currently facing over one million dollars of a cloud on his property that he purchased for one point six million dollars the city in its answering brief has five times used the statement in the pleadings that we submitted before this court that's going on before the state court and pointed out that mr foer said he disposed of the property at a lower purchase price now they don't connect it to a legal analysis but the insinuation by the way they say it is a either mr meccano knew of these fines or two that he quote bought with the taking built in which is by analogy some of the case law that doesn't apply to this situation which i will explain but i want to protesting the fines that were that's exactly right you are the fines have nothing to do with you other then other than whether or not they can be assessed against the property that's right except the problem is which is the which is the  supreme court said is you haven't a vaulting standing problem here meaning the assessments were assessed before mr mecum of the first one and then the second one right was put over on the property after mr mcneil purchased the prop and want to ask about the second but stick a stick with the state geisha obviously if the fines are thrown out then these accidents go away to correct that well that's the problem here mr if i were did put a footnote in in the case we cited it asking for that but they didn't join the riverside county what are we waiting for in your view i don't think it's a younger problem at this point which is what are we waiting for what ruling from the state court would help us dispose of this case you don't have one now because that first of all they didn't invalidate the find they disagree not going after him because they've been paid already so they're still on the books and there's nothing to say mr mechanism on them so let's get let's get back to your case and i want to understand procedurally how this works because i think for me it was confusing the city basically two assessments currently the assessments themselves are not a lien are they they are treated as a lien but they are not humid so so they just go on your property tax if you will that's right and then your property tax is not it can be reimposed that's right and that's why they have that exception in the state codes for the cost that say until it's delinquent a subsequent purchase is not on the hook because you wouldn't see it right in a title search or so what i'm trying to figure out is had were both of these assessments on tax on tax bills that your client received yes and did your client have the ability to protest those taxes no why not because the first one as the district court said was assessed when he was not the owner three months before a claim been assessed my question is you cut three months before he bought it it was assessed but he received a tax bill months later months later with that on it why couldn't he protest that tax bill well he did with and when they sent him the invoice for the second one which was shortly after that what he did was pay the actual taxes he owed and didn't pay to but i'm guessing a different question right there is a procedure under state law to protest a tax bill you get a property tax bill and you can go file a protest write your client got a tax bill that included this assessment could have protested that assessment in the process under which you protest tax bills well no one has you know explained what could be done with that with law i mean asking i don't know i mean you're talking about a state law says you may protest your tax bill and this is part of your tax bill why can't you protest well i'm what i'm asking you is when you say state law says that is there a time it in the first place right i'm just wondering what authority he would have tried to be guessing because you're talking about a lay person here and i'm trying to figure out you know what you're right the reason i'm asking why not raise the losses claim you say this was imposed and we never had a de villepin to fight about it and i'm saying why wasn't that attacked the time when you received the tax bill the appropriate time to go fight about it well i would say that you're right in terms of how but the question is how quickly should he have done that when a few mcvie months later he did try to write a letter and say wait a minute i'm not the the record owner and they said so what they didn't answer him and they just didn't cause a second one of the letters you know that don't relate to a process when there's a process established by the law and you send a letter to the wrong office you don't follow the procedure in the law you know what happens to those letters they go on the circular file there's an office set up to get the protest to get the letter and you don't follow that how's that going to help i mean that doesn't that doesn't mean that doesn't solve your problem well i mean i think in looking at who he sent a letter to write it was the city manager it was the people that he thought would be the people that he should reach but let me be at me relates to when you have two governors vetoing this kind of action and they say we're worried that there's not going to be due process that this will accrue because you know even if you look at wikipedia they say advil or in taxes are the worst and most difficult if you don't appear at the hearing the but on this one you're responding to the gentry standing on well say there may be that if we find it in our view that that might scuttle your procedural due process claim arguably although i haven't decided but it wouldn't affect your takings claim and your substantive to process so procedural due process might be impaired claim on that by not having taken an appeal procedure of some sort but you still have your issues on substance through process and takings which the district court on those claims dismissed them i think on the notion that they had not been exhausted well that seems that seems if i'm right in then correct legal position that the i don't see why they have to why your client would have to exhaust those issues warner for supplemental briefing on this issue that you started off being occupied with but on the other issues i would be sure if i could here today do we have to vacate the ruling on those points and exhaustion and send those back i appreciate the question the district judge did actually say th referenced in the city's brief and bringing them forward in terms of the palazzo case that i mentioned which is in the taking scan text but talks about ripening claims from one owner to the next and the difficulty of challenging this type of conduct  my difficulty in answering the question and we can certainly supplemental discipline in a briefing in terms of the first tax bill he received that's a fair question but the recording statutes in california in talking about how you really give accurate notice about what is going on and if that is not ok and your hook is to do that sufficiently quickly and in a manner that is illegal in the inception and done in a way that is not recordable and has no convince us that the statute of california just actions do not allow these farms to be assessed against a property ok maybe they can be assessed against the prior owner that's what he's litigation is about what do we do with this case judgment that what is the rest of the order say if you're talking about keeping it in federal court which you know would be i think i'm going to federate in front of a federal district judge ok what do we tell the federal district judge to do with the rest of the cases we send it back for further hearings what do we do i think that under coburn under the due process it would be well under the excuse me under the state claim where coburn says that if the city or county cannot come up with a reason why or statutory a treatise or an explanation for why there is not authority to do this or to support authority to do these fines then it should be it should be converted to a summary judgment or allowed to go to summary judgment and grant relief and have the cloud removed because he has all but i'm saying what if we in effect say the cloud should be removed right is there anything else that your client wants i don't know i can certainly do so no even i can check with what you sit down and think about let me ask i mean it would be my niece you want us to do with your nine hundred eighty three claim we would love for you to say that it should be you know granted relief in terms of either coburn or the other look at that to double check maybe also in junk three i mean injunction relief or declaratory relief depending under under his state claims and he was that is i think i think judge pruitt this question says assuming or do we say we've sent back and for other proceedings including x y and z i would say that as long as there is a definitive cloud removal that's critical if that means leaving it open ended and that that relief is somehow mitigated by allowing more proceedings that would be my only concern there may be more to litigate that he has you are saying excessive fines is a stretch whether there is some sort of damage that results or compensatory whether there is something else in the other claims of that he has standing to go back to the inception of the vagueness i'm not sure i'm not sure what breath there is but certainly the number one thing is the removal of the cloud and the potential to get some damages for what has occurred throughout this period you know unless you're asking me specifically and i'm not getting it what claims versus what remedy  time but think about this will give you some time on the cattle and remedy of what's left you know which won't we won't i want to know if if we were to hold hypothetically that the cloud should be removed is this case over or do we need to tell the district as i read the history of the enabling statutes five times people have gone to the legislature and gotten bills passed that would provide such authority expressly and the governor has vetoed it every time that have the authority to impose assessments against the property you know would have an authority to find the owner the question is could it impose an assessment against the property which became a lien on the property and i'd say that the answer is yes the government code section five three zero six nine four point four which is the one that you talked about that was the subject of some attempts to amend and then vetoes i believe does not specifically say on its face that assessments may not be used or that they may be used the language is clear when it says the local agency shall set forth by ordinance the administrative procedures acho govern the imposition infortunate collection and administrative review by the local agencies for those administrative fines or penalties so the government code does allow me tell me which version you really mean it's a it's a one from the middle of a one the local agency shall set forth by ordinance the i'm looking at three six three eight seven seven three point five a as an alternative the legislative body made by ordinance and so it's an alternative to this one it is made by ordinance establish a procedure for the abatement of a includes but is not limited to and it says the actual expenses in costs of the city in the preparation goes on to list a few more things and then at the end of that sentence says and all costs or expenses to which the city may be entitled pursuant to the health and safety code and other statutory entitlements and since the statute says costs of abatement and these are these are not in a normal if i were interpreted a statute is well it's consistent it's part of the abatement proceeding it is not you're correct a direct cost of actually doing something to the property to fix the abatement but it is a part of the process of abatement that the fine itself is intended to encourage compliance with the nuisance abatement so we have a nuisance that it would take ten thousand dollars to abate it's it's that plumbing can you find the owner of the building can thousand dollars a day for two years and say that those those combined fines or costs of abatement i think that you could whether ten thousand a day is  is it probably did but you're not really contending that there what's what's the total assessment against this property before interest it is less than a million dollars but it approaches a million dollars when you're not contending that it would take a million dollars to abate this nuisance no you longer exists that that's correct in the end the nuisance itself was the operation of an illegal marijuana dispensary yet but not by not by the current owner of the prop of the current owner correct so i've got to understand how this million dollars is a cost of abatement it can be assessed against the property and with interest i would say that under the government code section which i first started five three zero six and four point four and the government code section that the court just referred to the provision is allowed for the local agency to set aside the administrative procedures a government position etc so that make you think that you think the administrative procedures that govern to determine what those costs are for the under the city's administrative procedure and i'm saying you can determine what the costs are my question is may you pose them as an assessment or lien against the property nobody nobody in this case is far as i that the the state statute that the court referred to which allows for assessment of costs of nuisance abatement while it does not specifically at include fines or penalties as part of those costs i do believe that the younger statute really doesn't do anything for me it has to be this statute that justifies your your lien right i think both statutes can justify it but it is primarily in the one you just described so now now my question goes back to these this flurry of legislative history people have been trying to amend this statute for a long time and failing and the governor keeps saying i'm not going to let you amend it because i don't want that to happen so now you're asking us to say well those all those efforts have been silly because it's already there yes exactly why ha net sort of counterintuitive sometimes the legislature takes efforts like that for a variety of reasons sometimes it may be to clarify existing law sometimes it may be to make sure that there is no concern but the governor's veto itself i don't believe provides any interpretation but how about the bills when you look at the legislative history of the bills and they were passed by the legislature the proponents keep saying well it's not clear that we have authority to do this and we'd like it to be express cities like yours have gone to the legislature and said we'd really like to do with the city of junior centers doing that not saying that you know as many words in and we're not sure the statute authorizes that and so please pass a statute that makes it clear that we can and the governor keeps saying i don't want that statute i would say that the statute itself doesn't preclude it and the legislative history that does make it clear that the legislature at least believes it should and does say to give you a chance to move on to other issues if you want to but i have one the same question i had for your opponent let's assume you don't prevail and on the statutory side we find that the statute just doesn't authorize these these types of assessments is there anything left in this case and if so what is it i don't think that there isn't much left in this case i would say that in terms of thinking about what the order from this court would read i think that it would have to be remanded to the district court fo proceedings consistent with this court's determination that the that the assessments were improper but whether there's much left i don't think there is much left at that stage ok he claimed da damages he claimed tourney's fees and he had several theories one is procedural due process which we've talked about is also about takings and substantive due process eighth amendment may have been thrown in too late i don't remember  but the district judge dismissed the takings and the substance and due process when we have to decide whether he dismissed them properly or not the court based on the appeal has been father yes the court would have to determine whether he dismissed those improperly or not that is part of the appeal although to the extent that the court finds that the assessments were improperly imposed  the relief requested other than the attorney fees and potentially damages that go with that are i think that they are moved other than the attorney's fees can i ask you a question about procedure question i began with your colleague on him i correct in thinking that when you when the city council does the assessment authorizes the special assessment it doesn't become a lien against the property at that point but only after the taxes are not paid as i understand it once the assessment happens the assessment is sent to the tax going already yeah and at that point it essentially becomes this it had takes on the status of a lien does it or does it just take on the status of an unpaid tax for so for example if i have six months of taxes that are owed to the city right i get a bill that says you have to pay them on january first if i don't pay them then then they can become a lead against my property but if i do pay them on that date the fact that they may there's no lien until the killer taxes aren't paid as a correct as i understand state procedure i think that's correct i'm just trying to figure out when when they're when a cloud is put on the property estimate as opposed to the city maybe proceeding through a mechanism to put a cloud on the property the question is when does the cloud actually rise to the extent that it arises as a cloud in the form of the lien i think it does imposed at the time that you do the assessment as opposed to the time when the taxpayer fails to pay the assessment i believe it is actually on a ok so then then how could he protest thought that it was you know he had a chance at his property tax bill to protest it but if you're saying that the lane is on even before before the property tax bill arrives how is he supposed to protest well my understanding of state property tax law is that when a assessment happens when the tax bill is issued if you well then the taxpayer the owner always has the opportunity to undertake to challenge that assessment that but he might but he might have had a lien on his property there to bill comes every six months right perhaps and under your view he would have might have had a lien on his property for a whole six months before yesterday so tack i may have misunderstood the question and it is because of the confusion and i have about the fact that there is a term assessment there is a term effect they they mean almost the same thing in impracticality but you're correct that the assessment process the assessment of an imposition of a tax or assessment against a piece of real property always has the opportunity for the taxpayer owner of that real property to challenge it and that would go along at the same time with the assessment when it goes onto the property tax bill so i guess i'm just an unpaid it's just an unpaid debt and until the property tax bill goes out and the guy fails to pay it yes can i ask another question about these procedures if somebody appropriately challenged an assessment and their basis for challenging it is the law under which i was charged is void is there any administrative agency that can do anything with that argument well i believe that the  original time of the the the the original time that the citation is issued begins one period of time when that can be challenged and now but i'm asking you ok you make that challenge futile i mean can it can any administrative agency in the system in the system whether it's city or county say san jacinto is ordinance is void well you can go up the chain and you can first challenge at at the city level but then you also have the remedy under california law to be able to file of read the mandate and when you talk about the assessment procedure that we were just discussing i believe that in that from that process you could challenge ok so you would challenge the assessment and then if you didn't succeed you would file a state court suit for rid of mandich yes i believe that's correct and i think that there's i believe there's also a potential rid of mandate that you could file if you challenge the citation originally the imposition of the fine and then the subsequent assessment you could also file a writ proceeding stemming from that process so he did file a state court suit which was removed but and you didn't say he failed to exhaust is administrative remedies did you well i believe we did i think we said he felt exhausted administrative remedies and he failed to exhaust his judicial remedies which are the written remedies but you don't have to exhaust your dish or remedies to when he purchased the property there was perhaps and a fifteen day window which of the original site it's resubmit of a citation would have had to challenge the citation that the judge seems to have in a sort of a nice fashion and said well it's got to be some way to do it so let me think of one that's not really clear that that exists is you know yet there's no warrant that says you have fifteen days after you get the property to do this that's correct but to the extent that there was something he could do he could have done that he didn't well let's assume that he did it didn't exist is there any other any other remedy he would have had yes he did have the opportunity and did in fact request a hearing from the city which was not provided proceeding was available to him that he didn't take advantage of i think the two of them are and they're also in part based on his predecessors failure to act on but i'm not i'm not worried about his predecessor whatever opportunity he could have taken in that fifteen days after he acquired property to say the city i want to contest revoke lou as far as your question about the claims versus remedies i spoke to trial counsel for mr mcconnell that's why i didn't want to just give something away in my answer that wasn't correct and he has reported that what would be  good for them and appropriate would be simply removing the cloud and attorney's fees if that answers your questions or you seek nothing further than that now ok so that would in effect move all your other claims we would simply say to the trial court if we ruled in your favor the cloud ought to go away and you would consider whether or not attorney's fees are available that's correct ok and i know you were asking again from the beginning as well as the city about notice  again this first trying to find out what the clock is you are correct in saying the district judge found based on when the property transferred the city did say there were tribal issues as to whether mr fireworks or mr america mogahed notice of the first assessment i just want to no that and then in the same breath said they are waived by not showing up within fifteen days of that first assessment and also talking about mr meccano not having standing to challenge that first assessment so there really is not a mechanism that i'm aware of that they brought forward other than the inquiry notice to try to clock it at a later time and how to challenge these if that's useful to you a kind of what just tell me what you think the basis is for the attorney's why do you know that there is a basis for the nine hundred three s or is it being removed and as far as what the other bases might be for the state supplementary stature to provide for attorney's fees and i would have to check t