Donghai Ma vs. Sacramento City Code Compliance Division

2018-00246593-CU-PT

Nature of Proceeding: Hearing on Demurrer

Filed By: Bickel, Melissa D.

Defendant City of Sacramento’s demurrer or alternative motion to strike Plaintiff’s administrative appeal is UNOPPOSED; the motion to strike is granted.

This action is based upon the City’s imposition of an administrative penalty of $318,000 on Plaintiff pursuant to Sacramento City Code sections 8.132.040(B) and 8.132.050, following the City’s discovery of illegal indoor cultivation of 642 cannabis plants in a home owned by Plaintiff in Sacramento. The City’s Code Enforcement issued the penalty on July 2, 2018, and the City’s administrative appeals division affirmed the penalty on September 19, 2018. Notice of the administrative appeal decision was served on Plaintiff on October 3, 2018.

Plaintiff instituted the instant action by filing a notice of administrative appeal on December 17, 2018.

Defendant demurs, or alternatively moves to strike, the appeal on the grounds that Plaintiff has failed to state any grounds for his appeal and that the appeal was not timely filed.

Code of Civil Procedure section 436 authorizes filing a motion to strike “any irrelevant, false or improper matter inserted in any pleading.” (Code Civ. Proc. § 436(a).) It also may be used to “strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state.” (Code Civ. Proc. § 436(b).)

Any appeal of a local administrative decision pertaining to penalties is subject to Government Code section 53069.4. Subparagraph (b) of the statute requires that any person seeking to appeal the administrative order or decision regarding the imposition, enforcement or collection of administrative fines or penalties under the statute, notwithstanding Code of Civil Procedure section 1094, must file his or her appeal with the superior court within 20 days after service of the final order or decision. (Govt. Code § 53069.4(b)(1).)

Here, the notice of decision was served on Plaintiff on October 3, 2018, but Plaintiff did not file this action until December 17, 2018. Thus, Plaintiff’s appeal is untimely. Section 53069.4(c) provides that if an appeal is not timely filed within the 20 days, the order or decision shall be deemed confirmed.

The Court notes that although Plaintiff is self-represented in this action in propria persona, self-represented litigants are not entitled to special treatment. (Nelson v.

Gaunt (1981) 125 Cal. App.3d 623, 638-639.) While no doubt has little or no legal training, self-represented litigants are required to follow the same procedural rules that govern civil litigation. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523.) A party representing himself or herself is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants and attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210). In other words, Plaintiff’s failure to file a substantive opposition here is accorded the same treatment as would any other party engaging in the same conduct who was represented by counsel.

For the foregoing reasons, and in light of Plaintiff’s lack of opposition to the motion, the Court GRANTS the motion to strike with leave to amend and thereby deems the demurrer moot. Plaintiff shall filed and serve any amended pleading not later than February 13, 2019. The responsive pleading shall be filed and served 30 calendar days thereafter, 35 days if service is by mail.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.