City of San Clemente, a California municipal corporation vs. Mark R. Middlebrook and Fadia K. Middlebrook

Plaintiff does not oppose the motion as to Item nos. 5 and 9 and, thus, concedes the issue. (See, e.g., DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 566 [“By failing to argue the contrary, plaintiffs concede this issue”]; Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 529 [“failure to address the threshold question ... effectively concedes that issue and renders its remaining arguments moot”; Glendale Redevelopment Agency v. Parks (1993) 18 Cal.App.4th 1409, 1424 [issue is impliedly conceded by failing to address it].)

The court hereby TAXES $3,144.31 of the costs claimed in Items 5 and 9.

Item 6 (Transmitting, Filing, and Serving of Record, Briefs, and Other Papers)

Plaintiff claims $1,217.10 in this category.

Defendant challenges all but $200.60 in claimed costs as unrelated to the transmission, filing, and service of appellate papers.

Plaintiff does not oppose the motion as to Item 6, thereby conceding the issue. (See, e.g., DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 566.)

The court hereby TAXES $1,016.50 in costs claimed in Item 6.

In sum, Plaintiff SHALL RECOVER $5,924.42 in appellate costs.

Plaintiff to give notice. 10 City of San Plaintiff City of San Clemente’s Motion for Appointment of a Receiver is CONTINUED to Clemente, December 17, 2026 at 01:30 PM in Department C10. a California municipal corporation Judicial Notice: The City’s Request for Judicial Notice is GRANTED as to Nos. 1–3, 5–6, 9, vs. Mark R. 17, and 18; and DENIED as to Nos. 4, 7–8, and 10–16. Middlebroo k and Motion for Receivership: The City moves for an order: Fadia K. Middlebroo k, Trustees 1. Declaring the conditions on the parcel of real property known as 421 Via of the Alegre, San Clemente, California 92672, Assessor’s Parcel Number (“APN”) 691- Mark And F 272-18 (“Subject Property”) are substandard, violate State and local laws and adia that such violations are so extensive and of such a nature that the health and Middlebroo k safety of the property’s owner, residents, neighbors, community, the public, Family And and any occupants is substantially and imminently endangered.

Special 2. Appointing Richardson Griswold (“Receiver”) as the Court’s receiver over Neess the Subject Property pursuant to Health and Safety Code (“HSC”) section Trust Of 17980.7, subdivision (c). 2012 3. Granting Receiver the authority to manage and oversee the rehabilitation of the Subject Property pursuant to HSC section 17980.7, subdivision (c)(4) and Code of Civil Procedure (“CCP”) section 568.

4. Authorizing Receiver to secure funding for the receivership estate through the issuance of receiver’s certificates that may be recorded as super-priority liens on the Subject Property pursuant to HSC section 17980.7, subdivision (c), jurisprudence, and equity.

5. Enjoining Defendant, including agents, assigns, representatives, or other authorized entities or persons acting on their behalf including but not limited to, Owner, Fadia K. Middlebrook, and any other interested parties, from interfering with Receiver in the operation of the Subject Property pursuant to HSC section 17980.7, subdivision (c)(3).

6. Enjoining Defendant, including agents, assigns, representatives, or other authorized entities or persons acting on their behalf including but not limited to, Owner, Fadia K. Middlebrook, and any interested party, from encumbering or transferring any interest in the Subject Property pursuant to HSC section 17980.7, subdivision (c)(3).

7. Enjoining Defendant, including agents, assigns, representatives, or other authorized entities or persons acting on their behalf including but not limited to, Owner, Fadia K. Middlebrook, and any interested party, from allowing or maintaining nuisances on the Subject Property, and/or violations of multiple provisions of law, including, but not limited to, the California Health and Safety Code (“HSC”), California Building Code (“CBC”), California Fire Code (“CFC”), California Electrical Code (“CEC”), California Plumbing Code (“CPC”), California Existing Building Code (“CEBC”), International Property Maintenance Code (“IPMC”), Uniform Code for the Abatement of Dangerous Buildings (“UCADB”), and the San Clemente Municipal Code (“SCMC”) and other applicable laws.

8. Authorizing the recovery of the City’s costs, expenses, fees, and attorneys’ fees out of the receivership estate, to be secured as a super-priority lien on the Subject Property the same as all other receiver’s certificates, as authorized by HSC section 17980.7, subdivision (c)(4)(G), (c)(11), and (d)(1), jurisprudence, and equity.

A.

Legal Standard

Under Health and Safety Code section 17980, enforcement agencies may institute proceedings to abate nuisances or building standards violations. “If a building is constructed, altered, converted, or maintained in violation of any ... order or notice that gives a reasonable time to correct that violation issued by an enforcement agency pursuant to this part... or if a nuisance exists in a building or upon the lot on which it is situated, the enforcement agency shall, after 30 days' notice to abate the nuisance or violation, or a notice to abate with a shorter period of time if deemed necessary... institute appropriate action or proceeding to prevent, restrain, correct, or abate the violation or nuisance.” (Health & Saf. Code, § 17980, subd. (a).)

Under section 17980.6, if “the violations are so extensive and of such a nature that the health and safety of residents or the public is substantially endangered, the enforcement agency may issue an order or notice to repair or abate... by both posting a copy of the order or notice in a conspicuous place on the property and by first-class mail... or by

posting a copy of the order or notice in a conspicuous place on the property and in a prominent place on each affected residential unit...”

Under section 17980.7, if the owner fails to comply within a reasonable time with the terms of the order or notice to repair or abate, “[t]he enforcement agency . . . may seek and the court may order, the appointment of a receiver for the substandard building pursuant to this subdivision.” (Health & Saf. Code, § 17980.7, subd. (c).)

If a receiver is sought, the court (1) “shall consider whether the owner has been afforded a reasonable opportunity to correct the conditions cited in the notice of violation”; and (2) “shall not appoint any person as a receiver unless the person has demonstrated to the court their capacity and expertise to develop and supervise a viable financial and construction plan for the satisfactory rehabilitation of the building.” (Health & Saf. Code, § 17980.7, subd. (c)(1)-(2); see also City of Desert Hot Springs v. Valenti (2019) 43 Cal.App.5th 788, 794.)

Before filing a petition for appointment of a receiver, the enforcement agency must provide at least three days’ notice to persons with a recorded interest in the property in the manner prescribed by section 17980.7, subdivision (c). Section 17980.7 also preserves an owner’s procedural due process rights, including notice of the claimed violations and an adequate and reasonable period of time to comply. (Health & Saf. Code, § 17980.7, subd. (c)(14).)

If a receiver is appointed, the owner of the substandard building “shall be enjoined from collecting rents from the tenants, interfering with the receiver in the operation of the substandard building, and encumbering or transferring the substandard building or real property upon which the building is situated.” (Health & Saf. Code, § 17980.7, subd. (c)(3).)

Unless the court orders otherwise, the receiver appointed “shall have all of the following powers and duties” in the following order of priority:

(A) To take full and complete control of the substandard property. (B) To manage the substandard building and pay expenses of the operation of the substandard building and real property upon which the building is located, including taxes, insurance, utilities, general maintenance, and debt secured by an interest in the real property. (C) To secure a cost estimate and construction plan from a licensed contractor for the repairs necessary to correct the conditions cited in the notice of violation. (D) To enter into contracts and employ a licensed contractor as necessary to correct the conditions cited in the notice of violation. (E) To collect all rents and income from the substandard building. (F) To use all rents and income from the substandard building to pay for the cost of rehabilitation and repairs determined by the court as necessary to correct the conditions cited in the notice of violation. (G) To borrow funds to pay for repairs necessary to correct the conditions cited in the notice of violation and to borrow funds to pay for any relocation benefits authorized 34

by paragraph (6) and, with court approval, secure that debt and any moneys owed to the enforcement agency or the receiver for services performed pursuant to this article with a lien on the real property upon which the substandard building is located. The lien shall be recorded in the county recorder's office in the county within which the building is located. (H) To exercise the powers granted to receivers under Section 568 of the Code of Civil Procedure.

(Health & Saf. Code, § 17980.7, subd. (c)(4)(A)-(H).)

The receiver is “entitled to the same fees, commissions, and necessary expenses as receivers in actions to foreclose mortgages.” (Health & Saf. Code, § 17980.7, subd. (c)(5).) Upon the request of the receiver, “a court may require the owner of the property to pay all unrecovered costs associated with the receivership in addition to any other remedy authorized by law.” (Health & Saf. Code, § 17980.7, subd. (c)(15).) Further, the prevailing party in an action pursuant to section 17980.7 “shall be entitled to reasonable attorney's fees and court costs as may be fixed by the court.” (Health & Saf. Code, § 17980.7, subd. (c)(11).)

An order appointing a receiver is reviewed for abuse of discretion. (City of Crescent City v. Reddy (2017) 9 Cal.App.5th 458, 466 (“Reddy”).) “An abuse of discretion is demonstrated if the court's decision was not supported by substantial evidence or the court applied an improper legal standard or otherwise based its determination on an error of law. [Citation.]” (Ibid.) While in other contexts the appointment of a receiver is considered a drastic remedy that should not be used unless other less intrusive remedies are inadequate or unavailable (see Medipro Medical Staffing LLC v.

Certified Nursing Registry, Inc. (2021) 60 Cal.App.5th 622, 628), “Health and Safety Code section 17980.7 contains no such requirement. The Legislature presumably concluded that uncorrected substandard building conditions present a sufficient danger to justify appointment of a receiver without regard to less invasive alternatives. [Citations.]” (Reddy, supra, 9 Cal.App.5th at p. 467.)

B.

Analysis

The City submits evidence that the Notice and Order to Repair or Abate was issued in August 2025, that the cited conditions remain uncorrected, that the required prefiling notice was provided, and that the proposed receiver is qualified. (Kurtz Decl., ¶¶ 17, 20– 26; Ferguson Decl., ¶ 12; Atamian Decl., ¶¶ 12, 19–20; Nelson Decl., ¶ 11; Appendix of Exhibits, Exs. 9, 11–17; Griswold Decl., ¶¶ 1–6, Ex. 1.) The City also submits supplemental evidence that the property continued to deteriorate after the motion was filed. (Kurtz Supp. Decl., ¶¶ 5–10, Exs. 19–23.)

Defendant Fadia K. Middlebrook (“Defendant”) opposes appointment of a receiver and, alternatively, requests a 90-day continuance. Defendant argues the motion should be denied because the conservator now has the authority and resources to rehabilitate the property, Defendant was not previously afforded a meaningful opportunity to cure, and the City’s notice and proposed receiver are deficient.

The record establishes that Tabita Cesario was appointed temporary conservator in January 2026 and was authorized by the Probate Court to address immediate remediation of the property. (Plaintiff’s RJN, Ex. 18.) Defendant now represents that Cesario was appointed general conservator in August 2026 and thereafter received expanded authority and funding to undertake rehabilitation. Those asserted August 2026 changes, however, are not supported by a declaration or the subsequent Probate Court orders in the present record.

Moreover, the reasonable-opportunity inquiry under section 17980.7 is measured from the notice or order issued pursuant to section 17980.6. (Health & Saf. Code, § 17980.7, subds. (c), (c)(1); Reddy, supra, 9 Cal.App.5th at p. 466.) Nor is the Court required to consider whether a less intrusive remedy is available before appointing a receiver. (Reddy, supra, 9 Cal.App.5th at p. 467.)

Even so, a 30-day continuance appears reasonable under the circumstances.

The asserted August 2026 expansion of the conservator’s authority and access to funds, if established, could constitute a material change in Defendant’s practical ability to rehabilitate the property. A limited continuance would allow the Court to consider a current evidentiary record concerning the conservator’s authority, available funding, and actual remediation efforts before determining whether to impose a receivership, while preserving the City’s request if the violations remain unabated.

Accordingly, the motion is CONTINUED.

As a condition of the continuance, Defendant shall file, within 10 calendar days of this order, competent evidence establishing Tabita Cesario’s appointment as general conservator, the scope of her authority to rehabilitate the property, and the availability of funds for that purpose.

During the continuance, Defendant is ordered to: (1) obtain a licensed contractor’s assessment and scope of work; (2) retain an engineer and architect as needed; (3) apply for all permits required by the City’s Notice and Order; (4) begin permitted construction and remediation; (5) permit the City reasonable access, upon reasonable notice, to inspect the property and verify remediation and compliance; and (6) file and serve, at least 9 court days before the continued hearing, a written rehabilitation plan and construction schedule, supported by declarations and photographs showing the work completed and progress toward compliance.

The City may file and serve a response to Defendant’s update at least 5 court days before the continued hearing.

Case Management Conference is continued to December 17, 2026 at 09:00 AM.

The City to give notice.

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