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    19.    
City Council Regular
Meeting Date: 12/12/2017  

SUBJECT:
ORDINANCE AMENDMENT REGARDING RECOVERY OF ATTORNEYS' FEES IN NUISANCE ABATEMENT ACTIONS
RECOMMENDATION:
Introduce an Ordinance entitled:  AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHINO HILLS, CALIFORNIA AMENDING THE CHINO HILLS MUNICIPAL CODE TITLE 1 (GENERAL PROVISIONS) TO AMEND SECTION 1.36.050 - (NUISANCES - RECOVERY OF ABATEMENT EXPENSES) AND TITLE 8 (HEALTH AND SAFETY) TO AMEND SECTION 8.12.140 - (ALTERNATE ACTIONS) TO PROVIDE FOR AWARDING ATTORNEYS' FEES TO THE PREVAILING PARTY IN NUISANCE ABATEMENT ACTIONS AND PLACING LIMITATIONS ON SUCH FEES AND DETERMINING THAT THE MUNICIPAL CODE AMENDMENT IS EXEMPT FROM REVIEW UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT.
BACKGROUND/ANALYSIS:
Attorneys' fees may be collected when authorized by contract, statute or law.  This includes City Ordinances, meaning a City may collect attorneys' fees if it has enacted an ordinance authorizing their award.  As a result, a City by Ordinance may authorize the collection of attorneys' fees.  However, in the context of nuisance abatement, the State has limited the form an attorneys' fees ordinance can take.  Specifically, if the ordinance provides for the recovery of attorneys' fees: (1) only a prevailing party attorneys' fees ordinance are allowed (thus an ordinance that would only allow the City to collect is not allowed); but (2) the ordinance may limit the prevailing party attorneys' fees award to cases where the City, upon initiating the action, seeks such fees; and (3) the ordinance may also limit any recovery of attorneys' fees to the amount of the City’s own attorneys' fees in the case. Civil Code section 38773.5.  Currently, the Chino Hills Municipal Code (CHMC) only allows attorneys' fees to be collected by the City in a nuisance abatement case.  As a court is unlikely to enforce this provision of the CHMC in light of Civil Code Section 38773.5, it is recommended that the City amend the CHMC so that the prevailing party, rather than only the City, may recover such fees.
 
City staff further recommends that this amendment limit collection of attorneys' fees to cases where the City seeks attorneys’ fees at the initiation of the action or proceedings and also limits the attorneys’ fees collected to the cost of the City’s attorneys’ fees in the action or proceeding.  Amending the CHMC in this manner will give the City the option to seek attorneys’ fees in nuisance abatement cases, but limit the cases where such fees would be available to another party.  It would also limit the amount of these fees to the cost of the City’s attorneys’ fees incurred in the action.
 
ENVIRONMENTAL (CEQA) REVIEW:
This proposed action is exempt from review under the California Environmental Quality Act (California Public Resources Code §§ 21000, et seq.; “CEQA”) and CEQA regulations (14 California Code Regulations §§15000, et. seq.) because it does not involve any commitment to a specific project which could result in a potentially significant physical impact on the environment; and constitutes an organizational or administrative activity that will not result in direct or indirect physical changes in the environment. Accordingly, this action does not constitute a “project” that requires environmental review (see specifically 14 CCR § 15378(b)(4-5)).
FISCAL IMPACT:
There is no immediate financial impact to adopting this ordinance, but in nuisance abatement and code enforcement actions, if this amendment is adopted the City could recover attorneys’ fees if successful, or, alternatively, be forced to pay attorneys’ fees to the prevailing party if the City loses the case.
REVIEWED BY OTHERS:
This agenda item has been reviewed by the Finance Director and the Assistant City Manager.
 
Attachments
Ordinance
Comp Shows Rec Amdmts

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