Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
XAVIER BECERRA
Attorney General
_________________________
:
OPINION : No. 18-502
:
of : February 16, 2021
:
XAVIER BECERRA :
Attorney General :
:
CATHERINE BIDART :
Deputy Attorney General :
:
________________________________________________________________________
THE HONORABLE MICHELLE D. BLAKEMORE, COUNTY COUNSEL OF
THE COUNTY OF SAN BERNARDINO, has requested an opinion on a question about
county nuisance abatement liens.
QUESTION PRESENTED AND CONCLUSION
Does a county’s nuisance abatement lien created under Government Code section
25845 have a ten-year expiration period like the judgment lien referenced in that statute?
No. A county’s nuisance abatement lien created under Government Code section
25845 does not have a ten-year expiration period.
BACKGROUND
There are many different kinds of liens, which provide a way to obtain payment of
money owed. Typically, a lien gives a creditor a legal right or interest in another’s
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property, lasting until the underlying debt is satisfied.1 Here, we are asked about a type of
lien used to recover a county’s costs of abating a nuisance.2
A county may summarily abate a nuisance, or bring an action (administrative or
judicial) to abate a nuisance.3 Either way, under Government Code section 25845, the
owner of property on which a nuisance is found to exist is liable to the county for the costs
of abating the nuisance.4 If the owner does not pay, the county may assess the costs against
1
Black’s Law Dictionary (11th ed. 2019).
2
A nuisance is defined by statute as
[a]nything which is injurious to health, including, but not limited to, the illegal sale
of controlled substances, or is indecent or offensive to the senses, or an obstruction
to the free use of property, so as to interfere with the comfortable enjoyment of life
or property, or unlawfully obstructs the free passage or use, in the customary
manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public
park, square, street, or highway.
(Civ. Code, § 3479.) Additionally, a law may deem something to be a nuisance, known as
a nuisance per se. (Beck Development Co. v. Southern Pacific Transportation Co. (1996)
44 Cal.App.4th 1160, 1207 [“[W]here the law expressly declares something to be a
nuisance, then no inquiry beyond its existence need be made and in this sense its mere
existence is said to be a nuisance per se”].)
Civ. Code, §§ 3491 (setting forth remedies for public nuisance of indictment or
3
information, civil action, or abatement), 3501 (setting forth remedies for private nuisance
of civil action or abatement); Code Civ. Proc., § 731 (authorizing officers including county
counsel to bring civil action against public nuisance); Gov. Code, § 25845, subd. (a)
(authorizing county ordinance to establish procedures for abatement of nuisance, while
recognizing availability of summary abatement where board of supervisors or authorized
officer determines nuisance is immediate threat to public health or safety); see Civ. Code,
§§ 3480 (defining public nuisance as one affecting at same time a considerable number of
persons or community or neighborhood, even if extent of annoyance or damage caused
may differ among those affected), 3481 (defining private nuisance as every nuisance that
is not a public nuisance).
4
Gov. Code, § 25845, subd. (b) (“In any action to abate a nuisance, whether by
administrative proceedings, judicial proceedings, or summary abatement, the owner of the
parcel upon which the nuisance is found to exist shall be liable for all costs of abatement
incurred by the county, including, but not limited to, administrative costs, and any and all
costs incurred in the physical abatement of the nuisance,” and recovery of those costs “shall
be in addition to and shall not limit any prevailing party’s right to recover costs pursuant
to Sections 1032 and 1033.5 of the Code of Civil Procedure or any other provision of law”);
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the property and collect the assessment in the same way as a tax.5 After making the
assessment, the county also may create a nuisance abatement lien against the property.6
This lien is created by the county board of supervisors causing a “notice of abatement lien”
to be recorded.7 The county may then collect its assessed costs of abatement in the same
way that the holder of a judgment lien on real property would collect the money due under
that judgment.8 A judgment lien9 against real property is a mechanism to obtain money
awarded in a court judgment using proceeds of an eventual sale of the property.10
see Gov. Code, § 25845, subd. (c) (authorizing ordinance providing for recovery of
attorneys’ fees).
5
Gov. Code, § 25845, subd. (d) (“If the owner fails to pay the costs of the abatement
upon demand by the county, the board of supervisors may order the cost of the abatement
to be specially assessed against the parcel. The assessment may be collected at the same
time and in the same manner as ordinary county taxes are collected, and shall be subject to
the same penalties and the same procedure and sale in case of delinquency as are provided
for ordinary county taxes. All laws applicable to the levy, collection, and enforcement of
county taxes are applicable to the special assessment”).
6
Gov. Code, § 25845, subd. (e) (“If the board of supervisors specially assesses the cost
of the abatement against the parcel, the board also may cause a notice of abatement lien to
be recorded”).
7
Gov. Code, § 25845, subd. (e).
8
Gov. Code, § 25845, subd. (g) (recordation of notice of abatement lien has same effect
as recordation of abstract of money judgment, and creates abatement lien that has same
priority as judgment lien on real property); see Code Civ. Proc., § 697.340, subds. (a)
(except as otherwise specified, judgment lien attaches to all real property interests within
the county that are subject to enforcement of a money judgment, with specified exceptions)
& (b) (judgment lien attaches to any subsequently acquired interest, within the county, on
which judgment lien could be created under subdivision (a)).
9
This Opinion refers to judgment liens as those created by recording an abstract of a
money judgment under Article 2 (commencing with section 697.310) of Chapter 2 of
Division 2 of Title 9 of Part 2 of the Code of Civil Procedure.
10
Longview Internat., Inc. v. Stirling (2019) 35 Cal.App.5th 985, 988-989.
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A judgment lien expires ten years after the judgment, unless renewed.11 We have
been asked to determine whether a county’s abatement lien created under Government
Code section 25845 similarly expires.12 As explained below, we conclude that it does not.
ANALYSIS
To interpret Government Code section 25845, our first task “is to ascertain the intent
of the Legislature so as to effectuate the purpose of the law.”13 To do so, we start with “the
words of the statute themselves, giving to the language its usual, ordinary import and
according significance, if possible, to every word, phrase and sentence in pursuance of the
legislative purpose.”14
Government Code section 25845, subdivision (e) allows a county to record a “notice
of abatement lien” for its nuisance abatement costs assessed against a property.15 The
recording creates an abatement lien, described by subdivision (g) of the statute, as follows:
Recordation of a notice of abatement lien pursuant to subdivision (e) has the
same effect as recordation of an abstract of a money judgment recorded
pursuant to Article 2 (commencing with Section 697.310) of Chapter 2 of
11
Code Civ. Proc., §§ 697.310, subd. (b) (“Unless the money judgment is satisfied or
the judgment lien is released, subject to Section 683.180 (renewal of judgment), a judgment
lien created under this section continues until 10 years from the date of entry of the
judgment”), 683.180, subd. (a) (judgment lien is extended for ten years from date of filing
application to renew judgment if application is recorded before lien expires).
12
We have not been asked about, nor do we address, the duration of liens created under
other statutes that authorize a county to recover various abatement costs. (See, e.g., Gov.
Code, §§ 38773.2 [recovery of costs to summarily abate graffiti nuisance], 54988 [recovery
of costs to abate public nuisance and various violations, including violations of State
Housing Law, and California Building Standards Code].) Despite their somewhat similar
subject matter, those other statutes use different language from Government Code section
25845.
13
Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386.
14
Id. at pp. 1386–1387.
15
Gov. Code, § 25845, subd. (e) (“If the board of supervisors specially assesses the cost
of the abatement against the parcel, the board also may cause a notice of abatement lien to
be recorded”); see Gov. Code, § 25845, subd. (d) (“If the owner fails to pay the costs of
the abatement upon demand by the county, the board of supervisors may order the cost of
the abatement to be specially assessed against the parcel”).
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Division 2 of Title 9 of Part 2 of the Code of Civil Procedure. The lien created
has the same priority as a judgment lien on real property and continues in
effect until released. Upon order of the board of supervisors, or any county
officer authorized by the board of supervisors to act on its behalf, an
abatement lien created under this section may be released or subordinated in
the same manner as a judgment lien on real property may be released or
subordinated.16
Subdivision (g)’s statement that “[t]he lien created . . . continues in effect until
released” is the only language that directly addresses the duration of the abatement lien.17
This language unambiguously conveys an intent that the abatement lien lasts until released.
As such, it compels our conclusion that the abatement lien does not expire like a judgment
lien on real property.18
While other language of the statute clearly intends to apply certain aspects of a
judgment lien to the abatement lien, that is not the case for expiration. We see nothing that
would support a departure from the plain language unequivocally stating that the abatement
lien continues until released.19
At the outset, subdivision (g) of the statute provides that recording a notice of
abatement lien has the “same effect” as a recording that creates a judgment lien on real
property.20 This “same effect” language, standing alone, could conceivably convey an
intent that, among other things, the abatement lien is in effect for only as long as a judgment
Gov. Code, § 25845, subd. (g), italics added. Again, recording an abstract of a money
16
judgment creates a judgment lien, unless provided otherwise by statute. (See note 9, ante.)
17
Gov. Code, § 25845, subd. (g).
18
See Lennane v. Franchise Tax Bd. (1994) 9 Cal.4th 263, 268 (“If there is no ambiguity
in the language of the statute, ‘then the Legislature is presumed to have meant what it said,
and the plain meaning of the language governs,’” quoting Kizer v. Hanna (1989) 48 Cal.3d
1, 8).
19
See Williams v. Superior Court (2001) 92 Cal.App.4th 612, 622 (“Where the statute
is clear, courts will not ‘interpret away clear language in favor of an ambiguity that does
not exist,’” quoting Lennane v. Franchise Tax Bd., supra, 9 Cal.4th at p. 268, citations
omitted). Additionally, we note that the legislative history sheds no additional light on the
intended duration of the lien, nor have we found any cases or treatises on the matter.
20
Gov. Code, § 25845, subd. (g); see Code Civ. Proc., § 697.310, subd. (a) (recording
abstract of money judgment creates judgment lien, unless provided otherwise by statute).
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lien.21 But the ensuing sentence dispels that view by squarely addressing how long the
abatement lien is in effect, stating that it “continues in effect until released.”22
In any event, it is not clear that the “same effect” of the recordings that create the
liens would even cause the abatement lien to expire. What triggers a judgment lien to
expire is the passage of ten years from the underlying court judgment, because the
judgment itself expires at that time.23 There is no such trigger for an abatement lien, which
is not predicated on a court judgment that expires, but on a county’s assessment of nuisance
abatement costs against a property. We see nothing providing for the assessment to expire,
nor for anything else to make it do so. This provides further support for our view that a
nuisance abatement lien stays in effect until released.
Nothing in the remaining language shows any intent to the contrary. Subdivision
(g) provides that the abatement lien has the “same priority” and “may be released or
subordinated in the same manner” as a judgment lien on real property.24 This identifies the
property interests reached by the lien25 and how to release the lien or make it secondary to
another lien.26 But it shows no intent to prescribe an expiration period for the abatement
lien. It is instead consistent with an intent that the abatement lien stays in effect until
released.
21
See Code Civ. Proc., § 697.310, subd. (b) (judgment lien expires ten years after date
of judgment).
22
Gov. Code, § 25845, subd. (g).
23
See Code Civ. Proc., §§ 697.310, subd. (b) (judgment lien expires ten years after date
of judgment), 683.020 (judgment becomes unenforceable ten years after its entry, except
as otherwise provided by statute).
24
Gov. Code, § 25845, subd. (g).
25
See, e.g., Code Civ. Proc., §§ 695.010, subd. (a) (“Except as otherwise provided by
law, all property of the judgment debtor is subject to enforcement of a money judgment”),
697.340, subds. (a) (except as otherwise specified, judgment lien attaches to all real
property interests within the county that are subject to enforcement of a money judgment,
with specified exceptions) & (b) (judgment lien attaches to any subsequently acquired
interest, within the county, on which judgment lien could be created under subdivision (a)).
26
Code Civ. Proc., § 697.370 (setting forth procedure for judgment creditor to release
or subordinate judgment lien); see Connell v. Zaid (1969) 268 Cal.App.2d 788, 792 (“To
subordinate is to lose position—to give up a better for a worse status”); 4 Cal. Real Est.
§ 10:200 (4th ed.) (“When a subordination occurs, the senior lien that is being subordinated
to a subsequent lien is called the ‘subordinated lien,’ and the junior lien that attains priority
over the prior lien is called the ‘subordinating lien’”).
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We therefore reject any notion that provisions conferring upon the abatement lien
certain traits of a judgment lien are intended to impose the ten-year expiration period of a
judgment lien on an abatement lien. As shown above, in addition to being incongruous in
application, that conclusion would contravene the statute’s plain words that the abatement
lien “continues in effect until released.”27
Finally, we note that the Legislature did not specify a procedure for renewing the
abatement lien, as it did for a judgment lien. The renewal procedure for a judgment lien is
to first file with the court an application to renew the judgment, and then, before the
judgment lien expires, record a copy of that application.28 That procedure would not neatly
apply here: the abatement lien does not stem from a judgment and its recorded abstract,
but from a county’s assessed abatement costs against a property and recorded notice of the
lien.29
We observe that the Legislature’s decision not to specify a renewal procedure for
the abatement lien further reflects an intent that it does not expire like a judgment lien.
First, there is no reason to provide a way to renew a lien that is not meant to expire. Second,
if instead the Legislature somehow intended that the abatement lien expired, we would
expect to see a renewal procedure to preserve the abatement lien despite the passage of
time. Without a way to renew, the expiration of the lien would curtail the statutory purpose
of enabling county recovery of nuisance abatement costs. The fact that no renewal
procedure is provided reinforces our conclusion that the Legislature did not intend for
abatement liens created under Government Code section 25845 to expire, as judgment liens
do. Instead, this type of abatement lien “continues in effect until released,” as the statute
expressly provides.
*****
27
Gov. Code, § 25845, subd. (g).
28
Code Civ. Proc., § 683.180, subd. (a) (judgment lien on real property is extended for
ten years from date of filing application to renew judgment if application is recorded before
lien expires); see Code Civ. Proc., § 683.150, subd. (a) (clerk shall enter renewal of
judgment upon filing of renewal application).
29
See Gov. Code, § 25845, subds. (e) & (g).
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