that
“additional fees, the refusal of this office to issue development permits on this parcel for
up to two years, or referral to the Shasta County District Attorney’s office” were also
possibilities. Plaintiffs disputed that their activities required a grading permit or that a
grading violation had occurred.
       On appeal, plaintiffs assert that the County refused to act on their request to issue
the certificate of compliance based on the “flagging” letter. State law, they argue,
required the County to issue the certificate. Plaintiffs cite the California Permit
Streamlining Act, and in particular Government Code section 65920, for the proposition
that the County had a duty to issue the certificate within a certain period of time. The
time limits of the Permit Streamlining Act, however, do not apply to certificates of
compliances. (Findleton v. Board of Supervisors (1993) 12 Cal.App.4th 709, 714 [Permit
Streamlining Act deadlines are irrelevant to requests for certificates of compliance]
(Findleton).)
       Although not specifically cited in the first amended complaint nor in plaintiffs’
appellate briefs, certain provisions of the Subdivision Map Act make issuing certificates
of compliance a ministerial rather than discretionary act. (See Gov. Code, § 66499.35.)
Under Government Code section 66499.35, a real property owner may request, and a
local agency shall determine, whether real property complies with the Subdivision Map

                                              19
Act. (Ibid.) The agency must issue a certificate of compliance if it finds the property
complies, or it must issue a conditional certificate of compliance if it finds the property
does not. (Ibid.; see also Findleton, supra, 12 Cal.App.4th at p. 714 [issuance of
certificate of compliance is a ministerial rather than discretionary act].) It appears, then,
that the County had a nondiscretionary duty to issue plaintiffs either an unconditional or
conditional certificate of compliance in response to their request.
       That the County had such a duty, however, does not mean plaintiffs have
established a substantive due process violation. It is clear the alleged June 2009 grading
violation did not occur until over a year after plaintiffs requested the certificate of
compliance from the County in April 2008. This timeline illustrates that the County’s
failure to process the certificate of compliance stemmed from its own delay rather than
any animus towards plaintiffs based on the purported grading violation or “flagging”
letter. The allegations regarding the City of Anderson serve only to highlight the
County’s delayed processing abilities.
       While the County may have been required under the Subdivision Map Act to issue
a certificate of compliance, or, at a minimum, a conditional certificate of compliance
(Gov. Code, § 66499.35), we cannot say its failure to do so in an expeditious manner
rises to the level of egregious conduct as required for a substantive due process violation.
(Findleton, supra, 12 Cal.App.4th at p. 711 [after eight months, county still had not
finally acted upon application for a certificate of compliance].) Instead, the failure to
issue the certificate arguably represents a violation of state law. Such a violation does not
implicate substantive due process, however. (Los Lomas, supra, 177 Cal.App.4th at
p. 856; Stubblefield, supra, 32 Cal.App.4th at pp. 709-710 & fn. 15 [“Even where state
officials have allegedly violated state law or administrative procedures, such violations
do not ordinarily rise to the level of a constitutional deprivation”].) “The doctrine of
substantive due process ‘does not protect individuals from all [governmental] actions that



                                              20
infringe liberty or injure property in violation of some law.’ ” (Las Lomas at p. 856;
Stubblefield at p. 709.)
       The allegations against Mull, moreover, do not establish egregious conduct rising
to the level of an abuse of discretion. Plaintiffs’ factual allegations pertaining to Mull can
be summed up as follows: plaintiffs sent Mull a letter in September 2010--a year after
plaintiffs received the June 2009 “flagging” letter--detailing their complaints against their
neighbors regarding the junk issue. Mull acknowledged that he received plaintiffs’ letter
and that he reviewed related documents. These allegations, even if true, fall far short of
outrageous or egregious conduct. (Stubblefield, supra, 32 Cal.App.4th at pp. 710-711
[councilmember who vigorously opposed plaintiff’s development project did not engage
in outrageous or irrational conduct].)
       And besides the certificate of compliance, plaintiffs do not allege that they ever
sought or that they were denied a permit to build anything on their property. While they
allege they contemplated seeking a building permit for a house or a permit for a gravel
processing facility, there are no allegations that they actually did so or that the County
denied such applications. Without more, plaintiffs cannot establish that they were denied
the right to seek further permits from the County. This is true even though the June 2009
letter stated a hold would be placed on the property. As plaintiffs’ complaint elsewhere
points out, the County said it would record a notice of noncompliance against the
property concerning junk and OHV use, but such notices were never recorded.
       The allegations of the complaint do not state a cause of action for a violation of
substantive due process based on the certificate of compliance and the June 2009 letter
regarding the alleged grading violation. The trial court, therefore, properly sustained the
demurrer to count 1 of plaintiffs’ second cause of action.




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       B.      Procedural Due Process

       Reduced to its essence, plaintiffs contend the County deprived them of their rights
to procedural due process by sending them the June 2009 letter regarding the grading
violation without first holding a hearing. The procedural component of the Fourteenth
Amendment’s due process clause “ensures a fair adjudicatory process before a person is
deprived of life, liberty, or property.” (Las Lomas, supra, 177 Cal.App.4th at p. 852.)
       According to plaintiffs, they were entitled to the hearing procedures specified in
Government Code section 53069.4 and Shasta County Code section 1.12.050, subdivision
(B)(5). We conclude the June 2009 letter did not deprive plaintiffs of any procedural due
process rights under either of those provisions.
       Government Code section 53069.4 codifies a local agency’s right to enact
administrative fines and penalties for violations of its local ordinances. (Gov. Code,
§ 53069.4, subd. (a)(1).) Under the statute, a local agency “shall set forth by ordinance
the administrative procedures that shall govern the imposition, enforcement, collection,
and administrative review by the local agency of those administrative fines or penalties.”
(Ibid.) The statute contemplates monetary fines and penalties. (Gov. Code, § 53069.4,
subd. (a)(1) [“Where the violation would otherwise be an infraction, the administrative
fine or penalty shall not exceed the maximum fine or penalty amounts for infractions set
forth in subdivision (b) of Section 25132 and subdivision (b) of Section 36900); subd. (d)
[“If the fine or penalty has not been deposited and the decision of the court is against the
contestant, the local agency may proceed to collect the penalty pursuant to the procedures
set forth in its ordinance”].)
       Shasta County Code section 1.12.050 is the County’s ordinance regarding civil
penalties and administrative fines. The ordinance provides that “[a]ny person who
violates any regulatory or prohibitory provision of this code is liable for a civil penalty
for each offense which shall not exceed the amount that could be imposed as a fine in a



                                             22
criminal prosecution for that offense if it was determined to be a misdemeanor.” (Shasta
Code Code, § 1.12.050, subd. (A).) Under subdivision (B)(5), “[a]ny party who has been
fined or penalized pursuant to this section may request administrative review of the
decision imposing the fine or penalty,” (Shasta Code Code, § 1.12.050, subd. (B)(5).)
       In this case, plaintiffs’ first amended complaint is devoid of any allegations that
the County or Mull imposed either an administrative fine or penalty on them as a result of
the alleged grading violation. Allegations regarding the content of the June 2009 letter
also do not show that any such monetary measures were imposed on plaintiffs. The
procedures afforded by Government Code section 53099.4 and subdivision (B)(5) of the
Shasta County Code section 1.12.050 to contest monetary fines and penalties therefore do
not apply. As plaintiffs were not, as a matter of law, entitled to those procedures, they
cannot state a cause of action for a violation of their procedural due process rights based
on the County’s and Mull’s alleged failure to comply with those provisions.
       Plaintiffs, moreover, acknowledge that the County has the right to issue stop work
orders whenever it reasonably believes there has been a violation of its code. As noted
above, Shasta County Code section 1.12.030, subdivision (A), authorizes an enforcing
officer to use “administrative processes such as notices of noncompliance, warning
letters, stop orders, or cease and desist orders” prior to enforcing the code. Noticeably
absent from section 1.12.030 is any mention of a mandated hearing before an enforcing
officer may utilize the above administrative processes. Nor is there anything in the code
provisions plaintiffs cite that says the County may not place holds on properties where
the County has determined a code violation has occurred. Under these circumstances, we
cannot say plaintiffs were deprived of any procedural due process rights when the County
sent them the June 2009 letter about the grading violation.




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                                       DISPOSITION

       The final order of dismissal is affirmed. Defendants are awarded their costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(1).)



                                                      HULL                  , J.



We concur:



      BLEASE                , Acting P. J.



      MAURO                 , J.




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