City of Sierra Madre v. SunTrust Mortg., Inc.

244 Cal. Rptr. 3d 118, 32 Cal. App. 5th 648
CourtCalifornia Court of Appeal, 5th District
DecidedFebruary 26, 2019
DocketB284550
StatusPublished
Cited by6 cases

This text of 244 Cal. Rptr. 3d 118 (City of Sierra Madre v. SunTrust Mortg., Inc.) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Sierra Madre v. SunTrust Mortg., Inc., 244 Cal. Rptr. 3d 118, 32 Cal. App. 5th 648 (Cal. Ct. App. 2019).

Opinion

LAVIN, J.

*651INTRODUCTION

This is the second appeal before us involving a public nuisance created by Jeffrey *121M. and Taryn N. Hildreth (the Hildreths) on their residential property in Sierra Madre. (See *652City of Sierra Madre v. Hildreth (Dec. 26, 2018, B281729), 2018 WL 6787331 [nonpub. opn.].) Because the Hildreths refused to abate the nuisance, the City of Sierra Madre (City) brought the present action against them and their mortgage lender, appellant SunTrust Mortgage, Inc. (SunTrust), and sought the appointment of a receiver to undertake the remediation. SunTrust did not object to the appointment of the receiver or the remediation plan, but when the receiver borrowed $250,000 to fund the remediation work, SunTrust objected to the issuance of the lien securing that loan because it had priority over SunTrust's preexisting lien. The receiver and real party in interest in this appeal sought approval for the super-priority lien because no lender would loan funds without it. SunTrust appeals the court's order authorizing the super-priority lien.

SunTrust's primary argument is that Health and Safety Code section 17980.7 -a statute authorizing the appointment of a receiver in cases involving remediation of substandard buildings-does not explicitly provide that a court may issue a super-priority lien which displaces previously existing liens. We reject this argument because the use of super-priority liens has been approved in California since at least 1915. SunTrust's remaining arguments are without merit. We therefore affirm the order.

FACTS AND PROCEDURAL BACKGROUND

1. Over the course of more than 10 years, the Hildreths undertake several unpermitted construction projects on their residential property.

In July 1998, the Hildreths purchased a small home in Sierra Madre. The home was in substantial disrepair and the Hildreths began a complete remodel-without the benefit of any permits from the City. In October 1998, after the City issued a stop work order due to the absence of permits, the Hildreths requested and obtained permits for plumbing, building, electrical, and mechanical work relating to the renovation. Although the Hildreths eventually completed the work contemplated by the permits and moved into the home, they never notified the City the work was completed or requested a final inspection.

Around the time the Hildreths began the renovation, they decided they wanted to develop the home and the property for commercial use-specifically, a wine tasting and sales business. In September 1999, the Hildreths applied for a conditional use permit describing their proposed business operation, but the City never issued the requested permit. The Hildreths, however, proceeded to develop the property for their proposed wine business. In 2005, the City discovered the Hildreths had excavated a large pit on the eastern side of their property which caused a portion of an adjacent alley to collapse. The City immediately issued a stop work order and *653required the Hildreths to work with a licensed engineer and a licensed shoring contractor, together with the City Building Department, to install temporary shoring. The Hildreths later constructed an unpermitted cement structure in the pit.

Then, in early 2009, the City discovered the Hildreths had-again without permits-excavated the western portion of their property to a depth of 12 feet below ground level, including the area underneath the western side of the house. The excavated area ran the entire length of the property and extended east to the unpermitted subterranean cement structure. In *122June 2009, the City issued another stop work order. It appears SunTrust refinanced the Hildreths' mortgage during this time, as a deed of trust evidencing a mortgage loan of $276,000 was recorded in March 2009.

In 2010, apparently undeterred by the City's prior warnings, the Hildreths erected a large, unpermitted deck in their front yard that extended over the public sidewalk adjacent to their property. In late October 2010, after receiving complaints from City residents, the City inspected the property and issued another stop work order.

2. The City files a nuisance action naming the Hildreths and SunTrust as defendants.

On December 1, 2010, the City filed the present action against the Hildreths and SunTrust seeking declaratory relief and asserting claims for public nuisance, municipal code violations, and state housing law violations. The following month, in January 2011, the court issued a preliminary injunction identifying a minimum of 30 violations of state and local building codes and prohibiting the Hildreths from performing any additional work or residing in the home without required permits, inspections, and approvals by the City. The court also ordered the Hildreths to submit the requisite applications, plans, documents, and fees to the City regarding the outstanding violations and, upon approval by the City, to remediate the home and the property.

3. After the Hildreths fail to remediate the property, the court appoints a receiver. SunTrust does not object to the appointment.

The Hildreths refused to cooperate with the City or comply with the preliminary injunction. In August 2012, more than a year and a half after the court issued the preliminary injunction, the City asked the court to appoint a receiver to take custody and control of the Hildreths' property. SunTrust did not object to the appointment. Citing the Hildreths' continuing obstruction, the court granted the City's request and appointed David J. Pasternak to act *654as the receiver. Because the Hildreths obstructed the receiver's work, the City and the receiver agreed to postpone the remediation until after the court entered judgment in the nuisance action.

4. Following a lengthy bench trial, the court finds in favor of the City on all claims and enters judgment accordingly. SunTrust does not participate in the trial.

The court conducted a 27-day bench trial during the spring of 2016. SunTrust did not participate in the trial but reserved the right to challenge the issuance of any lien that would displace its position as first lienholder.

The court issued a lengthy and thorough statement of decision in support of its judgment in favor of the City on all claims. As pertinent here, the court found the unpermitted and unapproved construction constituted a public nuisance under the City's municipal code as well as under state law, and injunctive relief to abate the nuisance was appropriate. The court entered judgment in the City's favor in January 2017.

Also, and as part of the judgment, the court ordered the previously-appointed receiver to oversee remediation of the property. The court found the Hildreths would not be willing or able to remediate the property if given the opportunity to do so. The Hildreths were required to pay the receiver's costs, however.

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Cite This Page — Counsel Stack

Bluebook (online)
244 Cal. Rptr. 3d 118, 32 Cal. App. 5th 648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-sierra-madre-v-suntrust-mortg-inc-calctapp5d-2019.