CITY ATTORNEY DENNIS HERRERA

NEWS RELEASE
FOR IMMEDIATE RELEASE TUESDAY, JANUARY 3, 2006 CONTACT: MATT DORSEY PHONE: (415) 554-4662

City’s Appellate Court Victory Over Jen Writes Case Law to Better Protect Tenants, Residents Statewide
Legal Fees and Costs to City Likely to Exceed $1 Million, As Published Decision Sets Precedent to Include Unoccupied Buildings For Purposes of Fee Awards
SAN FRANCISCO (Jan. 3, 2006)—City Attorney Dennis Herrera today announced that an appeal by one of San Francisco’s most notorious building code scofflaws has been rejected by the California Court of Appeal, affirming a trial court ruling from April 2004 that local engineer and permit expediter Jimmy Jen must pay nearly $840,000 in attorneys’ fees and costs to the City for unlawful business practices and repeated violations of public nuisance and state housing laws. In addition to attorneys’ fees and costs from the trial court case, the appellate court ruled that the City is similarly entitled to fees and costs incurred from Jen’s appeal, remanding the case to the trial court for a final determination of a total award that is almost certain to exceed $1 million. Jen based his appeal of the original fee and cost award primarily on his contention that the property at the heart of the underlying case was unoccupied at the time of the violations, and that relevant provisions of state law that allow for such awards were therefore inapplicable. The City Attorney argued in response that the legislature clearly contemplated residents in adjacent buildings within the code’s intent, and that construing the law so narrowly as to permit awards only for violations in inhabited buildings would lead to absurd and potentially dangerous consequences. In a published decision that establishes case law in California where none previously existed, the Court of Appeal agreed with the City in holding that its broad interpretation reflects the Legislature’s judgment “that one of the most important and fundamental duties a city can perform is to protect its residents from unsafe housing conditions.” The three-judge panel concurred in the Dec. 29 ruling, adding:
In these days of limited budgets, enforcement agencies understandably focus their efforts on actions where they are permitted by statute to recover their fees and costs. If we were to hold that reimbursement of fees and costs is only permitted when a building is inhabited, it is likely that enforcement agencies would shift their efforts to inhabited structures. However, delaying enforcement efforts until a building is inhabited, rather than as here, pursuing an action while a residence is being built, would only put more people directly at risk. We will not countenance such an absurd result.

“More than just a victory for San Francisco, this decision establishes landmark case law that will better protect tenants and responsible homeowners statewide,” said City Attorney Dennis Herrera. “This sternly-worded decision sends a forceful message to those who would endanger the health and safety of tenants and neighboring residents that law-breaking doesn’t pay—not in San Francisco, not in California.”

[MORE]

CITY ATTORNEY DENNIS HERRERA PAGE 2 OF 2

NEWS RELEASE JANUARY 3, 2006

The City’s case dates back to October 2000, when the City Attorney’s Code Enforcement and Resident Protection Team took action against Jen for illegal construction and other illegal conduct at his 61 Tucker Avenue property in San Francisco. The City’s suit was later amended to include illegal construction and illegal conduct at a 1950 Stockton Street property in San Francisco. After a lengthy five-week trial, San Francisco Superior Court Judge Ellen Chaitin found Jen liable for five of the six counts against him, including violation of Health and Safety Codes and Unlawful Business Practices. In addition to the $837,604.05 in attorneys’ fees and costs he was ordered to pay to the City—which would become the subject of his later appeal—Jen was ordered to pay $150,000 in civil penalties. At the conclusion of the liability phase, the Court found that Jen had submitted false and misleading applications for work he performed at the Tucker Avenue and Stockton Street properties. Briefing and oral arguments for the City before the appellate court were handled principally by Deputy City Attorneys Curtis Christy-Cirillo and Jerry Threet, under the direction of Code Enforcement and Resident Protection Team Leader Rose-Ellen H. Fairgrieve. Additional assistance in the case was provided by Chief Trial Deputy Jo Hoeper and Deputy City Attorneys Owen Clements, Jim Emery, Margarita Gutierrez, Tom Lakritz, Neli Palma and Max Peltz. Shawn Kelly served as lead investigator in the case. Additional legal support was provided by Cathy McCarthy and Joan Nettler. The California State Association of Counties submitted an amicus curiae brief on our behalf in this case, further demonstrating the importance of the underlying issues to local code enforcement agencies statewide. The case is City and County of San Francisco v. Jimmy Jen, California Court of Appeal, First Appellate District, Division Five, Case No. A107911 (San Francisco Superior Court Number 315-739). Decision filed Dec. 29, 2005. ###

Filed 12/29/05

CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

CITY AND COUNTY OF SAN FRANCISCO et al., A107911 Plaintiffs and Respondents, v. JIMMY JEN, Defendant and Appellant. ______________________________________/ In this case, we must analyze the scope of remedial provisions of the Health and Safety Code available to public agencies charged with enforcing residential building codes. Specifically, we will interpret remedial language contained in Health and Safety Code section 17980.7 broadly so the section can be used to protect a maximum number of residents, reflecting the Legislature’s judgment that one of the most important and fundamental duties a city can perform is to protect its residents from unsafe housing conditions. Appellant also contends the factual foundation for the award of fees is unsupported by substantial evidence, and he asserts procedural errors. We reject these arguments in the unpublished portion of our opinion and affirm the judgment. (San Francisco Super. Ct. No. 315739)

*

Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part II.B. and C. 1

I. FACTUAL AND PROCEDURAL BACKGROUND Appellant Jimmy Jen is a licensed civil engineer. In June 1999, he purchased a single-family home located on Tucker Avenue in San Francisco. The home was dilapidated and Jen planned to renovate it. However, Jen’s prior experiences with the Department of Building Inspection (DBI) led him to believe some department personnel were prejudiced against him. Therefore, Jen misrepresented the character and extent of the work he intended to perform in his request for a building permit. Jen stated the property was owned by Bob McCurn, that he only intended to perform minor dry rot repair around the garage, and that no electrical or plumbing work would be performed. He estimated the cost of the work to be $2,500. In fact, Jen added a two-room extension to the existing structure, added a second floor addition, altered the existing basement to create four habitable rooms, a laundry room and a garage, constructed new decks on the roof and at the basement level, and installed extensive new plumbing and electrical wiring throughout the house. The DBI learned about the unauthorized renovations and it posted a stop-work notice at the site. Later DBI issued a notice of violation to Jen. Jen ignored both notices and continued construction. The DBI posted two more stop-work notices at the Tucker Avenue property. In addition, the DBI issued a second notice of violation that ordered Jen to stop working and to obtain the necessary building permits within 30 days. Once again Jen failed to comply. In February 2000, Jen submitted another application for a building permit. Again, he misrepresented the characteristics of the property and the nature of the work that he had and would perform. Later that same month, the DBI conducted a public abatement hearing. At the conclusion of the hearing, the DBI issued an abatement order that declared the Tucker Avenue property to be a public nuisance. The order gave Jen 30 days to file revised plans to either remove or legalize all the work that had been performed.

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Again, Jen did not comply. He failed to file revised plans within the required 30day period. When Jen did file revised plans in late April 2000, he again misrepresented the nature of the property and what portions of the structure were newly constructed. In August 2000, the DBI sent Jen’s file to the Planning Department to determine whether the additions to the property could remain. The Planning Department decided that the entire three-story portion of the structure must be demolished and that Jen must obtain a new permit to rebuild it. In the fall of 2000 the City and County of San Francisco filed the complaint that is at issue in the current appeal.1 It alleged causes of action for public nuisance, violation of the state housing law, (Health & Saf. Code, § 17910 et seq.)2 failure to comply with an abatement order, and unlawful business practices. (Bus. & Prof. Code, § 17200 et seq.) On November 27, 2000, the court issued a preliminary injunction against Jen. In December 2000, Jen submitted revised plans to the DBI and the Planning Department and obtained a permit to demolish and then rebuild the rear portion of the Tucker Avenue property. On April 27, 2001, a DBI inspector conducted what was supposed to be the final inspection of the building’s foundation and framing. He found that neither the foundation nor framing had been exposed properly to permit inspection. In January 2003, the suit against Jen came to trial. At the conclusion of the trial, (and after extensive posttrial proceedings that we will discuss in greater detail below), the court ruled Jen was liable under all four causes of action that had been alleged. The court ordered Jen to pay a $150,000 civil fine and ruled Jen must pay San Francisco $837,604.05 in attorney fees and costs under section 17980.7. Jen then filed this appeal challenging the fee award.

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Jen has not provided us with a copy of the complaint. Unless otherwise indicated, all further section references will be to the Health and Safety Code. 3

II. DISCUSSION3 A. Statutory Construction Jen contends the trial court interpreted section 17980.7 incorrectly when it awarded attorney fees to San Francisco. To put this argument in context, we consider the legislative scheme related to housing code enforcement. Many aspects of residential building standards in California are governed by the State Housing Law. (See § 17910 et seq.) The law covers a broad array of subjects ranging from requirements for bathroom fixtures, (§ 17921.3) to permissible materials for plumbing pipe, (§ 17921.7) to standards for garage door springs. (§ 17927.) More relevant for present purposes, the law includes detailed enforcement provisions that describe how unsafe conditions in residential buildings may be identified and corrected. Specifically, section 17980.6 states: “If any building is maintained in a manner that violates any provisions of this part . . . and 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 pursuant to this part.” Section 17980.7 describes the penalties that may be imposed on a property owner who fails to comply with a notice to repair or abate issued pursuant to section 17980.6. In particular, section 17980.7, subdivision (d) states, “If the court finds that a building is in a condition which substantially endangers the health and safety of residents pursuant to Section 17980.6, upon the entry of any order or judgment, the court shall do all of the following: [¶] (1) Order the owner to pay all reasonable and actual costs of the enforcement agency including, but not limited to, inspection costs, investigation costs, enforcement costs, attorney fees or costs, and all costs of prosecution.”

On August 15, 2005, while this appeal was being briefed, San Francisco filed a request asking us to take judicial notice of the legislative history of sections 17980.6 and 17980.7. We deferred ruling on the request until the merits of the appeal. (See People v. Preslie (1977) 70 Cal.App.3d 486, 493-494.) Having now considered the unopposed request, we grant it. 4

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The trial court in this case ruled that Jen had failed to maintain his building as required by the State Housing Law, and further, that Jen had failed to comply with a lawful abatement order. In addition, the court ruled that one of the violations proved, that Jen’s building lacked fire blocks, seriously endangered the residents of the neighborhood in which the building was located: “The lack of fire blocks was injurious to health, interfered with the comfortable enjoyment of property, and was life threatening to a considerable number of persons and the neighborhood. Defendant Jen created a serious fire hazard by not installing fire blocks on the property. Fire blocks prevent the spread of fire from floor to floor. Fire is life threatening and can easily spread from one residence to another. The Tucker Avenue neighborhood had homes that were one residence to another.” Accordingly, the court ruled Jen must pay San Francisco $837,604.05 in attorney fees and costs it had incurred pursuing the enforcement action. Jen now contends the trial court interpreted section 17980.7, subdivision (d) incorrectly. Citing evidence that shows the Tucker Avenue property was never occupied while it was being renovated, Jen contends the section “does not authorize a court to impose attorney fees incurred as the result of abatement efforts against an uninhabited building.” Jen’s argument presents an issue of statutory construction that we decide de novo on appeal. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699.) The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. (In re Marriage of Harris (2004) 34 Cal.4th 210, 221.) “We begin by examining the statutory language, giving the words their usual and ordinary meaning. [Citation.] If there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs. [Citation.] If, however, the statutory terms are ambiguous, then we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. [Citation.] In such circumstances, we ‘select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an 5

interpretation that would lead to absurd consequences.’ [Citation.]” (Day v. City of Fontana (2001) 25 Cal.4th 268, 272.) Applying these principles, we conclude the attorney fee award was authorized by section 17980.7. Section 17980.7, subdivision (d) mandates the payment of all reasonable and actual costs of the enforcement agency and costs of prosecution, “If the court finds that a building is in a condition which substantially endangers the health and safety of residents . . . .” The term “residents” is not defined; however the ordinary definition of the word is “one who resides in a place.” (Webster’s Collegiate Dict. (10th ed. 2001) p. 993.) Those who live in a building and those who live nearby both reside “in a place” that could be “substantially endangere[d]” by unsafe conditions. Therefore, the plain meaning of the statute would seem to authorize an award of fees even if a building is not occupied. This conclusion is supported by other rules of construction. “When a statute omits a provision which another statute embracing a similar subject includes, a different legislative intent for each statute is indicated. [Citations.]” (In re Khalid H. (1992) 6 Cal.App.4th 733, 736.) Here, another section of the State Housing Law, section 17980, subdivision (a) states an enforcement agency may institute an action to correct or abate an unsafe building on less than 30 days notice if necessary “to prevent or remedy an immediate threat to the health and safety of the public or occupants of the structure . . . .” (Italics added.) The phrase we have italicized shows that when the Legislature intends to limit an enforcement action based on how the residents of a particular structure are affected, it knows how to do so. The fact that no limitation is included in section 17980.7, subdivision (d) is strong evidence that no such limitation was intended. To the extent section 17980.7, subdivision (d) is ambiguous, the conclusion we reach most clearly advances the goals of the State Housing Law. The obvious and stated purpose of section 17980.6 is to protect the health and safety of residents who might be substantially endangered by unsafe building conditions. In an urban area such as San Francisco, where many residences are constructed immediately adjacent to one another, conditions in one building can and do affect the residents of the buildings next door. 6

Construing the section 17980.7, subdivision (d) to permit an award of attorney fees when the residents of a nearby building are endangered fully supports this legislative goal. Conversely, construing section 17980.7, subdivision (d) so as to permit an award of fees only when a building is inhabited could lead to absurd results. Fee clauses such as the one contained in section 17980.7, subdivision (d) provide a powerful incentive for enforcement agencies to investigate and mitigate unsafe building conditions. In these days of limited budgets, enforcement agencies understandably focus their efforts on actions where they are permitted by statute to recover their fees and costs. If we were to hold that reimbursement of fees and costs is only permitted when a building is inhabited, it is likely that enforcement agencies would shift their efforts to inhabited structures. However, delaying enforcement efforts until a building is inhabited, rather than as here, pursuing an action while a residence is being built, would only put more people directly at risk. We will not countenance such an absurd result. We conclude the trial court correctly awarded attorney fees costs to San Francisco under section 17980.7, subdivision (d)(1) because the residents of homes near to Jen’s building were substantially endangered. None of the arguments Jen advances convince us a different conclusion is warranted. First, Jen notes that section 17980.6, authorizes an enforcement action when the “health and safety of residents or the public” (italics added), is substantially endangered, while section 17980.7, subdivision (d)(1) mandates an award of fees if “the health and safety of residents” is substantially endangered. Jen contends the omission of the words “or the public” from the latter statute was intentional and therefore, he reasons, it would be improper to award fees in this case based on a danger that was posed to “the public.” However, we do not hold an award of attorney fees was appropriate because the health and safety of “the public” was substantially endangered. Rather, we conclude fees were appropriate because, as the trial court held, Jen’s actions substantially endangered “residents” who lived near his building. Whether danger to “the public” at large would justify an award of fees is an issue we need not decide.

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Next, Jen contends it would be improper to interpret section 17980.7, subdivision (d) to permit an award of fees based on danger posed to nearby residents because such an interpretation “would result in improper over breadth.” We reject this argument because Jen has misconstrued the legal principle upon which his argument relies. The concept of overbreadth deals with statutes that are so broadly written that they punish both constitutionally protected conduct as well as acts that may validly be prohibited. (People v. Antoine (1996) 48 Cal.App.4th 489, 495; see also 7 Witkin, Summary of Cal. Law (10th ed. 2005) Constitutional Law, § 498, p. 577.) Neither section 17980.6 nor section 17980.7 punish conduct that is constitutionally protected.4 The statutes are not overbroad. Finally, Jen contends his argument is supported by language in an opinion issued by the Attorney General interpreting Welfare and Institutions Code section 5116. (See 61 Ops.Cal.Atty.Gen. 490 (1978).) However, the language the Attorney General was construing was deleted from the statute more than 25 years ago. (See Stats. 1978, ch. 891, § 5, pp. 2803-2804.) We conclude an Attorney General opinion interpreting a different and long-since amended statute is not persuasive here. We conclude the trial court properly awarded fees to San Francisco. B. Sufficiency of the Evidence Jen contends that even if attorney fees were statutorily permitted, the fees awarded in this case must be reversed because they are not supported by substantial evidence. The applicable standard of review is familiar. We must view the record in the light most favorable to the judgment to determine whether it is supported by substantial evidence. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.) Here, the trial court ruled Jen’s property substantially endangered the residents of the neighborhood in which it was located because it lacked fire blocks. That conclusion is amply supported by the record. Leo McFadden was a senior inspector in the code enforcement division of the DBI. He testified at trial that he visited Jen’s property in
4

Jen does cite one case in support of his argument. However, the citation is flawed and the case does not exist. 8

early 2001 and took photographs of the building’s framing. The relevant portion of his testimony is as follows: “Q. When you observed this part of the interior of 61 Tucker, did you notice anything missing? “A. Well, it lacks fire blocks. “Q. What are fire blocks? “A. Fire blocks are positioned to stop a fire from going up between a stud bay where it intersects with a roof, a floor or soffit. That’s it. “Q. And what does the fire block look like? “A. Well, it could be made – the code allows it to be made out of a two by four or double layers of sheetrock, but typically it’s the same thickness of the stud. The two by six in a two by six wall; or a two by four in a two by four wall. And it goes at the intersection of the wall and roof; or the wall and ceiling.” The evidence in this case also demonstrated that Jen’s building was located in an area where the houses are built adjacent to one another. The trial court could reasonably conclude the lack of fire blocks in Jen’s building was a safety hazard and that the omission substantially endangered the safety of residents who lived nearby. We conclude the court’s finding is supported by substantial evidence. Jen contends the evidence was insufficient because McFadden did not state precisely how many fire blocks were missing. He also complains that McFadden did not describe what section of the building code required fire blocks, or whether Jen was ever cited for the omission. We reject these arguments because they fail to take into account the controlling standard of review. Our power on appeal “‘begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the [judgment].’” (Western States Petroleum Assn. v. Superior Court, supra, 9 Cal.4th at p. 571, quoting Crawford v. Southern Pac. Co. (1935) 3 Cal.2d 427, 429.) Here, that standard has been met. The omissions Jen has identified are not relevant.

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C. Procedural Issues Jen contends the order awarding attorney fees must be reversed because the court committed two procedural errors. To put his argument into context, further background is necessary. The trial court issued a statement of decision at the conclusion of the liability phase of the trial. As is relevant here, the court ruled Jen’s building was not a public nuisance under Civil Code sections 3479 and 3480: “Plaintiff failed to submit any evidence that the construction of the addition was ‘injurious to health’ or was ‘offensive to the senses.’ The home was always vacant. The home met planning requirements in terms of its size and setbacks. The mere fact that it was constructed without all permits does not make it a public nuisance. Plaintiff failed to submit evidence that the construction at 61 Tucker interfered with the neighborhood’s enjoyment of their own homes. Plaintiff failed to submit evidence that the construction at 61 Tucker affected the surrounding neighborhood. In fact, there was evidence that a permit [might] have been granted to Jen had he gone through the process. This, on its face, militates against a finding the building could have been injurious to health or the senses in any legal sense.” The court issued a judgment that tracked this finding. It declined to rule Jen’s property was a public nuisance within the meaning of sections 3479 and 3480 of the Civil Code. Even though the court ruled Jen’s property did not adversely affect his neighbors’ property, the court ruled Jen was required to pay San Francisco’s attorney fees under section 17980.7. As we have discussed, fees may be awarded under that statute if a property is in such a condition that it “substantially endangers” residents. Jen noted the apparent inconsistency and he filed a motion for new trial (Code Civ. Proc., § 657), and a motion to vacate the judgment. (Code Civ. Proc., § 663.) Subsequently, Jen withdrew his motion for a new trial, leaving only the motion to vacate. He argued the attorney fee award must be reversed because it was inconsistent with the factual findings the court had made in its statement of decision.

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At the hearing on Jen’s motion, the court made clear that it took an expansive view of its powers to reconsider its decision: “Now, section 663 of the California Code of Civil Procedure allows the court to correct the judgment when an error has been made, and also allows the court to make any appropriate changes in the statement of decision; so if the court is convinced that it made an error of any type, it can go back and correct the statement of decision.” The court further explained that after reviewing the record, it gained a fuller appreciation for the testimony we have set forth about the lack of fire blocks at the building. Therefore, the court denied Jen’s motion to vacate, but issued a modified statement of decision. This time the court ruled Jen’s property was a nuisance and that the lack of fire blocks substantially endangered the safety of the residents of the neighborhood in which the house was located. The court also entered a new judgment; this time finding Jen’s property was a public nuisance within the meaning of the Civil Code. Jen now challenges the trial court’ ruling on two grounds. First he contends that when a party files a motion to vacate, the “court’s authority is limited to revising Judgment on behalf of the moving party who is aggrieved . . . .” According to Jen, the court lacked jurisdiction to enter a new judgment that was more favorable to a nonmoving party. Code of Civil Procedure section 663 states in part: “A judgment or decree, when based upon a decision by the court . . . may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: [¶] 1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected.” The statute states plainly that only a “party aggrieved” may file a motion to vacate and further limits the motion to the two grounds specified. The statute also prescribes a remedy for a meritorious motion. The court should “set aside and [vacate]” the judgment and “when the judgment is set aside, the statement of decision shall be amended and 11

corrected.” However, the statute does not state or imply that the judgment and statement of decision may only be modified in a way that would benefit the moving party. We may not, under the guise of construction rewrite the law to include a limitation that does not otherwise exist. (California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, 349.) Alternately, Jen contends the trial court erred procedurally because it reconsidered the factual basis for its decision in response to his motion to vacate. According to Jen, the court lacked the power to do so in response to his motion. Jen is correct to a certain extent. A motion to vacate has a relatively narrow purpose. As Witkin explains, “If the evidence supports the decision or verdict, it is the duty of the court to render judgment thereunder. If the court renders an erroneous judgment, this is reversible error, and the aggrieved party may obtain a reversal on appeal. But [Code of Civil Procedure section] 663 gives him a speedier and less expensive remedy for such an obvious and easily determinable error: He may move the trial court to correct its own erroneous judgment by amending the judgment to conform to the decision or verdict. [¶] A new trial in this situation would be pointless: The facts are correctly determined and need no reexamination. However, if the facts are not correctly determined, and the attack is on the decision, the aggrieved party should move for a new trial; on a motion under [Code of Civil Procedure section] 663, the court has no power to disturb a determination of fact.” (Italics added, 8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, § 148, p. 651.) However, as Witkin also explains, it is not uncommon for trial courts to confuse their power to grant a new trial under Code of Civil Procedure section 662, with their power to vacate a judgment under Code of Civil Procedure section 663. (8 Witkin, supra, Attack on Judgment in Trial Court, § 111, p. 615.) “To uphold the trial judge’s ruling, the appellate courts do not limit themselves to the language of the order, but analyze the subsequent proceedings. By this process, an order hopelessly inconsistent in form is rationalized and given effect under the appropriate statutory power.” (8 Witkin, supra, Attack on Judgment in Trial court, § 111, p. 615.) 12

The court applied these principles in Shapiro v. Prudential Property & Casualty Co. (1997) 52 Cal.App.4th 722 (Shapiro). There, after jurors returned a verdict that was unclear, the plaintiff filed a motion to vacate under Code of Civil Procedure section 663. The court declined to vacate the judgment but granted the plaintiff a partial new trial on the issue of damages. The Shapiro court ruled this was permissible: “when a party brings a timely posttrial motion, the trial court has broad discretion to determine the relief being requested.” (Shapiro, at p. 727.) In Gossman v. Gossman (1942) 52 Cal.App.2d 184, the plaintiff wife was granted a divorce and awarded some property. She filed a motion for new trial and a motion to vacate. The trial court denied the motion for new trial but granted the motion to vacate. The court then took additional evidence and increased the wife’s property award. The Gossman court ruled that the trial court had not committed any prejudicial error. “The record discloses that plaintiff’s motion for a new trial was denied and her motion under [Code of Civil Procedure] sections 663 and 663a was granted. But this does not mean that the order modifying and changing the judgment was not made pursuant to the authority vested in the trial court on a motion for new trial by the terms of section 662 of the Code of Civil Procedure . . . [¶] . . . [T]he court, on hearing plaintiff’s motions . . . evidently did reopen the case and receive further evidence or at least did reexamine the evidence before it--a procedure which it could not follow under sections 663 and 663a-[I]t becomes obvious that the court was proceeding under section 662 and that the third judgment is subject to the [new trial] provisions of Code of Civil Procedure section 657 and 659.” (Gossman, supra, 52 Cal.App.2d at pp. 198-199; see also Ramirez v. Moran (1988) 201 Cal.App.3d 431, 434-435; Gardner v. Rich Mfg. Co. (1945) 68 Cal.App.2d 725, 740-741.) Here, as in Shapiro, while Jen filed only a motion to vacate, it is permissible to evaluate it as a motion for new trial. And, as in Gossman, while the trial court purported to act under its power to vacate as set forth in Code of Civil Procedure section 663, it is apparent the court did in fact act under its power to grant a new trial under Code of Civil Procedure section 662. 13

Evaluated as a ruling on a motion for new trial, we find no error. A court ruling on a motion for new trial has broad powers. In a case that is tried without a jury, the court may “change or add to the statement of decision, modify the judgment, in whole or in part, [or] vacate the judgment, in whole or in part . . . .” The changes made here were well within the scope of the trial court’s broad discretion. III. DISPOSITION The judgment is affirmed. Because we have concluded San Francisco was entitled to receive its attorney fees and costs in the court below, it follows that San Francisco is entitled to recover its attorney fees and costs on appeal. (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.) We remand to the trial court so it can set the amount of award. _________________________ Jones, P.J.

We concur: ________________________ Stevens, J. ________________________ Simons, J.

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Trial court: Trial judge: Counsel for plaintiffs and respondents:

San Francisco Superior Court Hon. Ellen Chaitin

DENNIS J. HERRERA City Attorney JOANNE M. HOEPER Chief Trial Attorney ROSE-ELLEN H. FAIRGRIEVE CURTIS CHRISTY-CIRILLO JERRY THREET Deputy City Attorneys

JENNIFER B. HENNING, California State Association of Counties, as Amicus Curiae on behalf of plaintiffs and repondents Counsel for defendant and appellant: DAVID J. MILLSTEIN Millstein & Associates

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