5c 5 39174. 11:1 mm um- t?iV Ii?k? Ln} '4 U3 5?3 Bouigvard, Suite 1200 Costa 92626-7670 Taicphunc: {1?34} . Facsm?tilc: [71-4) 835-?787 Attomcvs far Plaintiff" . DOES 1 through SCL inclusive, thendams. Fee Errmp! Per Gov. Cad: 03 SPRADLIN SMART, AFC JASDN M. MCEWEN - StaIe Ear Ne. 2-1673?? 1 .. mcewenu?g?gwss-lawgnm t? :32 5?2} .ICI-IOLAS NS State Bar No. 303963 ?ii 3 201B ER CITY 6F PALM a municipai c-omoration CGURT FOR 11 IE STATE 02" CALI FQRNIA FOR. THE COUN I GI: BRANCH PSCasn6275 CITY OF PALM a municipal CASE NO.: cameraman, COMPLAINT I?Eaimi?] 1. AEATEMENT OF A PUBLIC v. IRWIN JR., an individuai; and 2. CIVIL PENALTIES [Deemed Veri?ed in Cal. Cindi: Civ. Pmc" Plaintiff City of F'aim Springs, 3 municipai corpnrati'm, as: f0E10w5: GENERAL ALLEGATIONS 1- ?This acticm is: broughi and. prosecuted by the Ciry of Paim Springs (the. in 01'ch 1331::th that pub?ic health, safety, and welfare 9f (if the City. By this scrim, the City seeks to abate certain public nuisances existing an rear] property located at {077 E. Granvia Valmun?i, in the City of Palm Springs. Gaunt]; GT Riverside; State 0f I California, Assessor?s Farce] Numbers: Swan-m4, and {the This i?mperry consists of three parccla being as me continuous properly and is 30m 33 under the Palm Spr?ng Zoning Codc 'I'his zoning classi?cation restricts the usage ofthe Property rcsidmtia] was only. 12%531]: CUM Pm WOODRLIFF. SPRADLIN SMART ATTORNEYS AT LAW COSTA MESA 2. The City is authorized pursuant to Code of Civil Procedure section 731 to prosecute this action. 3. The City is additionally authorized to bring this action by Palm Springs Municipal Code section 1.01.240 to enforce the provisions of the PSMC, violations of which are per se public nuisances pursuant to PSMC section 1.01.165. 4. Plaintiff City is, and at all times mentioned herein has been, a California municipal corporation, organized and existing under the City Charter and by virtue of the Constitution and laws of the State of California, and is located within the County of Riverside, California. The City Council of Palm Springs is responsible for regulating land use within its borders, and is charged with protecting the public health and safety and promoting the general welfare and quality of life of its citizens. 5. The City is informed and believes, and based thereon alleges, that Defendant Kenneth Irwin (?Irwin?) is, and at all times relevant to this complaint was, an individual residing in the City ofPalm Springs, County of Riverside, State of California. Further, Irwin maintains an ownership interest in, occupies, manages, and/or otherwise controls the Property, including the building(s) and structure(s) thereon, and is, therefore, responsible for the conditions of the Property. 6. The true names and capacities of DOES 1 through 50, inclusive, are unknown to the City, which therefore sues said defendants by such fictitious names pursuant to Code of Civil Procedure section 474. When the true names and capacities of said ?ctitiously named defendants have been ascertained, the City will seek leave of this Court to amend this Complaint to insert the true names and capacities of said defendants in lieu of such fictitious names. 7. The City is informed and believes, and based thereon alleges, that at all times relevant to this action, DOES 1 through 50, inclusive, had a legal or equitable interest in the Property, including the building(s) and structure(s) located thereon, whether as owner, occupant, operator, manager, lessor, lessee, sublessor, sublessee, trustee, trustor, beneficiary, agent, or managing agent. 2 COMPLAINT 12065371 WOODRUFF, SPRADLIN 8: SMART ATTORNEYS AT LAW COSTA MESA 8. The City is informed and believes, and based thereon alleges, that each Defendant named herein or designated herein as a DOE defendant is responsible in some manner for the use of the Property contrary to the laws of the City of Palm Springs and the laws of the State of California as alleged herein. 9. Whenever in this Complaint reference is made to any act of Defendants, such allegation shall be deemed to mean each and every individually named Defendant, their of?cers, directors, agents, managers, representatives, employees, or af?liates, or DOES 1 through 50, inclusive, who authorized such acts while engaged in the operation, management, direction or control of the affairs of Defendants at the Defendants? direction, while acting within the course and scope of their duties. 10. Venue is proper in this judicial district inasmuch as the real property at issue in this proceeding is located within this judicial district. HISTORY OF VIOLATIONS 11. This Property has been the subject of code enforcement efforts by the City dating back to at least 2001, which efforts focused on a variety of structures on the Property originally used only as a holiday display. Over the years however, citizens? complaints and the City?s investigation revealed that the structures/displays had evolved into a year round display known as ?Robolights.? 12. The current iteration of code enforcement efforts started in February of 2016, when the City received complaints regarding an electrical ?re that had occurred on the Property. Further, the City received complaints regarding tour busses which were reportedly making stops at the residence to allow commercial tours of the Property. 13. Following the City?s receipt of these complaints, on June 9, 2016, an inspection of the Property was completed during which countless structures were found to exist on the Property which had been constructed without required permits, approvals, or inspections in violation of section 105.1 of the Palm Springs Building Administrative Code as adopted by PSMC section 8.04.310. Additionally, several of these structures were found to have been erected within the setback areas required by PSZC section 92.01.03. These 3 COMPLAINT [206537.l SMART ATTORNEYS AT LAW COSTA MESA structures include a multitude of free standing structures in the side and rear yard areas of the Property, with some in excess of 30 feet in height. Some of the structures observed on the Property included slides, a merry?go-round, ladders, and a Ferris wheel as well as several structures with openings facing the tour routes. Additionally, a variety of structures were found to have been added to the roof of the existing residential structure on the Property, including, but not limited to a platform designed to support two in?atable decorations which stand approximately 30-45? in height above the normal height of the residential structure. 14. During the June 9, 2016 inspection, the City?s Building Inspector identified two structures which create immediate life safety hazards for occupants and visitors of the Property. The first structure is approximately 15-25? tall unsupported wall display which was installed in the back yard adjacent to the main house. The second, is the large platform on the roof of the residential structure which is currently ?supporting? the 30-45? tall in?atable decorations. In the opinion of the Building Inspector, the platform, both with and without the in?atables, and the unsupported wall in the back yard, constitute immediate life safety hazards. 15. On November 23, 2016, City staff observed that the in?atable decorations had been installed on the roof of the residence and tours begun for the holiday season. Due to the hazardous conditions created by the platform (which was now mounted with two 30-45? in?atables on top of the existing residential structure), and the unsecured wall in the rear yard of the Property, combined with the increased presence of members of the general public at the Property due to Defendants? tours, the City?s Building Of?cial concluded that the structures presented an immediate life safety hazard and issued a ?Limited Entry Order?, which speci?ed that access to the PrOperty was restricted to Defendant Irwin and his licensed contractor only until such time as the hazards had been abated. This Limited Entry Order was posted on the property on November 23?. 16. Defendant Irwin expressly refused to comply with the Limited Entry Order and continued to allow members of the general public to tour the Property in exchange for donations in violation of the Limited Entry Order and section 114.1.3 of the Palm Springs 4 COMPLAINT [206537.l SPRADLIN SMART AT LAW COSTA MESA WOO Building Administrative Code as adopted by PSMC section 8.04.310. 17. As a result, the City began issuing administrative citations to Defendant Irwin each day that it found the Preperty was open to tours. Citations have been issued on at least 8 occasions since the November 23, 2016, Limited Entry Order was issued. These Citations have had no effect as Defendant Irwin has continued operation of the tours. Indeed, Defendant Irwin has now told the City and various news outlets that he refused to comply with the order and would continue to make his Property available to the public, despite the dangerous conditions identi?ed by the City. RELEVANT AUTHORITY 18. Pursuant to section 105.1 of the Palm Springs Building Administrative Code, as adopted by PSMC section 8.04.310, any person who intends to construct, enlarge, alter, repair, move, demolish, or to cause any such work to be done, shall ?rst make application to the Building Of?cial and obtain the required permit. Additionally, a separate permit shall be obtained for each building or structure. 19. Pursuant to PSZC section 91.00.09, it is a violation for any person to fail to comply with the provisions of the zoning code. Additionally, the zoning code declares that any building or structure erected or maintained or any use of property, contrary to the provisions of this Zoning Code shall be declared to be unlawful and a public nuisance. (PSZC Finally, this section authorizes the City to commence action including proceedings to enjoin and restrain any person from using any property in violation of the code. 20. The City has created residential set-back standards pursuant to PSZC section 92.01.03. This section creates setbacks based upon yard type for lots zoned For the front yard of a Property adjacent to a local/collector street the setback is 25? (PSZC For a side yard adjacent to a local/collector street the setback is 20? (PSZC Finally, for the interior portion ofa side yard the setback is 10? (PSZC 21. An unsafe structure is defined by section 116.1 of the PSBAC as any structure 5 COMPLAINT 1206537.I SMART ATTORNEYS AT LAW SPRADLIN COSTA MESA that is or becomes unsafe, or is otherwise dangerous to human life or to the public welfare shall be deemed an unsafe condition. Additionally, pursuant to section 116.1.1 of the PSBAC, all such unsafe buildings or structures are declared to be public nuisances and the Building Of?cial may institute any other appropriate action to prevent, restrain, correct or abate the violation. Finally pursuant to section 116.1.2 of the PSBAC, any work covered or concealed without inspection shall be considered to constitute an unsafe structure. 22. Failure to comply with any notice issued by the Building Of?cial is a violation of the code pursuant to PSBAC section 114.1.3. Additionally, is the violation is notice is not complied with the City is authorized to institute proceedings at law or in equity to restrain, correct or abate such violation pursuant to PSBAC section 1 14.3 23. It is unlawful for any person or entity to violate any provision or to fail to comply with any of the requirements of the PSMC. (See, PSMC 1.01.140) Further, any violation of any provision of the PSMC is deemed a public nuisance per se. (PSMC 1.01.165, 11.72.080, 11.72.090) Pursuant to PSMC sections 1.01.170 and 1.01.171, Public nuisances may be abated by the City in a civil action, including by way of a complaint for injunctive relief. (See, PSMC 1.01.170, 1.01.171). FIRST CAUSE OF ACTION (Abatement of Public Nuisance Against All Defendants) 24. The City incorporates by reference and restates fully as if set forth herein each and every allegation contained in paragraphs 1 through 23, inclusive, of the Complaint. 25. The conditions alleged above constitute ongoing violations of the Palm Springs Municipal Code and other applicable state and local building, zoning, housing, property maintenance, electrical, plumbing, mechanical, administrative, and health and safety codes, including, among others, those speci?cally identi?ed above. 26. Such violations constitute per se public nuisances pursuant to Palm Springs Municipal Code section 1.01.165. 27. The City brings this cause of action pursuant to sections 1.01.165, 1.01.171, 1.01.240, 1.06.080, and 8.04.310 of the Palm Springs Municipal Code, section 91.00.09 of 6 1206537.] SPRADLLV SMART ATTORNEYS AT LAW COSTA MESA the Palm Springs Zoning Code, section 731 of the California Code of Civil Procedure, and sections 3479 and 3480 of the California Civil Code to abate a public nuisance. 28. Currently, and at all times herein mentioned, Defendants, and each of them, have been directly or indirectly using the Property such that it is a public nuisance within the meaning of California Civil Code section 3479, either as owner, lessee, agent or manager exercising control over the Property. This conduct also renders the Property a public nuisance within the meaning of Palm Springs Municipal Code section 1.01.165, and Palm Springs Zoning Code section This nuisance affects the entire neighborhood and community of the City of Palm Springs, California and thereby constitutes a public nuisance pursuant to California Civil Code section 3480. Unless restrained by order of the Court, Defendants, and each of them, will continue to use the Property, or permit the use of the Property. in a manner constituting a public nuisance. 29. Unless Defendants are perpetually enjoined by an order of this Court from using this Property as a public nuisance, the surrounding neighborhood, and at the same time, the entire community of the City of Palm Springs, will suffer irreparable injury and damage. 30. The City has no adequate remedy at law other than to seek the injunctive relief sought herein. 31. The City seeks a temporary restraining order, preliminary injunction, and permanent injunction prohibiting Defendants from continuing to violate the Palm Springs Municipal Code and the Palm Springs Zoning Code, and thereby requiring Defendants to abate any and all public nuisances at the Property. The City further requests that the injunction prohibit Defendants, and each of them, from operating the Property in violation of the PSMC. Finally, the City requests that the preliminary and permanent injunction authorize the City to abate the nuisance if Defendants fail to immediately comply with the provisions of the injunction upon issuance. 32. Unless the requested injunctive relief is issued as sought, the City and its residents will be irreparably injured and damaged in that the manner in which the Defendants 7 COMPLAINT 12065371 l??II?ll??I?lt?l 8: SMART ATTORNEYS AT LAW COSTA MESA SPRADLIN Ixare presently maintaining and using the Property constitutes a public nuisance and that the public interest, convenience and necessity require that the provisions of the State of California and City land use and zoning regulations be fairly, thoroughly and evenly enforced throughout the City. SECOND CAUSE OF ACTION (Civil Penalties Against All Defendants) 33. The City incorporates by reference and restates as if fully set forth herein each and every allegation contained in paragraphs 1 through 32, inclusive, of the Complaint. 34. The City brings this cause of action pursuant to section 1.01 240(2) of the Palm Springs Municipal Code. Palm Springs Municipal Code section l.01.240(2) states: In addition to all other remedies. the city may bring a civil action to enforce the provisions of this code, in which a court may impose the following remedies: $ch (2) Civil penalties in an amount not to exceed ?ve hundred dollars per violation for each day, payable to the city, against any person who commits, continues, operates, allows or maintains any violation of any provision of this code; 35. Currently, and at all times herein mentioned, Defendants have been directly or indirectly using or permitting the use of the Property as a public nuisance in violation of Palm Springs Municipal Code sections 1.01.165 and 8.04.310. 36. Defendants have been in violation of these sections since, at least, June 9, 2016, through the present. The City requests that Defendants be assessed civil penalties in an amount not to exceed ?ve hundred dollars ($500) per violation, per day, for each day Defendants have used or permitted the use of the Property as a public nuisance. 8 COMPLAINT 12065311 WOODRUFF. SPRADLIN SMART ATTORNEYS AT LAW COSTA MESA PRAYER Wherefore, the City prays that the court order, adjudicate and decree as follows: AS TO THE FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS 1. For a temporary restraining order, preliminary injunction, and permanent injunction enjoining and restraining Defendants and each and all of their agents, representatives, assigns, and all persons acting in concert with them, from permitting subjects other than Defendant Irwin and/or any licensed contractor from entering the Property until such time that both the tall unsupported wall display which were installed in the back yard adjacent to the main house as well as the platforms and in?atable decorations on the roof are either removed or properly permitted as required under the PSMC. 2. For a preliminary and permanent injunction enjoining and restraining Defendants and each and all of their agents, representatives, assigns, and all persons acting in concert with them, from maintaining the Property in violation of the Palm Springs Municipal Code and all applicable state and local building, zoning, housing, property maintenance, electrical, plumbing, mechanical, administrative and health and safety codes. 3. For a preliminary and permanent injunction stating that if Defendants fail to complete the work required to correct all code violations at the Property and to bring the Property in compliance with in compliance with the California Health Safety Code, the Palm Springs Municipal Code and all applicable state and local building, zoning, housing, property maintenance, electrical, plumbing, mechanical, administrative and health and safety codes as ordered by the Court, then upon further application to the court by Plaintiff, the Court will issue an order that Plaintiff be permitted to abate or correct such violations at Defendants? expense and/or the Court will appoint a receiver to manage the Property and correct such violations. 4. That should the City be required to commence any legal action to enforce the terms of the temporary restraining order and preliminary injunction, Defendants, and each of them, or their successors or assigns, shall be liable to the City for all costs, including reasonable attorney?s fees, incurred by the City by reason thereof; and 9 COMPLAINT 120653?. WOODRUFF. SPRADLIN 8. SMART ATTORNEYS AT LAW COSTA MESA 5. That the City be granted such other and further relief as the Court may deem just and proper. AS TO THE SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS 6. That Defendants be assessed civil penalties in an amount not exceeding ?ve hundred dollars ($500) per violation for each day the Property was in violation of the Palm Springs Municipal Code pursuant to Palm Springs Municipal Code section 1.01.2400); and 7. That the City be granted such other and further relief as the Court may deem just and proper. DATED: December 9, 2016 WOODRUFF. SPRADLIN SMART, APC [206537] 74/ M. MCEWEN LAS HUTCHINS Attorneys for Plaintiff CITY OF PALM SPRINGS, a Municipal Corporation 10 COMPLAINT