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.”

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.