From:David Koslow
To:City Clerk
Subject:Public Comment for City Council June 18, 2026 Regular Meeting Date:Tuesday, June 16, 2026 9:52:10 AM
Attachments:20260618 RM SIGNED Public Comment.pdf
APRI2400126 Cross-Appellant AOB For Public.pdf
20260608 RECEIVED New Authorities Letter.pdf
20260610 New Authority Letter and POS.pdf
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David Koslow
[email protected]
Home telephone (voice, messages, no text): (760) 202-6838 Cell telephone (voice, messages, text): (760) 660-6131
1 CITY COUNCIL
CITY OF RANCHO MIRAGE , CALIFORNIA
PUBLIC COMMENT OF DAVID S. KOSLOW
AND DOCUMENTATION
TIMELY SUBMITTED BY DAVID S. KOSLOW
TO AND FOR THE COUNCIL’S
NOTICED MEETING OF JUNE 1 8 , 202 6 .
To:
The Honorable Lynn Mallotto , Mayor (Term expires November , 202 6 ); The Honorable Michael O’Keefe , Mayor pro tem (Term expires November, 2028 );
The Honorable Eve Fromberg Edelstein , Councilm ember (Term expires November , 202 8 );
The Honorable Steve Downs , Councilm ember (Term expires November , 202 6 ); and
The Honorable Ted Weill , Councilm ember (Term expires November , 202 6 ).
SUMMARY OF PUBLIC COMMENT AND DOCUMENTATION
FOR INCLUSION IN THE MEETING’S MINUTES:
By this Public Comment and Documentation, David S. Koslow requests that the CITY COUNCIL, CITY OF RANCHO MIRAGE, CALIFORNIA stay all proceedings in the matters of all administrative citations and administrative appeals of all purported enforcements of the Rancho Mirage’s short term vacation rental ordinances until such time as there is a final ruling by an appellate court, state or federal, in the cross appeals of City of Cathedral City v. Richard S. Levik / Richard S.
Levik v. City of Cathedral City, currently pending in the Appellate Division of the California Superior Court for the County of Riverside, as Case No. APRI2400126. (Hereafter, the “Levik Cross-Appeals.”) Submitted with my Public Comment are true and correct copies of Mr. Levik’s Cross-Appellant’s Brief on the Merits, and his two (2) Additional Authorities Letters.
2 TEXT OF PUBLIC COMMENT AND DOCUMENTATION:
INTRODUCTORY IDENTIFICATION.
My name is David S. Koslow. I am a resident, home property owner, registered voter, and taxpayer of Cathedral City, California. Because I pay sales taxes to the City of Rancho Mirage, California, I have standing under Section 526a(a)(2) of the California Code of Civil Procedure to sue the City of Rancho Mirage to enjoin “waste” (as defined by statute and case law) by the City of Rancho Mirage. I am a personal friend of Richard S. Levik, the Cross-Appellant and Respondent in the Levik Cross-Appeals. My home address is 30309 Keith Avenue. My phone number is (760) 202-6838. My email address is [email protected]. This information is a public record included in my recently filed FPPC forms 450 and 501 announcing my candidacy for Cathedral City’s City Counsil, Fourth District.
The following combined Public Comment and Documentation is submitted in writing by email to the City Clerk at [email protected] on June 16, 2026 for inclusion in the official records of the Public Comment portion of the City Council’s June 18, 2026 meeting.
PUBLIC COMMENT
In the Levik Cross-Appeals, the appellate court has under its review, among other statutory and constitutional issues, the decision of the Honorable Manuel Bustamante, Judge, Superior Court, Palm Springs Courthouse, in which the trial court held that the $5,000 fine sought to be imposed by the City of Cathedral City for violation of its short term vacation rental ordinance is an Excessive Fine prohibited by the United States Constitution and by the California Constitution.
Mr. Levik’s Cross-Appellant’s Brief on the Merits discusses the two-tier STVR fine schedule adopted by the City of Rancho Mirage. See the attachment to Mr. Levik’s Cross-Appellant’s Brief on the Merits.
Respectfully submitted,
David S. Koslow
Attachments as indicated
1 APPEAL NO. APRI2400126
(SUPERIOR COURT NO. CVPS2403242)
IN THE APPELLATE DIVISION OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA FOR THE COUNTY OF RIVERSIDE
CITY OF CATHEDRAL CITY ,
Gov. § 53069.4 Respondent/Appellant/Cross-Respondent
vs.
RICHARD S. LEVIK,
Gov. § 53069.4 Appellant /Cross-Appellant/Respondent.
CROSS-APPEAL FROM THE SUPERIOR COURT’S FINAL JUDGMENT
ON THE APPEAL OF ADMINISTRATIVE FINE OR PENALTY
(GOV. § 53069.4, CATHEDRAL CITY MUNICIPAL CODE § 11.80.120); AND FROM RELATED ORDERS MERGED INTO THE FINAL JUDGMENT.
FROM SUPERIOR COURT OF RIVERSIDE COUNTY
CASE NO. CVPS2403242
THE HONORABLE MANUEL BUSTAMANTE, JUDGE
CROSS-APPELLANT RICHARD S. LEVIK’S
BRIEF ON THE MERITS
RICHARD S. LEVIK
GOV. § 53069.4 Appellant, Cross-Appellant, and Respondent, In Propria Persona
68425 Corta Road, Cathedral City, CA 92234
(310) 871-7879 [email protected]
Service has been made on the California Attorney General as required by Cal. Rules of Court, rule 8.29(c)(1).
2 CERTIFICATE OF WORD COUNT
[Cal. Rules of Court, rules 8.883(b)(1) and (b)(5)]
Relying upon the word count of the Microsoft Word 365
program used to generate this Cross-Appellant’s Brief on the Merits, Cross-Appellant represents that the applicable text contains approximately 12,452 words, around 5,652 more words than the 6,800-word maximum set by court rules. The brief consists of around 87 pages, plus a six-page Attachment. This brief is due May 23, 2026. Pursuant to rule 8.883(b)(5), Cross-Appellant attaches his overlong brief to his concurrently filed Application to the Presiding Judge of the Appellate Division for permission to file this longer brief for good cause, good cause being presumptively established by (a) the lengthy record (Court Transcript of 650 pages in three Volumes), and (b)the numerous and complex issues on appeal, requiring lengthy sections of the brief devoted to the Legislative history of the statutes involved. The attached brief is bookmarked and includes a table of contents and a table of authorities.
May 21, 2026 Richard S. Levik
3 INITIAL CERTIFICATE OF
INTERESTED ENTITIES OR PERSONS
(Cal. Rules of Court, Rule 8.308)
There are no interested entities or parties to list in this certificate.
May 21, 2025
Richard S. Levik, Cross Appellant
4 TABLE OF CONTENTS
TITLE PAGE ....................................................................................... 1 CERTIFICATE OF WORD COUNT .................................................. 2
INITIAL CERTIFICATE OF INTERESTED ENTITIES OR
PERSONS ............................................................................................ 3 TABLE OF CONTENTS ..................................................................... 4 TABLE OF AUTHORITIES ............................................................... 9 I. INTRODUCTION ......................................................................... 15 II.DEFINITIONS, ABBREVIATIONS,
AND AUTHORITIES. ....................................................................... 16 II. A. INCORPORATION BY REFERENCE. ................................. 16 II. B. DEFINITION OF “MAXIMUM.”........................................... 17 II. C. PARTIES. ................................................................................ 17 II. D. RECORD ON APPEAL. ......................................................... 17 II. E. UNITED STATES CONSTITUTION. .................................... 18 II. F. CALIFORNIA CONSTITUTION. .......................................... 19 II. G. CALIFORNIA STATUTES. ................................................... 21 II. G. 1. CODE OF CIVIL PROCEDIRE . ........................................ 21 II. G. 2. GOVERNMENT CODE. .................................................... 21 II. G. 3. PENAL CODE..................................................................... 26 II. G. 4. REVENUE AND TAXATION CODE (“RTC”). ............... 27 II. H. CATHEDRAL CITY. .............................................................. 27
5 II. H. 1. CHARTER ........................................................................... 27 II. H. 2. CATHEDRAL CITY MUNICIPAL CODE. ........................ 28 II. H. 3. CATHEDRAL CITY RESOLUTION. ................................ 31 II. H. 4. “FINES” IS THE COMBINED REFERENCE
FOR RESOLUTION AND CCMC§13.58.020(B) ............................ 31 II. I. CITY OF RANCHO MIRAGE RESOLUTION. ...................... 32 II. J. MONTANARO CASE.... ......................................................... 32 II. K. CONTROLLING CASES. ...................................................... 33 III. THE RELIEF SOUGHT BY CROSS-APPELLANT. ................ 33 III. A. THE APPEAL HEARING IN THE CITY’S
CITY FORUM CHOICE. .................................................................. 33 III. B. AT THE TRIAL COURT’S 53069.4
DE NOVO APPEAL........................................................................... 34 III. C. AT THIS APPELLATE DIVISION. ...................................... 35 IV.APPEALABILITY OF THE FINAL JUDGMENT
AND THE ORDERS ISSUED AFTER AND BEFORE
THE FINAL JUDGMENT. ................................................................ 39 V.FOR EACH APPEALED JUDGMENT OR ORDER,
THE STANDARD OF REVIEW IS BOTH
DE NOVO AND INDEPENDENT. ................................................... 41 .VI. SUMMARY OF THE SIGNIFICANT FACTS
LIMITED TO MATTERS IN THE RECORD. ................................. 43 VI. A. REGULATORY BACKGROUND. ...................................... 43 VI. A. 1. ADOPTION OF CHARTER CITY STATUS. .................. 43
6 VI. A. 2. ADOPTION OF STVR REGULATION. .......................... 44 VI. B. SUMMARY OF RELEVANT PROCEEDINGS. ................. 47 VII.BY ITS CITY FORUM CHOICE, CITY DEPRIVED
CROSS-APPELLANT OF CONSTITUTIONAL AND
STATUTORY SUBSTANTIVE AND PROCEDURAL
PROTECTIONS FROM GOVERNMENTAL OVERREACH
GUARANTEED IN A COURT FORUM CHOICE .......................... 53 VIII. THE TRIAL COURT’S PREJUDICIAL ERRORS ................ 57 VIII. A. PREJUDICIAL ERRORS BASED ON
STATE AND FEDERAL CONSTITUTIONS
AND ON CITY’S CHARTER. .......................................................... 57 VIII. A. 1. PREJUDICIAL ERROR BY FAILING TO FIND
CHARTER103 AND THE FINES VIOLATIVE
OF CaConst.artXI§5........................................................................... 57 VIII. A. 2. PREJUDICIAL ERROR BY FAILING TO FIND
53069.4(a)(1). 36900(a), AND 36901 UNCONSTITUTIONAL
FACIALLY AND AS APPLIED.... ................................................... 58 VIII. A. 3. THE TRIAL COURT PREJUDICIALLY
ERRED BY COMPARING BAJAKAJIAN’S THIRD
PROPORTIONALITY FACTOR
TO THE WRONG STATUTE. .......................................................... 61 VIII. A. 4. THE TRIAL COURT PREJUDICIAL ERRED
BY FAILING TO STRIKE THE FINES, AND INSTEAD,
IN ERROR, BY JUDICIALY AMENDING THE FINES
IN VIOLATION OF THE SEPARATION OF POWERS
DOCTRINE. ....................................................................................... 62 VIII. B. PREJUDICIAL ERRORS BASED ON STATUTES.......... 66 VIII. B. 1. THE TRIAL COURT PREJUDICIALLY ERRED
BY FAILING TO FIND THAT THE FINES VIOLATE
36901’S $1,000 LIMIT SPECIFIC TO CITY FORUM CHOICE
ADMINISTRATIVE FINES.............................................................. 66
7 VIII. B. 2. THE TRIAL COURT PREJUDICIALLY ERRED
BY MAKING TWO JUDICIAL AMENDMENTS,
BOTH VIOLATING THE SEPARATION OF POWERS
DOCTRINE, WHEN THE TRIAL COURT
WAS REQUIRED TO STRIKE THE FINES.................................... 68 VIII. B. 3. ALTERNATIVELY, ARGUENDO, IF THESE
JUDICIAL AMENDMENTS ARE CONSTITUTIONAL,
THE TRIAL COURT PREJUDICIALLY ERRED
BY INCORRECTLY BASING THE 50% FINE
ON 36900(d)(1)(A). ........................................................................... 69 VIII. B. 4. ATERNATIVELY, THE TRIAL COURT,
BY MISINTERPRETING 53069.4, PREJUDICIALLY
ERRED BY DENYING MR. LEVIK’S MOTION FOR
CONTINUANCE TO CONDUCT
ECONOMIC DISCOVERY. .............................................................. 69 IX.THE LEGISLATIVE HISTORIES OF 36900 AND 36901
CONFIRM THAT THE FINES VIOLATE 36901’s DEFAULT
$1,000 MAXIMUM ADMINISTRATIVE FINE
AND THAT 36901, NOT 36900(d)(1)(A),
IS THE COMPARABLE STATUTE FOR
BAKAJANIAN’S THIRD PROPORTIONALITY FACTOR .......... .70 IX. A. INTRODUCTION TO LEGISLATIVE HISTORIES. .......... 71 IX. B. LEGISLATIVE HISTORY OF EARLY RELEVANT
STATUTORY ENACTMENTS. ....................................................... 72 IX. C. SUBSEQUENT LEGISLATION CONFIRMS 36901’s
$1,000 MAXIMUM FINE APPLIES TO CITY FORUM CHOICE
ADMINISTRATIVE FINES WHERE NO OTHER STATUTE
ESTABLISHES A MAXIMUM FINE FOR THE OFFENSE AT
ISSUE. ................................................................................................ 75 IX. C. 1. FAILED ATTEMPTS TO INCREASE BY STATUTE
36901’S $1,000 DEFAULT ADMINISTRATIVE FINE
CONFIRM THE APPLICABILITY HERE
OF THE STATUTORY DEFAULT FINE. ....................................... 75
8 X.THIS CHARTER CITY’S ADOPTION OF
THE LEGISLATURE’S STATEWIDE UNIFORM FINES
FOR VIOLATIONS OF LOCAL AGENCIES’
CANNABIS ORDINANCES CONTRADICTS CITY’S CLAIM
OF “LOCAL RULE” EXEMPTION FOR CITY’S VIOLATION OF
36901’S $1.000 MAXIMUM... .......................................................... 81 X. A. LEGISLATIVE HISTORY OF CITY’S CANNABIS
ORDINANCE FINES. ....................................................................... 81 XI. CONCLUSION AND PRAYER. ............................................... 85 ATTACHMENT “1”
(RANCHO MIRAGE RESOLUTION 2025 - )
(SIX PAGES) .................................................................... follows p. 87 PROOF OF SERVICE ................................................ End of document
9 TABLE OF AUTHORITIES
UNITED STATES CONSTITUTION
art.VI, cl. 2........................................................................................ 18 amend.V ........................................................................................... 18 amend.VI ......................................................................................... 18 amend.VIII ................................................................................ passim amend.XIV § 1 ................................................................................. 19
CALIFORNIA CONSTITUTION
art. I §17 ...................................................................................... passim art. III §1 ............................................................................................. 19 art. III §3.5 .................................................................................... 19. 35 art. XI §3 subd. a .......................................................................... 20, 57 art. XI § 5. .................................................................................... 20, 57
FEDERAL CASES
Marbury v. Madison (1803) 5 U.S. (1 Cranch) 137 ........................... 62 Securities and Exchange Commission v. Jarkesy (2024)
144 S.Ct. 2117. ............................................................................ passim U.S. v. Bajakajian (1998) 524 U.S. 321. ..................................... passim
CALIFORNIA STATE CASES
Ca. DUI Lawyers Assoc. v. DMV (2022)
77 Cal.App.5th 517 ...................................................................... 39 Cohen v. Board of Supervisors (1985)
40 Cal.3d 277, 287-289 (1985) .................................................... 42
10 Cohen v. Superior Court (Schwartz),
California Supreme Court Docket No. S265484,
appeal from Cohen v. Superior Court (2024)
102 Cal.App. 5th 706 ................................................................... 22 Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 801 ................... 42, 43 County of Humboldt v. Appellate Division
of Superior Court (2020) 46 Cal.App.5th 298 ....................... 83, 84 Jamison v. Department of Transp. (2016)
4 Cal.App.5th 356, 362 (2016) ..................................................... 42 Ketchens v. Reiner (1987) 194 Cal.App.3d 470, 474 ................... 42 Mattson Tech Inc. v. Applied Materials, Inc.
(2023) 96 Cal.App.5th 1149, 1159 ............................................... 42 Niedermeier v. FCA US LLC (2024) 15 Cal.5th 792, 804 .......... 42 North Coast Coalition v. Woods (1980)
110 Cal.App.3d 800, 804-804 ...................................................... 42 People v. Kopp (2025) 19 Cal.5th 1 ....................................... 55, 56 Reid v. Google, Inc (2010) 50 Cal.4th 512, 527........................... 42 Romane v. Department of Motor Vehicles (2025)
110 Cal.App. 5th 1002, review pending before
California Supreme Court as Docket No. S291093 ..................... 39 Wheeler v. Appellate Division of the Superior Court
of Los Angeles County (2024), 15 Cal.5th 1193 ................... passim Wilson v. Beville (1957) 47 Cal.2d 852, 857 ................................ 71
STATE STATUTES
CODE OF CIVIL PROCEDURE
§ 170.6 .......................................................................................... 54 § 904.2 ................................................................................... passim
11 GOVERNMENT CODE
§ 36900 .................................................................................. passim § 36901 .................................................................................. passim § 36933 ......................................................................................... 31 § 53069.4 ............................................................................... passim §§ 54950 - 54963 (Brown Act) .................................................... 31
PENAL CODE
§ 16 ............................................................................................... 26 § 18 ........................................................................................ 26, 67 § 1385(a) ...................................................................................... 27 REVENUE AND TAXATION CODE.
§ 19282 ......................................................................................... 34
CALIFORNIA RULES OF COURT
rule 8.29(c)(1)................................................................................. 1 rule 8.308 ........................................................................................ 3 rule 8.883(b)(1) .............................................................................. 2 rule 8.883(b)(5) .............................................................................. 2 rule 8.1115(a) ............................................................................... 33
CITY OF CATHEDRAL CITY
CHARTER
§ 103 ............................................................................... 27. 36, 44, 57 § 104 ................................................................................................. 44 § 400 ........................................................................................... 28. 36 § 501 ........................................................................................... 28, 44
MUNICIPAL CODE (CCMC)
§ 13.58.020 ............................................................................ passim § 13.65.010 ............................................................................. 29, 46
12 § 13.70.030 ............................................................................. 30, 46 § 5.96.020 .............................................................................. passim § 5.96.040.C .......................................................................... passim § 5.96.070.A ................................................................................. 30 § 5.96.070.B.4 ........................................................................ 30, 46
RESOLUTION
Resolution No. 2022 – 14 (March 23, 2022).........................Passim
CITY OF RANCHO MIRAGE
Resolution No. 2025-30 (July 17, 2025)
(ATTACHMENT 1) ................................................... 32, 38, 64, 65 LEGISLATIVE MATERIALS.
Throughout pages 72 – 85.
Assem. Bill No. 1684 (2023-2024 Reg. Sess.)
Assem. Com. on Local Government, Analysis of Sen. Bill
No. 60 (2021-2022 Reg. Sess.) June 8, 2021
Assem. Com. on Public Safety, 3d reading analysis of
Sen. Bill No. 814 (1995-1996 Reg. Sess.) as amended
Aug. 21, 1995
Assem. Floor Analysis of Assem. Bill No. 1684
(2023-2024 Reg. Sess.) Sept. 12, 2023
Prop. 64, as approved by voters, Gen. Elec. (Nov. 8, 2016) Sen. Bill No. 60 (2021-2022 Reg. Sess.)
Sen. Bill No. 1049 (2019-2020 Reg. Sess.)
Sen. Bill No. 1049 (2019-2020 Reg. Sess.) as introduced Feb. 18, 2020
13 Sen. Bill No. 1049 (2019-2020 Reg. Sess.) as amended Aug. 25, 2020
Sen. Com. on Crim. Proc., Analysis of Sen. Bill No. 814 (1995-1996 Reg. Sess.) Apr. 18, 1995
Sen. Com. on Governance and Finance, Analysis of Assem.
Bill No. 2164 (2017-2018 Reg. Sess.) June 25, 2018
Sen. Com. on Governance and Finance, Analysis of Sen. Bill No. 60 (2021-2022 Reg. Sess.) Mar. 8, 2021
Sen. Com. on Governance and Finance, Analysis of Sen. Bill No. 1049 (2019-2020 Reg. Sess.) May 26, 2020
Sen.Rules Com., 3d reading analysis of Assem. Bill No. 2164 (2017-2018 Reg. Sess.) July 3, 2018
OTHER AUTHORITIES
William J. Aceves, Shadow Amendments,
60 Harv. J. on Legis. 27 (2023). Available at:
https://scholarlycommons.law.cwsl.edu/fs/411 ............................ 64 Julia Baum, Glazer bill would raise fines
on short-term rentals, Danville San Roman
Tri-Valley News (July 5, 2020).
https://www.danvillesanramon.com/news/2020/07/05/
glazer-bill-would-raise-fines-on-short-term-rentals/
(as of May 20, 2026) .................................................................... 76 Eric Fish, Judicial Amendments of Statutes,
84 Geo. Wash. L. Rev. 3, pp. 564 – 600.
Available at https://www.gwlr.org/vol -84-no-3/ .......................... 63 Philip Hamburger , Is Administrative Law Unlawful,
p. 438 (2014). ............................................................................... 15
14 John Locke, Second Treatise of Government:
An Essay Concerning the True Original, Extent
and End of Civil Government §141 (1764 ed.) ........................... 16 Merriam-Webster Dictionary. https://www.merriam-
webster.com/dictionary/maximum
(last viewed May 18, 2026) .......................................................... 17 Ilan Wurman, Nondelegation at the Founding,
130 Yale L.J. 1490, 1518. n.146 (2021) ....................................... 16
15 APPEAL NO. APRI2400126
(FROM SUPERIOR COURT NO. CVPS2403242)
IN THE APPELLATE DIVISION OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF RIVERSIDE
CROSS-APPELLANT RICHARD S. LEVIK’S
BRIEF ON THE MERITS
I.
INTRODUCTION.
“Once it is clear how administrative power revives absolute power, and how this power conflicts with the nature of American law, liberty and society, one can dig into the details of how it violates the Constitution. Because it returns to the very power that constitutional law developed in order to defeat, it does more than simply depart from one or two constitutional provisions. It systematically steps outside the Constitution’s structures, thereby creating an anti-constitutional regime.
“The U.S. Constitution bars any power above the law by
establishing all of the government under law. It then bars any consolidated power outside the law by distinguishing the three specialized powers and placing them in specialized institutions, thus requiring legislative power to be exercised only through the law, and judicial powers only through the decisions of the courts. The Constitution then subjects legislative and judicial powers to various processes and rights. All of these constitutionally established limits, however, are brushed aside by administrative power.”
Philip Hamburger1, Is Administrative Law Unlawful, p. 438 (2014).
1 Philip Hamburger is the Maurice and Hilda Friedman Professor of
16 “The power of the legislative being derived from the people by a positive voluntary grant and institution, can be no other, than what that positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws, and place it in other hands.”
John Locke, Second Treatise of Government: An Essay
Concerning the True Original, Extent and End of Civil Government §141 (1764 ed.) 2
II.
DEFINITIONS, ABBREVIATIONS,
AND AUTHORITIES.
II. A.
INCORPORATION BY REFERENCE.
These definitions, abbreviations, and authorities are fully incorporated by this reference into each section, infra, of this brief.
Law at Columbia University Law School, New York City, New York.
See his biography at https://en.wikipedia.org/wiki/Philip_Hamburger 2 See also Ilan Wurman, Nondelegation at the Founding, 130 Yale L.J. 1490, 1518. n.146 (2021) (collecting sources showing Locke’s influence on the Founding generation).
17 II.B.
DEFINITION OF “MAXIMUM.”
The term “maximum,” as used throughout, is defined as the upper limit allowed by a legal authority.3
II.C.
PARTIES.
“Cross-Appellant” or “Mr. Levik” means Richard S. Levik, the Gov.§53069.4 trial court Appellant, and now this Appellate Division’s Respondent and Cross-Appellant. Mr. Levik appeared in the trial court, and appears now in this Appellate Division, in propria persona and with court filing fee waivers.
“City” (with uppercase “C”) means the City of Cathedral City, a Charter city, the Gov.§53069.4 trial court Respondent, and now the Appellate Division Appellant and Cross-Respondent.
II.D.
RECORD ON APPEAL.
“CT” means the corrected Clerk’s Transcript in three volumes. 3 “Maximum” as defined by Merriam-Webster Dictionary.
https://www.merriam-webster.com/dictionary/maximum (last viewed May 18, 2026).
18 “Orders” means each and all of the five (5) orders from which this Cross-Appeal is taken.
II. E.
UNITED STATES CONSTITUTION.
”U.S.Const.art.VI,cl.2” means the Supremacy Clause of the U.S.
Constitution.
“U.S.Const.amend.VIII,” (“Eighth Amendment” or “Excessive Fines prohibition”) states in full:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (Emphases added.) “U.S.Const.amend.VI” (“Sixth Amendment”) states in pertinent part:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, , , , and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
“U.S.Const.amend.V” (“Fifth Amendment”) provides, in pertinent part:
19 “No person . . . [can] be deprived of life, liberty, or property, without due process of law . . . .”
“U.S.Const.amend.XIV§1” (“Fourteenth Amendment”) provides, in pertinent part,
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The combination of the Fourteenth Amendment and the Fifth Amendment are referred to as “Due Process.”
II. F.
CALIFORNIA CONSTITUTION.
“CaConst.artIII§1” affirms that the U.S. Constitution is the supreme law of the land.
“CaConst.artIII§3.5” provides that an administrative agency is not permitted:
“(a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is
unconstitutional;
20 “(b) To declare a statute unconstitutional;
“(c) To declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations subject only to that Court’s review by the California Supreme Court.”
“CaConst.artXI§5.” provides that cities which have adopted a charter pursuant to CaConst.artXI.§3(a) by citizens’ majority vote possess "home rule" authority, allowing them to make and enforce ordinances regarding "municipal affairs" that supersede conflicting state laws. Operating under a voter-approved charter - a local constitution - rather than general state statutes, a charter city is permitted to manage “municipal affairs” like council composition, local elections, and city contracts.
“CaConst.artXI§17” means the California Constitution’s
prohibition of “excessive fines imposed.” The term “Eighth Amendment” or “Excessive Fines prohibition” means and includes both CaConst.artXI§17 and U.S.Const.amend.VIII,
21 II. G.
CALIFORNIA STATUTES.
II. G. 1.
CODE OF CIVIL PROCEDIRE
“CCP§904.2” permits appeals to the appellate division from a limited civil case from inter alia (1) a judgment (with restrictions not applicable here) [CCP§904.(a)], (2) an order made after a CCP§904.2)(a) qualifying judgment [CCP§904.(b)], and/or (3) an order denying a motion for judgment notwithstanding the verdict [CCP§904(e)].
II. G. 2.
GOVERNMENT CODE.
All undesignated numbers are to the Government Code.
“36900(d)(2)” abbreviates the term “short term vacation rental” as “STVR” and defines STVR as “a residential dwelling, or any portion of a residential dwelling, that is rented to a person or persons for 30 consecutive days or less.”
“53069.4(a)(1)” provides in full: “The legislative body of a local agency, as the term ‘local agency’ is defined in Section 54951, may by ordinance make any violation of any ordinance enacted by the local agency subject to an administrative fine or penalty. The local
22 agency shall set forth by ordinance the administrative procedures that shall govern the imposition, enforcement, collection, and administrative review by the local agency of those administrative fines or penalties. Where the violation would otherwise be an infraction, the administrative fine or penalty shall not exceed the maximum fine or penalty amounts for infractions set forth in Section 25132 and subdivision (b) of Section 36900.”
“54951” includes city and county in its definition of “local agency.”
“36900” means 36900 and all of its subdivisions.
”36900(a)” means 36900(a) which provides:
“Violation of a city ordinance is a misdemeanor unless by ordinance it is made an infraction. The violation of a city ordinance may be prosecuted by city authorities in the name of the people of the State of California or redressed by civil action.” (Emphases added.)4 ”36900(b)” means Gov.§36900 (b) which provides:
4 Currently before the California Supreme Court is the issue: “[d]oes Government Code section 36900, subdivision (a) confer upon private citizens a right to redress violations of municipal ordinances.” Cohen v. Superior Court (Schwartz), S265484, an appeal from Cohen v.
Superior Court (2024) 102 Cal.App. 5th 706.
23 “Every violation determined to be an infraction is punishable by the following:
“(1) A fine not exceeding one hundred dollars ($100) for a first violation.
“(2) A fine not exceeding two hundred dollars ($200) for a second violation of the same ordinance within one year.
“(3) A fine not exceeding five hundred dollars ($500) for each additional violation of the same ordinance within one year.” ”36900(c)” means 36900(c) which provides in full:
“(c) Notwithstanding any other law, a violation of local building and safety codes determined to be an infraction is punishable by the following:
“(1) A fine not exceeding one hundred thirty dollars ($130) for a first violation.
“(2) A fine not exceeding seven hundred dollars ($700) for a second violation of the same ordinance within one year. “(3)(A) A fine not exceeding one thousand three hundred dollars ($1,300) for each additional violation of the same ordinance within one year of the first violation.
“(3)(B) A fine not exceeding two thousand five hundred dollars ($2,500) for each additional violation of the same ordinance within
24 two years of the first violation if the property is a commercial property that has an existing building at the time of the violation and the violation is due to failure by the owner to remove visible refuse or failure to prohibit unauthorized use of the property.” (Emphases added.)
”36900(d)” means 36900(d) and its subparts which provide in full:
“(d)(1). Notwithstanding any other law, including subdivisions (b) and (c), the violation of a short-term rental ordinance that is an infraction is punishable by the following:
“(d)(1)(A) A fine not exceeding one thousand five hundred dollars ($1,500) for a first violation.
“(d)(1)(B) A fine not exceeding three thousand dollars ($3,000) for a second violation of the same ordinance within one year. “(d)(1)(C) A fine not exceeding five thousand dollars ($5,000) for each additional violation of the same ordinance within one year of the first violation.
“(d)(2) For purposes of this section, “short-term rental” means a residential dwelling, or any portion of a residential dwelling, that is rented to a person or persons for 30 consecutive days or less. “(d)(3) For purposes of this section, “residential dwelling” means a private structure that is designed and available, pursuant to
25 applicable law, for use and occupancy by one or more individuals. “Residential dwelling” does not include a commercially operated hotel, motel, bed and breakfast inn, or a time-share property as defined by subdivision (aa) of Section 11212 of the Business and Professions Code.
“(4) The fine limits set by this subdivision apply only to infractions that pose a threat to public health or safety. The fines described in this subdivision shall not apply to a first-time offense of failure to register or pay a business license fee. Nothing in this subdivision limits the authority of a city, or city and county, to establish lower fines for specific violations by ordinance.” “36900(e)” means 36900(e) which provides in full:
“(e) A city levying a fine pursuant to paragraphs (2) and (3) of subdivisions (b) and (c), and paragraph (1) of subdivision (d), shall establish a process for granting a hardship waiver to reduce the amount of the fine upon a showing by the responsible party that the responsible party has made a bona fide effort to comply after the first violation and that payment of the full amount of the fine
26 would impose an undue financial burden on the responsible party.”5
“36901” means Gov.§36901, which provides in full: “The city legislative body may impose fines, penalties, and forfeitures for violations of ordinances. It may fix the penalty by fine or imprisonment, or both. A fine shall not exceed one thousand dollars ($1,000). Imprisonment shall not exceed six months.” (Emphases added.)
II. G. 3.
PENAL CODE.
“Pen.§16” means Pen. §16 which lists public offenses as including Felonies, Misdemeanors, and Infractions.
“Pen.§18” means Pen. §18 which provides in full:
“Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.”
5 CCMC contains no process for granting the 36900(e) hardship waiver. And the Citation served on Mr. Levik did not disclose the availability of a hardship waiver.
27 “Pen.§1385(a)” means Pen. §1385, Subd. (a) which provides, in pertinent part:
“The judge or magistrate may, either on motion of the court or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.”
II. G. 4.
REVENUE AND TAXATION CODE (“RTC”).
“RTC§19282” means RTC §19282 which empowers California
Franchise Tax Board (“FTB”), through its Court-Ordered Debt program (“COD”), on behalf of City to collect delinquent fines by imposing liens on the delinquent party’s FTB State tax refund.
II.H.
CATHEDRAL CITY.
II. H. 1.
CHARTER.
“Charter” means the City’s Charter.
“Charter103” means section 103 of Charter which provides in full:
“Fines and Penalties. The City Council may determine the maximum amount of any fine, penalty or forfeiture for violations of a City ordinance or resolution.” (Emphasis added.)
28 “Charter400” means section 400 of Charter which provides in full:
“General Law Powers. In addition to the power and authority granted by the terms of this Charter and the Constitution of the State of California, the City shall have the power and authority to adopt, make, exercise and enforce all legislation, laws and regulations and to take all actions and to exercise any and all rights, powers, and privileges heretofore or hereafter established, granted or prescribed by any law of the State of California or by any other lawful authority. In the event of any conflict between the provisions of this Charter and the provisions of the general laws of the State of California, the provisions of this Charter shall control.” (Emphases added.) “Charter§501” means section 501 of Charter which provides:
“Severability. If any provision of this Charter should be held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, the remaining provisions shall remain enforceable to the fullest extent permitted by law.”
II. H. 2.
CATHEDRAL CITY MUNICIPAL CODE.
“CCMC” means the Cathedral City Municipal Code.
“CCMC§5.96.020” defines STVR as “any privately owned
qualifying residential dwelling unit or portion thereof, rented for
29 occupancy, dwelling, lodging, or sleeping purposes for a period of thirty consecutive calendar days or less, counting portions of calendar days as full use days, in exchange for any form of monetary or non- monetary consideration such as, but not limited to, trade, fee, swap or any other in lieu of cash payment.”
“CCMC§5.96.040.C” includes advertising a STVR as a violation of CCMC §5.96.
“CCMC§13.65.010” provides:
“Any violation of the municipal code by a member of the public that is not exclusively deemed a misdemeanor violation shall be deemed an infraction violation and shall be prosecuted as such pursuant to this title.”
“CCMC§5.96.070.B.4” however provides in full:
In addition or in the alternative, any violation of this chapter [CCMC§5.96 – City’s STVR-specific ordinance] may constitute a misdemeanor which may be subject to the
maximum punishment therefor as allowed by law.” (Emphases added.)
30 “CCMC§13.70.030” provides in full:
“The city attorney shall have the discretion to reduce any misdemeanor violation to an infraction violation.”6
“CCMC §5.96.070.A” provides in full:
“The city council shall establish fines, penalties, and other charges for violation of this chapter [CCMC 5.96 – City’s STVR-specific regulations] by resolution, which may be amended from time to time.”
“CCMC §13.58.020(B)” establishes strict liability fixed penalties for payments 31 – 60 days late (50% of original fine) and 61 or more days late (100%). CT Vol. 1, pp. 207 – 210.
6 An offense that can be charged as either a misdemeanor or an infraction is commonly referred to as a "wobblette". This hybrid classification gives prosecutors the discretion to charge a minor crime less severely, usually depending on the specific circumstances of the case or the defendant's criminal history.
31 II. H. 3.
RESOLUTION.7
“Resolution ” means City Resolution No. 2022 – 14 dated March 23, 2022 establishing $5,000, $10,000 and $15,000 strict liability fixed fines for violation of City’s STVR ordinance. CT, Vol. 1, pp. 166 – 168.
II. H. 4.
“FINES” IS THE COMBINED REFERENCE
FOR RESOLUTION AND CCMC§13.58.020(B).
“Fines” (uppercase “F”) means the City’s city forum choice administrative fines for violations of CCMC STVR ordinance as authorized by the combination of the Resolution (setting the flat
7 In California, City Council Resolutions do not have the same strict legal publishing requirements as Ordinances, but they must be adopted in open meetings properly noticed under the Brown Act, which requires agenda posting. Per 36933, Ordinances require publishing or posting within 15 days of passage. By contrast, Resolutions are actions passed at regular city council meetings and are immediately effective. Under §§ 54950 - 54963 (the Ralph M. Brown Act), the agenda for a regular city council meeting must comply with strict transparency requirements, including disclosure of Resolutions under consideration at the meeting. Agendas must be posted in a publicly accessible location and on the city’s website homepage at least 72 hours before the meeting. Significantly, after passage, City’s Ordinances are integrated into the CCMC; City’s Resolutions are not.
32 fines) and by CCMC§13.58.020(B) (establishing the late payment penalties). CT Vol. 1, pp. 166 – 168 (Resolution), CT Vol. 1, pp. 207 –210 (late payment penalties).
II.I.
CITY OF RANCHO MIRAGE RESOLUTION.
Referred to herein as “Attachment 1,” Resolution 2025 – 30 of the City of Rancho Mirage, California, was adopted and became effective on July 17, 2025.
II.J.
MONTANARO CASE.
“Montanaro” means the trial court and all subsequent appeal proceedings in Alessandra Montanaro v. City of Cathedral City. “Montanaro Decision” means the July 5, 2024 per curiam decision of this Appellate Division of the Riverside Superior Court in Alessandra Montanaro v. City of Cathedral City, Case No.
APRI2300078, an appeal taken from Superior Court Case No.
CVPS230265. CT, Vol. 2, pp. 339 – 351.8
8 Before the Montanaro Decision became final, the appeal was transferred by order of, and to, the Fourth District Court of Appeal, Division 2, as Case No. E084343. In its nonpublished decision dated December 5, 2025, the 4DCA/2 ruled that Ms. Montanaro’s arguments were forfeited because they were not raised at the Superior Court or in her Appellant’s Opening Brief. Ms. Montanaro’s Petition
33 II. K.
CONTROLLING CASES.
“Bajakajian” means U.S. v. Bajakajian (1998) 524 U.S. 321. “Jarkesy” means Securities and Exchange Commission v. Jarkesy (2024) 144 S. Ct. 2117.
“Wheeler” means Emily Wheeler v. Appellate Division of the Superior Court of Los Angeles County (2024) 15 Cal.5th 1193.
III.
THE RELIEF SOUGHT
BY CROSS-APPELLANT.
III. A.
THE APPEAL HEARING IN
THE CITY’S CITY FORUM CHOICE.
At the City’s city forum choice appeal hearing, Mr. Levik requested recusal of Brian Podolsky, the hearing officer selected, assigned, and paid for by Data Ticket, Inc., the company to which City outsources the collection of all City fines, including fines upheld
for Review to the California Supreme Court as Case No. S294808 was denied on February 25, 2026. Consequently, neither the Montanaro Decision nor the 4DCA/2 decision may be cited. Cal. Rules of Court, rule 8.1115 (a).
34 at the city-level appeal hearings by the hearing officers put into place by Data Ticket, Inc. Amongst other aggressive methods of collection, Data Ticket, Inc. utilizes the California Franchise Tax Board’s Court- Ordered Debt program to attach state tax refunds to collect delinquent fines from cited parties.
III. B.
AT THE TRIAL COURT’S
53069.4 DE NOVO APPEAL.
Following Mr. Podolsky’s ruling upholding the Citation and its $5,000 fine, by a timely filed 53069.4 Appeal, Cross-Appellant requested a Superior Court hearing de novo, and, after the hearing, a court judgment (a) vacating the City’s city forum choice’s hearing officer’s decision imposing a $5,000 fine for advertising a STVR without a permit, and (b) dismissing with prejudice the Citation and the Fines, as violative (1) of the federal and state Constitutions’ prohibitions of Excessive Fines and (2) of his substantive and procedural due process rights resulting from the City’s city forum choice instead of its court forum choice.
35 III. C.
AT THIS APPELLATE DIVISION.
All issues presented by this Cross-Appeal were preserved and non- forfeited by presentation at the trial court and/or by inclusion here in Cross-Appellant’s opening brief.
CaConst.artIII§3.5(b) empowers the appellate court to declare a statute unconstitutional; CaConst.artIII§3.5(a), to declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional; and CaConst.artIII§3.5(c), subject only to review by the California Supreme Court, to declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute. The United States Constitution, as interpreted by the U.S. Supreme Court, is included in the term “federal law.” This Cross-Appeal requests this appellate court to exercise its CaConst.artIII§3.5 authority as follows:
1. Declare the statute(s) [law(s)] in Challenge Category 1 unconstitutional under the federal and/or state Constitutions; and/or
2. Declare the statute(s) [law(s)] in Challenge Category 2 unenforceable, or refuse to enforce the statutes, on the basis of their being unconstitutional; and/or
36 3. Declare the statute(s) [law(s)] in Challenge Category 3 unenforceable, or refuse to enforce the statutes in Group 3, on the basis that federal law or federal regulations prohibit the enforcement of such statute; and/or
4. Declare the statutes (laws) in Challenged Category 4 violative of California statutes.
Statute(s)/Law(s) Challenged Relief Category
Resolution 2022-14 and
CCMC§13.58.020 (late penalties)
(collectively, “the Fines”).
1, 2. 3, and 4.
The Fines, 53069.4(a)(1),
36900(a), 36901 (the Fines and
related statutes and Ordinances).
1, 2, 3, and 4
Charter103, Charter400 1, 2, and 4.
Cross-Appellant requests the appellate court to order the trial court on remand to enter judgment in favor of Mr. Levik based on all or any of the following grounds:
1. Charter City’s fixed Fines are struck because they were unlawfully adopted on the incorrect assertion of “local rule” and/or of “municipal concern,” when, instead, they impermissibly conflict with, and are pre-empted by, long established and continuous “state concern” state statutes adopted and reconfirmed throughout the Legislature’s many-decades-long history of enacting, revising, and not revising its comprehensive, cohesive, unified, and deliberately
37 uniform statewide statutory plan (or schedule or scheme) of administrative fines promotive of the Legislature’s policy of statewide fairness, predictability, and uniformity.
2.Alternatively, City’s fixed Fines are struck because they set fixed (nonflexible) fines in violation of the City’s own Charter which authorizes City to set maximum (that is, flexible) fines and not the Fines’ flat strict liability fines. Charter103.
3.City’s fixed Fines are struck as conflicting with 36901’s statutory $1,000 maximum (that is, flexible) administrative fine which governs in the City’s city forum choice.
4.City’s fixed Fines are struck because City’s 53069.4(a)(1) city forum choice deprives Cross-Appellant of Constitutional due process and jury trial, statutory, and all other rights to which Cross-Appellant is entitled in the court forum choice. Section VII, infra. incorporated herein by reference.
5.After applying the third Bajakajian proportionality factor by correctly comparing the Fines to the 36901 $1,000 administrative fine maximum [and not (incorrectly) to the 36900(d)(1) $1,500 infraction maximum], City’s fixed Fines are struck as an unconstitutional violation of the Excessive Fines prohibition.
38 Applicable to 1 – 5 above, the Separation of Powers doctrine prohibits judicial amendment of the “struck” Fines.
However, if permitted by the Separation of Powers doctrine, the trial court’s amendments still require correction. The trial court incorrectly ordered a 50% fine based on the 36900(d)(1)(A) $1,500 infraction maximum fine. The correct statute for the Bajakajian third comparison factor is 36901 ($1,000 maximum administrative fine), and the 50% fine, therefore, is $500. Further, the judicial amendments err in failing to specify that they apply to any STVR violation and not exclusively to a STVR advertising violation. This clarification is necessary to avoid the confusion demonstrated by Attachment 1, the City of Rancho Mirage’s recently adopted two-tier STVR fines (one fine schedule for STVR advertising violations and another fine schedule for STVR rental violations) resulting from that city’s mistaken interpretation of the Montanaro Decision.
Finally, if the Cross-Appeal is not resolved by a decision based on on any one or more of the constitutional and/or statutory grounds presented by this Cross-Appeal, Cross-Appellant requests the appellate court to vacate all Orders including the July 10, 2024 order denying Mr. Levik’s request for continuance and remand with instructions for the trial court to appoint pro bono legal counsel for
39 Mr. Levik and to provide his assigned counsel the necessary continuances prior to the new de novo hearing, to allow counsel adequate time in which to conduct economic discovery re: the legality of the City’s delegation to Data Ticket, Inc., the City’s outsourced fines collection provider, the selection and payment of City’s hearing officers. California DUI Lawyers Association v. Department of Motor Vehicles (2022) 77 Cal.App.5th 517. 9
IV.
APPEALABILITY OF THE FINAL JUDGMENT
AND THE ORDERS ISSUED AFTER AND BEFORE
THE FINAL JUDGMENT.
The final judgment and the other orders appealed from are listed in Cross-Appellant’s Notice of Cross-Appeal. CT, Vol. 2, pp. 591– 593.
9 On April 25, 2022, the California Supreme Court in Case No.
S274860 denied a petition for depublication of the 2DCA4’s California DUI decision. Pending now before the California Supreme Court as Case No. S291093 is its review of the
4DCA1’s decision in Romane v. Department of Motor Vehicles (2025) 110 Cal.App. 5th 1002. The issue accepted for review is:
“Under what circumstances does an administrative per se hearing officer's relationship with the Department of Motor Vehicles (DMV) violate a driver's due process right to an impartial adjudicator by creating an unacceptable risk of bias during a DMV driver's license suspension hearing?”
40 1. The Minute Order of July 18, 2024. CT, Vol 2, pp. 448 – 451.
Authority for Appeal: CCP§904.2(a).
2. That portion of the same Minute Order of July 18, 2024, by which the trial court denied Mr. Levik’s Motion for Nonsuit. CT, Vol 2, pp. 448 – 451. Authorities: (a) CCP§904.2(a), CCP§904.2(b), and CCP§904,2(e).
3. Minute Order of October 8, 2024, denying Mr. Levik' s Motion to Vacate Judgment based on Judge Manuel Bustamante' s violation of rule 8.1115, California Rules of Court. CT, Vol 2, p. 567.
Authorities: (a) CCP§904.2(a), CCP§904.2(b), and CCP§904.2(e).
4. Minute Order of October 8, 2024, denying Mr. Levik's Motion for impon of Levik's Motion for Nonsuit. CT, Vol. 2, p. 568.
Authorities: (a) CCP§904.2(a), CCP§904.2(b), and CCP§904.2(e).
5. Minute Order of July 10, 2024, denying Mr. Levik' s Motion for Continuance to permit discovery, to obtain counsel, and for other relief as specified in the Motion heard that date. CT, Vol 2, p. 365.
Authority: CCP§904.2(a).
41 V.
FOR EACH APPEALED JUDGMENT OR ORDER,
THE STANDARD OF REVIEW
IS BOTH DE NOVO AND INDEPENDENT.
This Cross-Appeal qualifies for both de novo and independent standards of review.
There are no factual issues requiring appellate review presented by this Cross-Appeal.
Determination of each of the issues, and therefore each of the challenged trial court judgments and orders, presents purely legal issues requiring the appellate court’s interpretations, applications, validations and/or invalidations of specific California statutes, the City Charter, City ordinances, and a City Resolution, all tested under other state statutes and/or the United States and California Constitutions. See Section III.C., supra, incorporated fully herein by this reference thereto.
The highest standard of appellate review also applies because the Court will decide challenges and/or interpretations, inter alia, of (1) California statutes 53069.4(a)(1), 36900, and 36901, (2) the Fines and CCMC for the City’s city forum choice procedures, and (3) Cross- Respondent’s Charter.
42 This Cross-Appeal presents only questions of law. Jamison v.
Department of Transp., 4 Cal.App.5th 356, 362 (2016); Garimendi v.
Executive Life Inc. Co., 17 Cal.App.4th 504, 512 (1993).
De novo review applies whenever the “likelihood of prevailing on the merits depends on a question of pure law rather than upon the evidence to be introduced at a subsequent trial.” Mattson Tech Inc. v.
Applied Materials, Inc., 96 Cal.App.5th 1149, 1159 (2023).
The Independent Review Standard also applies because the appellate court may independently determine the proper interpretation of a statute and are not bound by a trial court’s interpretation. Reid v.
Google, Inc., 50 Cal.4th 512, 527 (2010); Niedermeier v. FCA US LLC, 15 Cal.5th 792, 804 (2024). North Coast Coalition v. Woods, 110 Cal.App.3d 800, 804-804 (1980); Cohen v. Board of Supervisors, 40 Cal.3d 277, 287-289 (1985); Ketchens v. Reiner, 194 Cal.App.3d 470, 474 (1987).
In performing its interpretations of law in accordance with the duties assigned to it by CaConst.artIII§3.5, this appellate court exercises both independent and de novo review.
Finally, the highest standard of review applies because the issues presented "can have practical significance far beyond the confines of the case [now] before the court." Ghirardo v. Antonioli (1994) 8
43 Cal.4th 791, 801 (applying de novo review to the question of whether a transaction met the statutory definition of usury). The rationale for the highest level of review is that "[i]f such questions were effectively removed from the consideration of the appellate courts, the development and clarification of ... important issues ... would be impeded." (Ibid.) The “development and clarification” of the important issues presented for determination by this Cross-Appeal are of obvious statewide practical significance, far beyond the immediate impact on these parties.
VI.
SUMMARY OF THE SIGNIFICANT FACTS
LIMITED TO MATTERS IN THE RECORD.
VI. A.
REGULATORY BACKGROUND.
VI. A. 1.
ADOPTION OF CHARTER CITY STATUS.
In 2016, a majority of Cathedral City voters approved the city’s status change from a general law to a Charter city, effective January 1. 2017.
44 Section 103 of the Charter states in full:
“Fines and Penalties. The City Council may determine the maximum amount of any fine, penalty or forfeiture for violations of a City ordinance or resolution.” (Emphases added.)
Section 104 provides that “the City shall have the power and authority to adopt, make, exercise and enforce all legislation, laws and regulations and to take all actions and to exercise any and all rights, powers, and privileges heretofore or hereafter established, granted or prescribed by any law of the State of California or by any other lawful authority. In the event of any conflict between the provisions of this Charter and the provisions of the general laws of the State of California, the provisions of this Charter shall control.” (Emphases added.)
Section 501 is a “severability” clause.
VI. A. 2.
ADOPTION OF STVR REGULATION.
By Ordinance No. 842 of August 26, 2020, City adopted STVR regulations. Voters approved Measure B on March 2, 2021, upholding the ordinance and confirming the City’s STVR regulations.
Incorporated into the CCMC as Section 5.96, City phased out STVRs in most non-HOA residential zones.
45 On March 23, 2022, without the publication and reading required for passage of ordinances, and without any subsequent incorporation into the CCMC, the City adopted Resolution No. 2022 - 14, which revised previous resolutions setting the STVR-specific administrative fines for violations of CCMC Section 5.96.10 The Resolution was “approved as to form” by City Attorney Eric Vail. The Resolution itself has no severability or “savings” clause. CT Vol. 1, pp. 166 – 168.
Sometime before March 23, 2022, City enacted
CCMC§13.58.020(A) which established city forum choice
administrative fines not to exceed $100 for the first violation, $200 for a second recent repeat violation, and $500 for a third recent repeat violation. CCMC§13.58.020(B) established late payment penalties:
fines 31-to-60 days late (50% penalty) and fines over 60 days late (100% penalty). (Ord. 504 § 2, 1999; Ord. 727 § 1, 2013; Ord. 892, 10/22/2025), CT, Vol. 1, pp. 207 – 210.
10 The City’s earlier STVR-specific administrative fines were also adopted by resolutions, not by ordinances. The use of resolutions instead of ordinances does more than eliminate ordinance procedural requirements of publication and noticed public readings but also results in the resolutions not being incorporated into the CCMC. In that way, Resolutions become invisible to the public.
46 53069.4(a)(1) empowers the legislative authority of a local agency by ordinance to make any violation of any ordinance subject to an administrative fine or penalty.
CCMC§13.65.010 provides that code violations default to infractions unless specified as misdemeanors.
CCMC§5.96.070.B.4, however, states that STVR-specific
ordinance violations “may” be prosecuted as misdemeanors.
CCMC§13.70.030 provides that the decision of misdemeanor or infraction prosecution is left to the sole discretion of the City Attorney.
In summary, current law permits the City’s enforcement of its STVR ordinance to proceed at the City’s unreviewable discretion in the city forum (by an administrative citation) or in the court forum (as a misdemeanor, or, in the sole unreviewable discretion of the City Attorney, as an infraction). As this appellate division observed in its Montanaro Decision, City’s then-unreviewable forum selection power is “subject to abuse.” With the Jarkesy decision, this appellate division may now address that abuse and make reviewable City’s city forum choice under long established principles of Constitutional law.
47 VI.B.
SUMMARY OF RELEVANT
PROCEEDINGS.
On March 7, 2024, City Code Enforcement Officer “J. Fox” served Levik with Citation no. 13900 on which the printed check-off boxes for $100, $200, and $500 13.58.020(A) fines categories were crossed out by hand and a fine of $5,000 was entered by hand. The pre-printed back of the Citation states the 13.58.020(B) 50% and 100% late payment penalties. CT Vol. 1, pp. 17 – 18 and pp. 200 – 201.
On March 7, 2024, Mr. Levik timely filed with the City his Request for an Appeal in the City forum choice. CT, Vol. 1, pp. 203 –205. On April 22, 2025, he timely filed with the City a superseding amended Request for a City forum choice Appeal. CT, Vol. 1, pp. 217 – 220.
Mr. Levik’s amended Request for a City forum choice Appeal includes as defenses that the fines violate (a) his due process rights and (b) the Excessive Fines prohibitions of the United States and California Constitutions. CT, Vol. 1, p 219, at par. 5. Also, for bias and conflict of interest, Mr. Levik objected to the City forum choice hearing officer provided and paid for by Data Ticket, Inc., the
48 company to which City has outsourced the City’s collection of fines, including the fines upheld in City forum choice Appeals by the hearing officers supplied and paid for by Data Ticket, Inc. CT, Vol. 1, p. 217, ¶ 4 and p. 218, ¶ 6.
On May 15, 2024, at his City forum choice appeal hearing conducted via Zoom, Mr. Levik, appearing by telephone, requested the hearing officer, Brian Podolsky, recuse himself on the grounds of bias and conflict of interest. Mr. Podolsky is a sub-contractor of, and paid per hearing by, Data Ticket, Inc., the same California company which collects all fines imposed by the City, including those fines that Mr. Podolsky upholds as the hearing officer in City forum choice appeals. (Fines are not considered to be consumer debts, so neither state nor federal consumer protection laws regulate Data Ticket, Inc.’s collection methods.) When Mr. Podolsky refused to recuse himself, Mr. Levik left the Zoom hearing. The same day, the City served by mail Mr. Podolsky’s decision sustaining the Citation and the Fines.
CT Vol. 1, pp. 20 – 21 and 235 - 236.
On May 31, 2024, Mr. Levik timely filed with the Superior Court his 53069.4 appeal for a de novo review of the Fines. CT, Vol. 1, pp. 12 – 24. The Court granted his request for court fee waiver. CT, Vol. 1, pp. 9 – 11.
49 His 53069.4 appeal states, in pertinent part: “The Appellate Division [of the Superior Court] now has before it the legal issue whether the City' s $ 5,000 fine for the [Alessandra] Montanaro citation violates California statutory limits on fines, fees, and penalties. The Appellate Division also has before it the second legal issue whether the City's $ 5,000 fine for the [Alessandra] Montanaro citation violates the United States' and/or the California' s Constitutional prohibitions on excessive fines, fees, and penalties.
These two ( 2) legal issues in the Montanaro litigation are identical to two ( 2) of the legal issues raised in Mr. Levik' s [City forum choice] Request for Appeal and in his [City’s city forum choice] Amended Request for Appeal.” CT, Vol. 1, p. 12, ll. 15 – 20, par. 10. (Emphases added).
Also on May 31, 2024, Mr. Levik filed a Notice of Related Case listing Montanaro by its Superior Court and Appellate Division case numbers. CT, Vol. 1, pp. 37 – 38.
Upon receiving the May 31, 2024 initial filings, the court’s clerk immediately set the 53069.4 de novo hearing date for July 18, 2024 and assigned the appeal to Judge Manuel Bustamante. CT, Vol. 1, p. 29 and p. 33.
50 On June 14, 2024, Mr. Levik filed and personally served a motion to continue the July 18, 2024 hearing on the grounds, inter alia, that he required additional time to engage an attorney to represent him in court and to initiate economical discovery. CT, Vol. 1, pp. 48 - 70 .
His motion included a RJN of the May 20, 2024 order in Montanaro by this Appellate Division directing the parties there to provide additional briefing on the Excessive Fines issue. CT, Vol. 1, pp. 58 –
59. It was not until June 17, 2024 that City appeared and filed its Answer and Opposition to the Court appeal, to which it appended the record of proceedings in the City. CT, Vol. 1, pp. 71 – 301, Vol. 2, pp. 302 - 317.
On July 2, 2024, City filed an opposition to the motion for continuance. CT, Vol. 2, pp. 329 – 335.
On July 8, 2024, ISO his Motion for Continuance, Mr. Levik filed a RJN of this Appellate Division’s July 5, 2024 per curiam Montanaro Decision. CT, Vol. 2, pp. 336 – 352. CT, Vol. 2, pp. 339 –351.
On July 10, 2024, after oral argument, and while the Montanaro Decision was not final, the trial court denied Mr. Levik’s Motion for Continuance and reconfirmed the July 18, 2026 hearing date. CT,
51 Vol. 2, pp. 365. (By then, and without counsel, it was too late for Mr.
Levik to initiate and complete economical discovery before the hearing date, only eight days away.)
On July 10, 11, and 12, Mr. Levik sent to City w itnesses notices to appear, including, to Tracey Hermosillo, City Clerk. a Notice (and Amended Notice) both to Appear and to Bring Documents regarding Data Ticket, Inc., CT , Vol. 2, pp. 353 – 377. On July 15, 2024, the City filed objections to the Notices to Appear. CT, Vol. 2, pp. 378 – 381.
At the hearing on July 18, 2024, Mr. Levik timely filed a Motion for Judgment of Nonsuit. CT, Vol.2, pp. 382 - 454.
The Motion for Judgment of Nonsuit raises two of the issues included in this Cross-Appeal:
1. That judicial amendment of the Fines, if found to be unlawful under statutes or Constitutions, is impermissible under the Separation of Powers doctrine (CT, Vol. 2, pp. 383 – 384, par. 1); and
2.Alternatively, that the City’s city forum choice deprived Mr.
Levik of due process, statutory protections, and Constitutional rights that are guaranteed to him in a misdemeanor or infraction court forum choice. (CT, Vol. 2, p. 384, par. 2.)
52 By Minute Order of July 18, 2024, the trial court denied Mr.
Levik’s Motion for Judgment of Nonsuit.
In the same Minute Order, however, persuaded by the reasoning of this Appellate Division’s July 5, 2025 Montanaro Decision, and then independently applying Bajakajian’s four factors to determine proportionality, the trial court found that the Fines violate the Excessive Fines prohibitions. The trial court then judicially amended the Fines in two respects: (a) by replacing the maximum $5,000 fine of the Resolution with the 36900(d)(1)(A) maximum infraction fine of $1,500 and (b) by removing the fines’ strict liability. Based upon these two judicial amendments, the trial court ordered Mr. Levik to pay $750, calculated as 50% of the $1,500 maximum fine authorized for infractions under 36900(d)(1)(A). CT, Vol. 2, pp. 448 - 451.
On July 18, Mr. Levik filed (a) a Motion for Reconsideration of the Motion for Nonsuit (CT, Vol. 2, 382 - 421), and (b) a Motion to Vacate Judgment (CT, Vol. 2, 559 - 566).
On September 24, 2024, City filed oppositions to both Motions.
CT, Vol. 2, pp. 543 – 548 (Oppo. To Motion for Reconsideration) and CT, Vol. 2, pp. 550 – 558 (Oppo. To Motion to Vacate).
On September 30, 2024, Mr. Levik filed a Reply to the City’s Opposition to the Motion to Vacate. CT, Vol. 1, pp. 559 – 566.
53 On October 8, 2024, the trial court denied the Motion for Reconsideration. CT, Vol. 2, p. 568.
On October 8, 2024, by separate Minute Order the trial court denied the Motion to Vacate. In this ruling, however, the trial court added: “Please see minute order of July 18, 2024 and CRC
8.115.” [sic]11 Specifically, the ability for a trial court to find persuasive value in an unpublished opinion involving the same defendant and doctrines of law involved in the instant matter. Finally, Petitioner also fails to acknowledge in their moving papers that the issue for the court to decide was very narrow – Whether a warning would have sufficed instead of an excessive fine.” CT, Vol. 2, p. 567. (Emphasis added.).
VII.
BY ITS CITY FORUM CHOICE,
CITY DEPRIVED CROSS-APPELLANT
OF CONSTITUTIONAL AND STATUTORY
SUBSTANTIVE AND PROCEDURAL PROTECTIONS
FROM GOVERNMENTAL OVERREACH
GUARANTEED IN A COURT FORUM CHOICE
11 The correct reference is to CRC 8.11150.
54 The U.S. Constitution acts as a limit on governmental power, designed to protect individual liberty and keep government intervention limited, often framed as keeping government "off the backs of the people." It achieves this through structural limitations, including separation of powers, checks and balances, and the rights reserved to states and citizens.
These limitations were ignored when the Legislature empowered local agencies the authority to enforce misdemeanor ordinances by proceedings in either the city forum choice or the court forum choice, and to obtain identical penalties in either.
Here follows an incomplete inventory of substantive and procedural protections (“Due Process”) lost by the City’s unreviewable selection of city forum choice administrative proceedings in lieu of court forum choice misdemeanor and infraction prosecutions.
In misdemeanor court forum choice (only):
55 1)Assistance of counsel and income-qualified pro bono representation, either by a Deputy Public Defender or, in case of a conflict, by a court-appointed outside attorney12; 2)CCP §170.6 peremptory disqualification of
judge/commissioner;
3)Information of charges;
4)The right to jury trial before an impartial jury ;
5)The right to confront complainants and accusing witnesses; 6)“Beyond a reasonable doubt” standard for conviction;
7)Criminal procedures and rules of evidence;
8)Dismissal “in the furtherance of justice.” Wheeler.
9)Enforceable mandatory disclosure of exculpatory material. 10) Right against self-incrimination.
11) Statutory and constitutional limits on misdemeanor
penalties.
12) The right to an ability-to-pay hearing before imposition of any fine. People v. Kopp (2025) 19 Cal.5th 1.
12 At the trial court, pro bono representation was a significant legal right denied to Cross-Appellant as a result of the City’s selection of its city forum choice instead of the misdemeanor court forum. In a misdemeanor prosecution, Mr. Levik would have been income- eligible for court-appointed representation.
56 13) The right to process to compel attendance of exculpatory witnesses;
14) The right to Court issuance of subpoenas and subpoenas duces tecum to compel trial and pre-trial witness attendance and document discovery and production at trial.
15) The right to a speedy and public trial;
16) The right to court appeal.
In infraction court forum choice:
a)CCP §170.6 peremptory disqualification of
judge/commissioner;
b)Statutory and constitutional limits on infraction penalties.13 c)An ability-to-pay hearing before imposition of any fine.
People v. Kopp (2025) 19 Cal.5th 1.
d)The right to court appeal.
e)The right to Court issuance of subpoenas and subpoenas duces tecum to compel trial and pre-trial witness attendance and document discovery and production.
13 Had the City selected misdemeanor proceedings in the court forum choice and, in the sole discretion of the City Attorney, reduced the court forum choice misdemeanor to an infraction civil proceeding, the statutory limit of $1,500 of 36900 would then have applied – instead of the $5,000 administrative fine.
57 f)The right against self-incrimination.
g)Civil procedures and rules of evidence.
h)Proof by a preponderance of the evidence.
VIII.
THE TRIAL COURT’S
PREJUDICIAL ERRORS.
VIII.A.
PREJUDICIAL ERRORS
BASED ON STATE AND FEDERAL CONSTITUTIONS
AND ON CITY’S CHARTER.
VIII. A. 1.
PREJUDICIAL ERROR BY FAILING TO FIND
CHARTER103 AND THE FINES
VIOLATIVE OF CHARTER103.
Contrary to Charter103 and the Fines, City establishment of administrative fines, specifically STVR ordinance violation fines, is not a “municipal issue.” Charter 103 and the Fines therefore violate the CaConst.artXI.§3(a) and CaConst.artXI§5 limitations on the powers of Charter cities.
The schedule of administrative fines local agencies may legally impose is a “state concern” which pre-empts and supersedes this
58 Charter city’s attempted regulation on its incorrect theory of “home rule” or “municipal concern.” The legislative history of these fines proves beyond doubt that, over decades, the Legislature, through deliberations and enactments and failed enactments, deliberately put into place a complete, cohesive, coherent over-all structure, scheme, or plan establishing the maximum administrative fines that local agencies may lawfully impose for code violations. Sections ))), infra, incorporated fully herein by this reference.
VIII. A. 2.
PREJUDICIAL ERROR BY FAILING TO FIND
53069.4(a)(1). 36900(a), AND 36901
UNCONSTITUTIONAL
FACIALLY AND AS APPLIED.
Under the current laws challenged here by Cross-Appellant, City contends it has unreviewable authority to select enforcement of its STVR ordinance either by administrative citation and fine (the “city forum choice”) or by misdemeanor or infraction criminal court proceedings (the “court forum choice”).
The trial court prejudicially erred in its July 18, 2024 order by failing to find that 53069.4(a)(1), 36900(a) and 36901 are unconstitutional, both facially and as applied, because they
59 unconstitutionally authorize City’s city forum choice for code enforcement, which deprives Cross-Appellant of precious and inalienable constitutional due process and jury trial, evidentiary, statutory, and all other rights to which Cross-Appellant would be guaranteed were the City – seeking the exact same fines – have made the court forum choice.
Jarkesy (U.S. Supreme Court) and Wheeler (California Supreme Court) are both “choice of forum” cases. In Jarkesy, Congress delegated to the Securities and Exchange Commission (“SEC”) both legislative and executive powers: the SEC enacted rules and then enforced them. The SEC had its choice of enforcement forum: by an internal agency hearing or by a civil suit in federal court. The penalties in either were the same: fines. But only the federal court forum guaranteed Mr. Jarkesy his constitutional right to a jury trial.
The take-away from Jarkesy is this: when an agency to which a Legislature has delegated both legislative and executive powers seeks to enforce its “laws,” and the choice of forum for enforcement is between the court that protects constitutional rights and the agency that does not, it is necessary under the U.S. Constitution that the agency choose the court forum for enforcement.
60 This appeal is an even stronger case for application of the Jarkesy rule than Jarkesy. Here, the City’s forum choice deprived Mr. Levik of the entire range of constitutional rights associated with misdemeanor and/or infraction court prosecutions. One of those most fundamental foundational rights lost is the right to a jury trial in a misdemeanor proceeding.
A suggestion of how the California Supreme Court would apply the Jarkesy rule to these facts is found in Wheeler, also a choice of forum case and the factual mirror image of this Cross-Appeal. On a theory of strict liability, the City of Los Angeles prosecuted the elderly Emily Wheeler for the illegal cannabis cultivation on her property that had occurred without her knowledge. The issue presented was whether, by the City’s court forum choice, Mrs.
Wheeler was eligible to obtain dismissal of the prosecution “in furtherance of justice” under Pen.§1385(a). Emily Wheeler v.
Appellate Division of the Superior Court of Los Angeles County (2024) 15 Cal.5th 1193.
Justice Jenkins wrote for the unanimous court:
“Dismissals of criminal actions are permitted ‘in furtherance of justice.’ (Pen. Code, § 1385, subd. (a).) We have held that trial courts evaluating an ‘in furtherance of justice’ dismissal may consider a charged crime's characteristics. Here, we conclude the trial court did not err in considering, amongst other circumstances, defendant and
61 petitioner Emily Wheeler's innocent state of mind when it dismissed misdemeanor charges the parties agree would impose strict liability and which were premised on municipal law that permitted noncriminal sanctions for the least culpable violators. We therefore reverse the judgment of the Court of Appeal, which concluded otherwise, and direct that the dismissal should stand.” Id., at 1194. (Emphases added.)
VIII. A. 3.
THE TRIAL COURT PREJUDICIALLY ERRED
BY COMPARING BAJAKAJIAN’S
THIRD PROPORTIONALITY FACTOR
TO THE WRONG STATUTE.
While the trial court correctly found that the Fines violate the Excessive Fines prohibitions of the United States and California Constitutions, when applying the third Bajakajian proportionality factor (i.e., the comparison of the examined fine with the statutory maximum fine that could have been imposed), the trial court prejudicially erred by comparing the Fines to the 36900(d)(1)(A) maximum $1,500 infraction (court forum choice) fine when it should have compared the Fines to 36901’s applicable default maximum $1,000 statutory administrative fine.
62 VIII. A. 4.
THE TRIAL COURT PREJUDICIAL ERRED
BY FAILING TO STRIKE THE FINES,
AND INSTEAD, IN ERROR,
BY JUDICIALY AMENDING THE FINES
IN VIOLATION OF
THE SEPARATION OF POWERS DOCTRINE.
In violation of the Separation of Powers doctrine, instead of correctly striking the Fines as Excessive, the trial court incorrectly superimposed on the Fines two (2) judicial amendments entirely incompatible with the City’s clear intentions in adopting the Fines.
The Fines should simply have been stricken, not changed by a court acting as an unelected pseudo-legislator.
250 years ago, the Founders, our Nation’s true original originalists, would have found fanciful the mere suggestion that a court has any judicial authority to amend a law that the court has found unconstitutional or violative of statute. Marbury v. Madison (1803) 5 U.S. (1 Cranch) 137.
Yet, for contemporary federal and state courts, it is a common practice to amend challenged statutes, often by severing (discarding)
63 the challenged parts, sometimes by adding words to, or even entirely rewriting, the statute.14
Persuaded by the analysis in the Montanaro Decision, the trial court judicially amended the Fines, ignoring the Fines original intentions, by:
(1). Enacting maximum (not fixed amount) fines, consistent with the Legislature’s practice of setting statutory administrative citation fines as maximums (adjustable) fine amounts.
(2). Accepting 36900’s $1,500 amount as the new and
Constitutionally permitted maximum fine, but only for violations of STVR advertising prohibitions.15
A great problem with judicial amendments – apart from their unconstitutionality fueling criticism of “judicial activism” - is that the amendments remain “shadow amendments” – invisible to the general 14 For a 2016 survey of federal cases in which federal statutes have been judicially amended, as well as the various rationales given for the authority to make these judicial amendments, see Eric Fish, Judicial Amendments of Statutes, 84 Geo. Wash. L. Rev. 3, pp. 564 – 600.Available at https://www.gwlr.org/vol-84-no-3/
15 The correct maximum for Bajakajian’s third factor comparison should have been 36901’s $1.000 maximum administrative fine.
64 public until and unless the amendments are formally adopted by the responsible legislative body, in this case, the City.16 The invisibility to the general public of a judicial amendment increases here because STVR fines are authorized by ordinances but adopted by resolutions which never are incorporated into the City’s Municipal Code. And it is the CCMC – a compilation of City laws - which the public relies upon for information and guidance.
In amending a defective law, the judicial officer attempts to preserve as far as possible the legislative intentions behind the law.
The City clearly intended by its Fines to set a $5,000 fixed and strict liability fine. This is consistent with the City’s challenged Charter which authorizes the City only to establish set strict liability fines, not flexible (maximum) fines.
Attachment 1, Resolution 2025 – 30 of the City of Rancho Mirage, (“RM”) demonstrates why the court should strike the Fines and not assume authority reserved to elected legislative officials. By its Resolution 2025 – 30, RM established a two-tier maximum schedule 16 For a discussion of the criticism surrounding “shadow” amendments, see William J. Aceves, Shadow Amendments, 60 Harv.
J. on Legis. 27 (2023). Available at:
https://scholarlycommons.law.cwsl.edu/fs/411
65 for STVR administrative fines, one (starting at $1,500) for unlawful STVR advertising, a higher one (starting at $5,000) for unlawful STVR operation.17
But Attachment 1 adopts two errors in the Montanaro Decision which this Cross-Appeal seeks to correct:
First, the Bajakajian third factor reference is to 39601 ($1,000), not 39600 ($1,500).
Secondly, 36901 applies universally to all administrative fines for any category of STVR ordinance violations so that there can be no “two-tiers” in fines for advertising and rental operation violations.
The 36901 $1,000 maximum applies to both categories of offense.
City’s Fines lack a ”severability” clause. And the trial court’s two judicial amendments of the Fines are plainly inconsistent with the City’s intentions in setting the Fines: $5,000 and strict liability.
Wheeler.
Cross-Appellant therefore urges the court to decline to legislate and simply strike the Fines.
17 Unlike Cathedral City, Rancho Mirage follows the state Legislature’s practice of setting maximum, not fixed, fines. Setting maximum fines allows cities both to enact lower fines and, in specific cases, to reduce the fine imposed in accordance with the equities.
66 VIII.B.
PREJUDICIAL ERRORS BASED ON STATUTES.
VIII. B. 1.
THE TRIAL COURT PREJUDICIALLY ERRED
BY FAILING TO FIND THAT THE FINES
VIOLATE 36901’S $1,000 LIMIT SPECIFIC TO
CITY FORUM CHOICE ADMINISTRATIVE FINES.
.A violation of a city or county ordinance is a misdemeanor unless made an infraction by local ordinance. City specifically allows STVR ordinance violations to be prosecuted as misdemeanors.
Misdemeanor and infraction prosecutions for STVR ordinance violations are brought by the City Attorney in the name of City in the court forum choice. The City Attorney has unreviewable discretion to prosecute misdemeanors as infractions. When the misdemeanor prosecution is reduced to an infraction, 36900 limits the fine to $1,500.
But the challenged 64069.4(a)(1) purports to give cities an alternative to the misdemeanor and infraction court forum choice:
enforcement by issuing administrative citations in the city forum choice. When prosecuted as a misdemeanor, fines and incarceration are set by Pen.§18. When violations of STVR ordinances are
67 prosecuted as an infraction, 36900(d)(1)(A) limits the first offense infraction fine to a maximum of $1,500.
The trial court prejudicially erred when it failed to find that the Fines violate 36901’s specific statutory $1,000 maximum administrative fine, the maximum fine applicable when the offense has no other specified statutory fine limit. 36901 plainly limits city forum choice administrative fines to a $1,000 maximum for violation of any ordinance not otherwise limited by other statutes. 36901 is the “default” fine that closes any gaps in, and completes, the Legislature’s carefully devised city forum choice fines framework.18 See Sections IX and X, infra, incorporated herein by this reference. 18 As used here, “default” describes a general or “catch-all” statutory administrative fine limit which becomes applicable only when there is not already a statutorily established specific administrative fine limit for the specific offense. 36901 completes the Legislature’s over-all administrative fines scheme by eliminating the possibility of “loop- holes” – like the $5,000 “loophole” incorrectly asserted by City.
68 VIII. B. 2.
THE TRIAL COURT PREJUDICIALLY ERRED
BY MAKING TWO JUDICIAL AMENDMENTS,
BOTH VIOLATING THE SEPARATION OF POWERS
DOCTRINE, WHEN THE TRIAL COURT
WAS REQUIRED TO STRIKE THE FINES.
In violation of the Separation of Powers doctrine. the trial court prejudicially erred when it failed simply to strike the Fines as violative of 36901’s specific statutory default maximum $1,000 administrative fine, but, instead, made two (2) judicial amendments to the Fines inconsistent with the Fines clear and plain intentions. The trial court: (a) reduced the fixed $5,000 fine to a maximum fine of up-to $1,500 (using, incorrectly, as the Bajakajian comparable statute, the $1,500 maximum infraction 36900 statutory fine instead, correctly, of the maximum $1,000 36901 statutory fine), and (b) eliminated strict liability bymaking the fine a maximum fine subject to case by case reduction based on the facts and equities.
69 VIII. B. 3.
ALTERNATIVELY, ARGUENDO,
IF THESE JUDICIAL AMENDMENTS
ARE CONSTITUTIONAL,
THE TRIAL COURT PREJUDICIALLY ERRED
BY INCORRECTLY BASING THE 50% FINE
ON 36900(d)(1)(A).
Assuming, arguendo, that the trial court was permitted by the Separation of Powers doctrine to make its two (2) judicial amendments to the Fines rather than striking them on any of the grounds asserted by this Cross-Appeal, the trial court prejudicially erred when it ordered a fine of 50% of the 36900(d)(1)(A) $1,500 infraction (court forum choice) STVR fine (that is, $750) instead of 50% of the 36901 $1,000 default administrative (city forum choice) fine (that is, $500).
VIII. B. 4.
ALTERNATIVELY, THE TRIAL COURT, BY
MISINTERPRETING 53069.4,
PREJUDICIALLY ERRED BY DENYING
MR. LEVIK’S MOTION FOR CONTINUANCE
TO CONDUCT ECONOMIC DISCOVERY.
70 Before City’s initial appearance, Mr. Levik filed and served City by personal service his motion for continuance.
By its July 10, 2024 order denying Cross-Appellant’s motion for continuance, the trial court prejudicially erred, by misinterpreting 53069.4 as not permitting a 53069.4 appellant prior to the de novo appeal hearing to initiate and complete economical discovery.
As a result of the July 10, 2024 denial of a continuance, eight days later at the July 18, 2024 de novo hearing. Mr. Levik was unable to present evidence obtainable through economic discovery to support his Due Process objections to Brian Podolsky, the city forum choice hearing officer, selected and provided, his services paid for, by Data Ticket, Inc., the City’s outsourced fines collection agent.
IX.
THE LEGISLATIVE HISTORIES OF 36900 AND 36901
CONFIRM THAT THE FINES VIOLATE
36901’s DEFAULT $1,000 MAXIMUM
ADMINISTRATIVE FINE
AND THAT 36901, NOT 36900,
IS THE COMPARABLE STATUTE
FOR BAKAJANIAN’S THIRD
PROPORTIONALITY FACTOR.
71 IX.A.
INTRODUCTION TO LEGISLATIVE HISTORIES.
As demonstrated by the Legislative history provided in this Section, when, under 53069.4, a city imposes, in its administrative city forum choice (where the violation is not being enforced by misdemeanor or infraction prosecution), and there is no state statutory fine specified fine for the violation, 36901 limits the administrative fine to $1,000. $1,000 is the “default” fine that completes the statutory fines schedule by eliminating “loopholes.” 36901 ensures that, legally, when it comes to state regulation of administrative fines, “all bases are covered.”
A local entity may not take the benefits of state-provided administrative procedure and authority with one hand while pushing away state-provided limits on fines with the other hand. [See Wilson v. Beville (1957) 47 Cal.2d 852, 857 9 [(“where liability is imposed by statute the method or regulation of the enforcement of the liability such as claim filing and limitation of actions is not a municipal affair controllable by city charter”)] (fn. omitted.)] Here, state law provides but also limits – explicitly conditions - a city’s authority to impose city forum choice administrative fines in lieu of court forum choice enforcement.
72 IX. B.
LEGISLATIVE HISTORY OF EARLY RELEVANT
STATUTORY ENACTMENTS.
The Legislature enacted section 36900 in 1949, with the maximum city-imposed fines for repeat offenses set at $500. (Stats. 1949, ch. 79, § 1, p. 151.) At that time, every violation of a city ordinance was a misdemeanor. (Ibid., codifying Gov. Code, § 36900.) In 1974, the Legislature provided that a violation of a city ordinance is a misdemeanor or an infraction and set maximum fine amounts for infractions at $50 for a first violation, $100 for a second violation, and $250 for each additional violation within one year. [Stats. 1974, ch. 677, § 1, p. 1543, codified as amended at Gov. Code, § 36900, subd. (b).] In 1983, the Legislature doubled those amounts. (Stats. 1983, ch. 1092, § 138, p. 4000.)
In 1992, the Legislature decriminalized parking violations and established an administrative system for adjudicating contested parking tickets. (Stats. 1992, ch. 1244, §§ 1, 7, pp. 5918 & 5923- 5924.) It found that criminal penalties were not appropriate for parking violations and that the safeguards attached to criminal prosecutions were not necessary for fair enforcement of such violations. (Stats. 1992, ch. 1244, § 1(b), p. 5918.)
73 In 1995, the Legislature considered a bill to expand the city forum choice administrative citation process so as to include other low-level violations, “such as false burglar alarms and the early setting out of yard wastes.” [Sen. Com. on Crim. Proc., Analysis of Sen. Bill No. 814 (1995-1996 Reg. Sess.) Apr. 18, 1995, p. 3.)]19
As the sponsor explained, the legislative goal was to take issues out of the courts, thus “short circuiting the process.” (Ibid.) The bill would “allow administrative citations to closely mirror the parking citation program.” [Assem. reading analysis of Sen. Bill No. 814 (1995-1996 Reg. Sess.) as amended Aug. 21, 1995, p. 2.]20 The enacted bill provides that “[t]he legislative body of a local agency, as the term ‘local agency’ is defined in Section 54951, may by ordinance make any violation of any ordinance enacted by the local agency subject to an administrative fine or penalty.” [Stats. 1995, ch. 898, § 2, p. 6879, codifying Gov. Code, § 53069.4, subd. (a)(1).] The definition of “local agency” includes cities. 54951.
19 http://leginfo.ca.gov/pub/95-96/bill/sen/sb_0801-
0850/sb_814_cfa_950223_103816_sen_comm.html
20 http://leginfo.ca.gov/pub/95-96/bill/sen/sb_0801-
0850/sb_814_cfa_950823_174651_asm_floor.html
74 “Where the violation would otherwise be an infraction, the administrative fine or penalty shall not exceed the maximum fine or penalty amounts for infractions set forth in Section 25132 and subdivision (b) of Section 36900.” [53069.4, subd. (a)(1)] (Emphases added].
The Legislature limited administrative fines that would “otherwise” be an infraction because administrative forum fines are civil, not criminal, and the limits set forth in 36900, subd. (b) are limits on (criminal) infractions “prosecuted by city authorities” and “punishable” by fine. [36900(a), (b).]21
Thus, if the Legislature had not specified that section 36900’s limits on criminal infractions also apply to administrative fines for violations that would “otherwise” be an infraction, the limits set forth in subdivision (b) of section 36900 would not apply in city forum choice administrative proceedings.
The Legislature did not need to specify that the limits set forth in section 36901 would apply in administrative proceedings, however, 21 CCMC delegates to the City Attorney exclusive authority for ordinance enforcement to bring a criminal misdemeanor proceeding and then reduce the charges to an infraction. In the court forum choice’s STVR infraction proceeding, the 36900(d)(1)(A) $1,500 maximum would apply.
75 because section 36901 is broadly worded so that it may apply in any proceeding involving a “fine.” 36901 provides clarification that a city’s “fine” shall not exceed $1,000. 53069.4 allows a “fine,” and such fines are subject to the limit on any city-imposed “fine” under section 36901. No published decision has ever held that the $1,000 limit set forth in section 36901 does not apply to the city administrative forum.
IX.C.
SUBSEQUENT LEGISLATION CONFIRMS 36901’s
$1,000 MAXIMUM FINE APPLIES TO
CITY FORUM CHOICE ADMINISTRATIVE FINES
WHERE NO OTHER STATUTE ESTABLISHES
A MAXIMUM FINE FOR THE OFFENSE AT ISSUE.
In recent years, the Legislature has amended the Government Code several times to enable cities to impose higher fines for ordinance violations by city forum choice administrative enforcement.
These amendments confirm that statutory law imposes limits on city-imposed fines because the amendments would have been unnecessary if cities already were given by statute the power to impose unlimited fines in city forum choice administrative proceedings.
76 IX.C. 1.
FAILED ATTEMPTS TO INCREASE BY STATUTE
36901’S $1,000 DEFAULT ADMINISTRATIVE FINE
RECONFIRM THE APPLICABILITY TO CITY
OF THE STATUTORY DEFAULT FINE.
In the years prior to 2020, the COVID-19 pandemic, along with the convenience of online platforms such as Airbnb and VRBO, increased the use of short-term vacation rentals. The platforms were especially popular in the desert cities where several highly attended music festivals attracting crowds of young visitors are held annually in Coachella.
After a shooting at an Airbnb rental in Orinda on October 31, 2019, Senator Steve Glazer introduced Senate Bill No. 1049 (2019- 2020 Reg. Sess.) to increase the maximum fines that cities may impose for violating short-term rental ordinances.22 As introduced, the Legislative Counsel’s Digest noted that cities may not impose fines in excess of $1,000. The bill proposed creating a new statute, 22Julia Baum, Glazer bill would raise fines on short-term rentals, Danville San Roman Tri-Valley News (July 5, 2020).
https://www.danvillesanramon.com/news/2020/07/05/glazer-bill- would-raise-fines-on-short-term-rentals/ (as of May 20, 2026).
77 section 36902, to provide: “[n]otwithstanding Section 36901 or any other law, a city legislative body may impose a fine of up to five thousand dollars ($5,000) for each violation of a short-term rental ordinance.” [Sen. Bill No. 1049 (2019 -2020 Reg. Sess.)] (as introduced Feb. 18, 2020.)
In its comments on the proposed bill, the professional staff of the Senate Committee on Governance and Finance argued that the proposed new statute would not allow cities to impose administrative fines of up to $5,000 “because only the fines stated within Government Code § 36900 can be imposed administratively.” [Sen.
Com. on Governance and Finance, Analysis of Sen. Bill No. 1049 (2019-2020 Reg. Sess.) May 26, 2020, p. 4.]23 The staff argued that any violation that was not an infraction subject to the limits set forth in section 36900 had to proceed in court. (Ibid.) Accordingly, the staff advised the committee that it “should instead amend the existing Government Code § 36900 to ensure the fines are imposed administratively.” (Ibid.) The committee heeded that advice and 23 https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_i d=201920200SB1049
78 revised the proposed bill to amend section 36900. (Sen. Bill No. 1049 (2019-2020 Reg. Sess.) (as amended Aug. 25, 2020.)
In the next legislative session, Senator Glazer reintroduced his bill as Senate Bill No. 60 (2021-2022 Reg. Sess.), which was a near verbatim copy of the previous session’s Senate Bill 1049. The legislative history demonstrates that the sponsor and the bill’s supporters continued to believe that without a legislative amendment, a city could not assess a fine in excess of $1,000 in any type of proceeding. They explained that when it came to short-term rental ordinances, “[u]nfortunately, the fines cities are allowed to levy under current law are too low to deter violations.” (Sen. Com. on Governance and Finance, Analysis of Sen. Bill No. 60 (2021-2022 Reg. Sess.) Mar. 8, 2021, p. 4.)24
“In order to improve the safety of our citizens,” the comments explain, “this bill would increase fines that cities and counties are
24 https://leginfo.legislature.ca.gov/faces/billAnalysis Client.xhtml?bill_id=202120220SB60
79 allowed to impose on short-term rental hosts who violate local property rental laws.” (Ibid.)
The League of California Cities agreed that cities needed legislative authority to impose higher fines. It commented that the “fines cities can levy under current law are often too low to deter violations and at times are considered a part of doing busines s for those who set out to violate local short-term rental ordinances.” (Assem. Com. on Local Government, Analysis of Sen. Bill No. 60 (2021-2022 Reg. Sess.) June 8, 2021, p. 4.)25
After receiving advice from professional staff, S enate and Assembly committee reports, and comments from the League of California Cities - all explaining that cities lacked authority to impose sufficient fines for violation of short-term rental ordinances - the Legislature enacted Senate Bill 60 as an urgency statute. (Stats. 2021, ch. 307, § 3, eff. Sept. 24, 2021.) The urgency statute, for the first time, raised the maximum fine for a violation of a short-term rental ordinance that is an infraction to $1,500 for a first violation, $3,000
25 https://leginfo.legislature.ca.gov/faces/billAnalysis Client.xhtml?bill_id=202120220SB60
80 for a second violation, and $5,000 for each additional violation within one year of the first violation. [Id., § 2, codified at Gov. Code, § 36900, subd. (d).]
As the above legislative history makes clear, by a series of unenacted legislation, the Legislature reconfirmed that the $1,000 limit set forth in section 36901 is the default maximum applicable to all city forum choice administrative proceedings. Otherwise, the unsuccessful efforts to amend section 36900 would have been unnecessary, a waste of time and effort. The purpose of the failed proposed legislation was to raise the maximum administrative fine that cities could impose in the city forum choice for STVR ordinance enforcement. If cities were already empowered to impose unlimited fines in administrative proceedings, then there would be no reason for the Legislature’s (failed) attempt to enact Senate Bill 60, and its passage would have been unnecessary and virtually of no significance. Notably, the Legislature believed Senate Bill 60 was necessary precisely because, without it, cities could not impose a fine in excess of $1,000 for a STVR ordinance violation.
81 X.
THIS CHARTER CITY’S ADOPTION OF
THE LEGISLATURE’S STATEWIDE UNIFORM FINES
FOR VIOLATIONS OF LOCAL AGENCIES’
CANNABIS ORDINANCES
CONTRADICTS CITY’S CLAIM
OF “LOCAL RULE” EXEMPTION FOR CITY’S
VIOLATION OF 36901’S $1.000 MAXIMUM.
X.A.
LEGISLATIVE HISTORY OF CITY’S CANNABIS
ORDINANCE FINES.
The Legislature’s recent cannabis -related amendments to section 53069.4, and their legislative history, further demonstrate that - unless a different statute creates a different maximum fine for a specific category of violation - section 36901 limits city-imposed administrative city forum choice fines to $1,000 – including Charter city forum choice fines. Otherwise stated, the cannabis fines established by the Legislature demonstrate that fine schemes are governed by statutes, not by Charter city ordinances and resolutions.
The Legislature followed the Attorney General’s specific advice that any amendment of 53069.4 should limit county fines to ensure
82 uniformity with limits on city fines. Accordingly, as explained below, both the Attorney General and the Legislature hold the same interpretation of 36901 as Cross-Appellant here – that 36901’s $1,000 fine is the default maximum administrative fine applicable in any Charter city forum choice STVR enforcement proceedings.
In 2016, California voters approved Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act, to legalize cultivation of marijuana, subject to licensing and other regulation. [Prop. 64, as approved by voters, Gen. Elec. (Nov. 8, 2016)] (“Proposition 64”).
Legalizing marijuana created new code enforcement issues for cities.
Although Proposition 64 included fines for violating marijuana regulations, new economic incentives to grow marijuana meant that some localities reportedly had difficulty enforcing building and safety standards. (Sen. Com. on Governance and Finance, Analysis of Assem. Bill No. 2164 (2017-2018 Reg. Sess.) June 25, 2018, pp. 3-
4.)26
In 2018, concern about illegal cultivation of marijuana led the Legislature to authorize localities to impose administrative fines for
26 https://leginfo.legislature.ca.gov/faces/billAnalysis Client.xhtml?bill_id=201720180AB2164
83 ordinance violations immediately, without a cure period, if the violation resulted from or facilitated the illegal cultivation of cannabis. [Stats. 2018, ch. 316, § 1, codified at 53069.4(a)(2)(B).] Commentators noted, however, that new authorization might have only marginal deterrent effect, stating, “the amounts that local agencies can impose for violations of local ordinances [are] limited to $1,000 per violation — significantly less than the fines imposed under [state law].” [Sen. Rules Com., 3d reading analysis of Assem. Bill No. 2164 (2017-2018 Reg. Sess.) July 3, 2018, p. 6.]
In 2020, the Court of Appeal issued its decision on appellate jurisdiction over appeals from a county-imposed administrative county forum fine in County of Humboldt v. Appellate Division of Superior Court (2020) 46 Cal.App.5th 298. Humboldt County had imposed substantial administrative county forum fines on alleged marijuana growers under its county code; the court stated that “[u]nless a code violation is designated an infraction, section 53069.4 places no limit on the amount the local agency can assess for the violation.” (Id. at p. 312.) However, 36901 applies to cities, not counties, and no parallel statute limits fines that a county may impose.
Therefore, County of Humboldt does not address the issue here:
whether 36901 limits city forum choice fines.
84 In 2023, the Legislature passed Assembly Bill No. 1684 (2023- 2024 Reg. Sess.) to strengthen local enforcement of cannabis laws and also reduce the disparity in maximum fines that counties and cities, respectively, could impose. To strengthen enforcement, it authorized local entities to declare that a violation of state cannabis law is a local public nuisance subject to immediate administrative city forum choice fines. [Stats. 2023, ch. 477, § 1, codified at 53069.4, subd. (a)(2)(B).] Moreover, in the wake of the County of Humboldt decision, the Legislature recognized that it had treated counties and cities differently. Attorney General Rob Bonta explained that AB 1684 places a limit on fines that may be immediately imposed to ensure that fines are applied uniformly across the state. While the Government Code places no express cap on fines that may be imposed by county ordinances, there are limits on the amounts of fines that may be imposed by cities and for misdemeanors generally (a violation of a city or county ordinance is a misdemeanor unless made an infraction by local ordinance). Fairness and the principles of substantive due process persuaded the Legislature that fines imposed for misdemeanor violations of a county ordinance should be subject to the same limitations as violations of a city ordinance. [Assem. Floor Analysis
85 of Assem. Bill No. 1684 (2023-2024 Reg. Sess.) Sept. 12, 2023], p. 3, quotation marks omitted.)27
Accordingly, the Legislature amended the law to provide that “[a]dministrative fines or penalties that are immediately imposed pursuant to an ordinance adopted under subparagraph (B) shall not exceed one thousand dollars ($1,000) per violation and shall not exceed ten thousand dollars ($10,000) per day.” [Stats. 2023, ch. 477, § 1, codified at 53069.4, subd. (a)(2)(D).] This provision was enacted to ensure that limits on immediate administrative fines applied to counties as well as cities.
XI.
CONCLUSION AND PRAYER.
Since July 5, 2024, the date of this court’s Montanaro
Decision, fully aware that its STVR ordinance violation Fines are constitutionally suspect, City has continued – proverbially - to “shoot fish in a barrel,” filling its municipal coffers with ill-gotten $5,000 (and higher) violation fines exacted from Cathedral City property owners, self-representing because attorney fees make it impractical to
27 https://leginfo.legislature.ca.gov/faces/billAnalysis Client.xhtml?bill_id=202320240AB1684
86 retain counsel to fight the City’s strategically-set $5,000 fines. When recourse is sought through a city -level appeal, due process is grossly violated in kangaroo hearings conducted by individuals put there and paid for by the City’s fines collection agency. Some of the forced tributes are taken from individuals who own property in the City but vote elsewhere and thus have no influence on City Council politics.
Cited property owners are never informed by the City of their right to be free of Excessive Fines, nor that the Eighth Amendment issue is pending in this appeal. Nor has the City enacted the process required of it by 36900(e) to inform cited parties of their right to an income- qualified reduction of fines.
In its Montanaro Decision., this court presciently expressed its observation and deep concern that the City’s forum choice could be “subject to abuse.” Shortly after this court took Montanaro under submission, the U.S. Supreme Court published its Jarkesy decision.
By the combination of Jarkesy and Wheeler, this court now has the legal analytical framework necessary to place constitutional and statutory guard rails around the forum choices that this, and many other California local agencies, make daily.
The same fine imposed for the same STVR advertising violation by the same City returns to the same court by this appeal, but with an
87 entirely different trial court posture. This time, a citizen’s constitutional and statutory challenges to the Fines are preserved and non-forfeited and will finally be heard and decided on the merits.
Wherefore, Cross-Appellant respectfully requests this appellate court issue the declarations, interpretations, determinations, decisions, and orders requested by his Cross-Appeal.
Respectfully submitted,
May 21, 2026 Richard S. Levik
ATTACHMENT “1”
TO CROSS-APPELLANT RICHARD S. LEVIK’S
BRIEF ON THE MERITS
RESOLUTION 2025-30
OF THE CITY OF RANCHO MIRAGE, CALIFORNIA
DATED AND EFFECTIVE
JULY 17, 2025
RESOLUTION NO. 2025-30
A RESOLUTION OF THE CITY OF RANCHO MIRAGE, CALIFORNIA, ADOPTING A
TIER-BASED SCHEDULE OF FINES REGARDING VIOLATION OF SHORT-TERM
RENTAL REGULATIONS, AND FINDING THE ACTION EXEMPT FROM THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT
WHEREAS, the City of Rancho Mirage ("City") is a charter city and a municipal corporation of the State of California, and recognized as a political subdivision of State of California for certain purpose; and
WHEREAS, upon a duly noticed public hearing, the City Council adopted Ordinance No. 1225 (the "Enabling Ordinance"), amending Section 17.30.270 (Short Term Rentals) of Chapter 17.30 (General Property and Use Standards) of Title 17 Zoning) of the City of Rancho Mirage Municipal Code), providing for a schedule of fines to be established by resolution of the City Council; and WHEREAS, the City desires to establish a tier-based schedule of fines ("Schedule of Fines", as set forth in more detail in Exhibit "A", attached hereto and incorporated herein by reference, to address the nature and extent of the underlying offense and harm caused; and
WHEREAS, the City generally prohibited short-term rentals from operating and/or advertising in the City in or around October 2021. However, the City continues to monitor and cite illegal operating and/or advertising short-term rentals; and WHEREAS, the illegal operation of short-term rentals causes significant neighborhood disruption, often leading to noise complaints, parking issues, and general nuisances, of all of which directly impact the peace and tranquility of residential neighborhoods; requires increased City resources, often requiring a response from Code Compliance officers and/or the Sheriffs Department, resulting in hours of staff time for investigation, documentation, and enforcement; increased legal and administrative costs, especially where there are repeat and/or egregious violations, requiring City Attorney time, administrative proceedings, and hearings all at the City, and therefore taxpayer's, expense; risks of large unauthorized events, where a short-term rental host holds large gatherings, parties or other events which can cause unnecessary use of public safety resources; and undermines the City's efforts towards increasing housing availability, as it results in loss of long-term housing availability, contrary to local housing goals and state mandates; and
WHEREAS, moreover, the City is located within the Coachella Valley, which holds numerous large events throughout the year, including Coachella Valley Music and Arts Festival, Stagecoach Festival, and many sporting events and/or concerts, drawing people into the valley from around the world. As Rancho Mirage is centrally located in the Coachella Valley and has large private residences, residences in Rancho Mirage are a popular location for large illegal gatherings. Many of these large illegal gatherings pay tremendous sums of money to rent these properties, sometimes illegally offered at an hourly rate; and
1 words of this Resolution as hereby adopted shall remain in full force and effect.
SECTION 6. REPEAL OF CONFLICTING PROVISIONS.
That all the provisions heretofore adopted by the City that are in conflict with the provisions of this Resolution are hereby repealed.
SECTION 7 . EFFECTIVE DA TE.
That this Resolution shall take effect immediately upon the effective date of the Enabling Ordinance.
SECTION 8. CERTIFICATION.
That the City Clerk shall certify to the passage and adoption of this Resolution and enter it into the book of original resolutions.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3 PASSED, APPROVED AND ADOPTED this 17th day of July, 2025.
ATTEST:
Kristie Ramos, City Clerk
APPROVED AS TO FORM:
F. ,-Colin Kirkpatrick, City Attorney
u~_.r, Wt-"cl\lf( No1, 1\J \ .I\--., '::.,t·t,rl.. Ct ·•t i><-\\ct ('{.\../ 4 EXHIBIT "A"
SCHEDULE OF FINES
Violation of Rancho Mirage Municipal Code Section 17.30.270 (Short-Term Rentals), or any subsequently enacted Municipal Code provision, establishing a penalty for violation of short-term rental regulations, shall be subject to the following schedule of fines:
Operating short-term rental1:
A fine not exceeding Five Thousand Dollars ($5,000) for the first violation; A fine not exceeding Ten Thousand Dollars ($10,000) for a second violation of the same ordinance within a year.
Advertising and/or offering for rent:
A fine not exceeding One Thousand Five Hundred Dollars ($1,500) for the first violation; A fine not exceeding three thousand dollars ($3,000) for a second violation of the same ordinance within a year;
A fine not exceeding five thousand dollars ($5,000) for each additional violation of the same ordinance within one year of the first violation.
1 Rancho Mirage Municipal Code Section 17.30 .270(8) provides that "[o]pe ration of short-term rental includes advertising, offering for rent , or agreeing to rent , a short-term rental , regardless of whether a person actually occupies the short-term rental. E ach such action , and each day such operation persists, is a separate violation of this section ." " Operating " for purposes of this Schedule of Fines does not include the advertising or offering for rent. This Schedule of Fines set forth a separate fine for the violation of illegal advertising and/o r offering for rent. 5 CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE )
CITY OF RANCHO MIRAGE )
I, Kristie Ramos, City Clerk of the City of Rancho Mirage, California, do hereby certify that Resolution No. 2025-30 was duly adopted by the City Council of the City of Rancho Mirage, California at a regular meeting thereof held on the 17th day of July 2025, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
Downs, Fromberg Edelstein, Mallotto, O'Keefe, Weill.
None.
None .
None .
6 Kristie Ramos
City Clerk
RECEIVED
Superior Court of California
County of Riverside
6/8/2026
C. Tanner
Electronically Filed
RICHARD S. LEVIK
GOV. § 53069.4 APPELLANT, CROSS -APPELLANT,
AND RESPONDENT, INPROPRIA PERSONA
68425 CORTA ROAD, CATHEDRAL CITY, CA 92234
(310) 871-7879
[email protected]
June 8, 2026
The Hon. Marie E. Wood, Presiding Justice
Appellate Division of the
Superior Court of the State of California
For the County of Riverside
4050 Main Street
Riverside, California 92501
Electronically Filed via eSubmit
See attached Proof of Service
Including Service required by
Rule 8.29(c)(1),
California Rules of Court.
Re:
CITY OF CATHEDRAL CITY, Gov. § 53069.4 Respondent/Appellant/Cross-Respondent vs.
RICHARD S. LEVIK, Gov. § 53069.4 Appellant /Cross-Appellant/Respondent; Appellate Division of the Superior Court of California for the County of Riverside, Case No.
APRI2400126.
Status:
Mr. Levik's overlong Brief on the Merits,
Submitted on May 21, 2026,
Was ordered accepted for filing on May 27, 2026.
No date for oral argument has been set
Until cross -appeals' briefing schedule is completed.
Rule 8.254, California Rules of Court (New Authorities).
Dear Presiding Justice Wood,
In compliance with Rule 8.254(a), California Rules of Court ("New Authorities"), Richard S. Levik hereby informs the Appellate Division, Superior Court of California, County of Riverside, by this letter of the following new California Supreme Court authority (hereafter, "the new authority"), which is identified only by citation in compliance with Rule 8.254(b):
1 J.O. v. Superior Court (2026) 19 Cal.5th 1 (decided May 28, 2026) (California Supreme Court Docket No. S287285) (Separation of Powers decision).
In compliance with Rule 8.254(b), the issues on appeal to which the new authority is relevant are found at each of the following Sections in Cross -Appellant's Brief on the Merits:
Section
Beginning Page
V.
p. 41.
VII.
p. 53.
p. 57.
VIII.
VIII. A.
p. 57.
VIII. A. 1.
p. 57.
VIII. A. 2.
p. 58.
VIII. A. 4.
p. 62.
VIII. B. 2.
p. 68.
XI.
p. 85.
In compliance with Rule 8.254(c), this letter is served and filed (1) before this Court files its opinion and (2) as soon as possible after Appellant learned of the new authority. Appellant learned of the new authority (which was decided on May 28, 2026) on or shortly after May 28, 2026, and this letter therefore is timely served and filed on this June 8, 2026.
Respectfully submitted,
Richard S. Levik
In propria persona
Service as shown on attached Proof of Service
2 1
RICHARD S. LEVIK
GOV. § 53069.4 APPELLANT, CROSS-APPELLANT,
AND RESPONDENT, IN PROPRIA PERSONA
68425 CORTA ROAD, CATHEDRAL CITY, CA 92234
(310) 871-7879
[email protected]
June 10, 2026
The Hon. Marie E. Wood, Presiding Justice Electronically Filed via eSubmit Appellate Division of the See attached Proof of Service Superior Court of the State of California Including Service required by For the County of Riverside Rule 8.29(c)(1),
4050 Main Street California Rules of Court.
Riverside, California 92501
Re: CITY OF CATHEDRAL CITY, Gov. § 53069.4 Respondent/Appellant/Cross-Respondent vs. RICHARD S. LEVIK, Gov. § 53069.4 Appellant /Cross-Appellant/Respondent.
Status:
Mr. Levik’s overlong Brief on the Merits Submitted on May 21, 2026, Was ordered accepted for filing on May 27, 2026.
No date for oral argument has been set
Until cross-appeals’ briefing schedule is completed.
This is the second New Authorities letter
Submitted by Cross-Appellant.
Rule 8.254, California Rules of Court (New Authorities).
Dear Presiding Justice Wood,
In compliance with Rule 8.254(a), California Rules of Court (“New Authorities”), Richard S. Levik hereby informs the Appellate Division, Superior Court of California, County of Riverside, by this letter of the following new United States Supreme Court authority (hereafter, “the new authority”), which is identified only by citation in compliance with Rule 8.254(b):
FCC v. AT&T, Inc. (2026) 608 U.S. ____ (decided June 4, 2026) (United States Supreme Court Docket No. 25-406).
2 In compliance with Rule 8.254(b), the issues raised in Cross-Appellant’s Brief on the Merits to which the new authority is relevant are found therein in all discussions of Securities and Exchange Commission v. Jarkesy (2024) 144 S.Ct. 2017, including, but without limitation, at the following pages of Cross-Appellant’s Brief on the Merits:
Page
p. 33.
p. 46
p. 59.
p. 60.
p. 86.
In compliance with Rule 8.254(c), this letter is served and filed (1) before this Court files its opinion and (2) as soon as possible after Appellant learned of the new authority. Appellant learned of the new authority (which was decided on June 4, 2026) on or shortly after June 4, 2026, and this letter therefore is timely served and filed on this June 10, 2026.
Respectfully submitted,
Richard S. Levik
In propria persona
Service as shown on attached Proof of Service
3 PROOF OF SERVICE
Gov. § 53069.4 Appellant /Cross-Appellant/Respondent
RICHARD S. LEVIK
Riverside Superior Court Appellate Division,
Case No. APRI2400126
(Appeal from Riverside Superior Court,
Case No. CVPS2403242).
I, David S. Koslow, Declarant, state and declare:
1. At the time of service, I was over eighteen (18) years of age and not a party to this appeal. My home address is 30309 Keith Avenue, Cathedral City, California 92234.
2. On June 10, 2026, I served a true copy of Cross-Appellant Richard S. Levik’s (second) New Authorities Letter, combined with this Proof of Service (together, “the document”), on the City of Cathedral City (“City”) in the above-referenced appeal before the Appellate Division of the Superior Court of California for the County of Riverside, Case No. APRI2400126, by sending a true copy of the document in PDF format as an attachment to my email sent from my email address of [email protected] to the attorneys for Cathedral City as follows:
a. Eileen Ollivier to [email protected];
b. Brandon Sanchez to [email protected];
c. Eric Vail to [email protected]; and
d. Algeria Ford at [email protected].
After waiting a reasonable period of time after each email transmission, I did n ot receive any e-message transmission or other indication that any of the transmissions had been unsuccessful.
4 3. Also on June 10, 2026, I enclosed one copy of the document in each of three (3) sealed envelopes and deposited each sealed envelope with the U.S. Postal Service with the postage fully pre-paid, with the envelopes addressed as follows:
a. Attorney General for the State of California
300 S. Spring Street, Suite 1702, Los Angeles, CA 90013 b. Riverside County District Attorney
3960 S. Orange Street, Riverside, CA 93501
c. Clerk, Riverside County Superior Court, Palm Springs Courthouse For The Honorable Manuel Bustamante, Department PS 2
3255 E. Tahquitz Canyon Way, Palm Springs, CA 92262
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 10th day of June, 2026, at the City of Cathedral City, in the County of Riverside, in the State of California.
David S. Koslow, Declarant