WARREN M. LENT et al. v. CALIFORNIA COASTAL COMMISSION
B292091
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
Filed 4/5/21
CERTIFIED FOR PUBLICATION; (Lоs Angeles County Super. Ct. No. BS167531)
APPEAL from a judgment of the Superior Court of Los Angeles County. James C. Chalfant, Judge. Reversed with directions.
Law Offices of Thomas D. Roth and Thomas D. Roth for Center for Balanced Land Use, Inc. as Amicus Curiae on behalf of Plaintiffs, Appellants, and Cross-respondents.
Knipe Law Firm and V. Nicholas Knipe for Malibu Association of Realtors as Amicus Curiae on behalf of Plaintiffs, Appellants, and Cross-respondents.
Berding Weil and Fredrick A. Hagen; Kara M. Rollins and Harriet H. Hageman for New Civil Liberties Alliance as Amicus Curiae on behalf of Plaintiffs, Appellants, and Cross-respondents.
Kara M. Rollins and Harriet H. Hageman for National Federation of Independent Business Small Business Legal Center as Amicus Curiae on behalf of Plaintiffs, Appellants, and Cross-respondents.
Chris Scheuring for California Farm Bureau Federation as Amicus Curiae on behalf of Plaintiffs, Appellants, and Cross-respondents.
Xavier Becerra, Attorney General, Daniel A. Olivas, Senior Assistant Attorney General, Christina Bull Arndt and David Edsall Jr., Deputy Attorneys General, for Defendant, Respondent, and Cross-appellant.
Environmental Law Clinic, Mills Legal Clinic at Stanford Law School, Deborah A. Sivas, and Molly L. Melius for Surfrider Foundation and Azul as Amici Curiae on behalf of Defendant, Respondent, and Cross-appellant.
INTRODUCTION
A house sits on beachfront property in Malibu. A five-foot-wide vertical easement, owned by the California Coastal Conservancy for public access to the coast,
Warren and Henny Lent purchased the property in 2002. In 2007 the Commission began asking the Lents to remove the structures so the Conservancy could build a public accessway over the easement area. The Lents refused. In 2014 the Commission served the Lents with a notice of intent to issue a cease and desist order. The notice advised the Lents the Commission could impose administrative penalties under
Two weeks before the scheduled hearing on the cease and desist order, the Commission staff issued a report detailing the Lents’ alleged violations of the Coastal Act. In the report the Commission staff recommended that the Commission impose a penalty of between $800,000 and $1,500,000 (and specifically recommended a penalty of $950,000), but stated that the Commission was justified under the circumstances in imposing a penalty of up to $8,370,000. At the hearing the Commission issued the cease and desist order and imposed a penalty of $4,185,000.
The Lents filed a petition for writ of mandate asking the trial court to set aside the Commission‘s order and penalty. In addition to contending substantial evidence did not support the Commission‘s determination that the Lents violated the Coastal Act, the Lents argued
We conclude substantial evidence supported the Commission‘s decision to issue the cease and desist order. We also conclude the Commission did not violate the Lents’ due process rights by imposing a $4,185,000 penalty, even though its staff recommended a smaller penalty, because the Commission had previously advised the Lents it could impose a penalty of up to $11,250 per day and the Commission staff specifically advised the Lents that the Commission could impose a penalty of up to $8,370,000. Therefore, we reverse the trial court‘s judgment remanding the matter to the Commission.
On the Lents’ appeal of the penalty, we conclude the Lents failed to show
FACTUAL AND PROCEDURAL BACKGROUND
A. A Prior Owner Builds the House
The Lents own property in Malibu. South of the property is the ocean; north of the property is the Pacific Coast Highway. In 1978 a prior owner of the property applied to the Commission for a coastal development permit to build a house. As a condition of approving the permit, the Commission required the prior owner to dedicate a vertical public-access easement on thе eastern side of the property. In 1980 the prior owner recorded an offer to dedicate a five-foot-wide easement, and in 1982 the Conservancy recorded a certificate of acceptance. A storm drainpipe, owned by the County of Los Angeles, runs across the easement area.
Notwithstanding the permit condition and the easement, the prior owner built in the easement area a wooden deck that sits above the drainpipe and a staircase that provides access from the deck to the house. The staircase occupies 27 inches of the five-foot-wide easement. The deck provides access to the sand through a (different) staircase. The owner also constructed a fence and gate adjacent to the sidewalk that blocks access to the easement area
Exhibit 18
CCC-16-CD-03
CCC-16-AP-01
In 1993 the Conservancy sent a letter to the owners of the property informing them of the easement and stating the Conservancy had “the right to open for public use a five-foot-wide corridor for pedestrian access to and from the shoreline.” The Conservancy also stated, however, the easement would “remain closed until the Conservancy locate[d] a management agency and open[ed] this easement to public use.” Observing that the gate blocked access to the easement area, the Commission asked the owners to “either remove the gate” or “seek the Conservancy‘s permission to keep the gate in place during the period that the accessway is officially closed” and remove the gate once the Conservancy decided to open the easement.
The Lents purchased the property in 2002 (with the gate intact). In April 2007 the Commission sent a letter to the Lents stating the structures in the easement area, including the deck and the gate, were inconsistent with the easement and violated the Coastal Act and asking the Lents to remove all structures in the easement area. The Commission also attached a copy of the house‘s original permit conditions. The next month the Commission served the Lents with a “notice of intent to commence cease and desist order proceedings.” The Lents did not agree to remove the structures.
Because the topography of the easement area includes several steep elevation drops, the Conservancy determined it had to build an accessway with stairs to make the easement usable for the public. In 2008 the Conservancy hired a contractor to conduct a survey of the easement area to assess the feasibility of building an accessway, and in 2010 an architectural firm completed conceptual plans for the accessway. Later that year, representatives from the Commission, the Conservancy, and the architectural firm met at the property with the Lents and their attorneys to discuss development of the accessway.
During the next several years the Commission and the Lents’ attorneys exchanged correspondence in which the Commission asked the Lents to remove the structures in the easement area and the Lents objected for various reasons. Having failed to resolve the issue, the Commission sent a letter to counsel for the Lents in June 2014 stating that, “under the newly enacted
In September 2015 the Commission served the Lents with a new notice of intent to issue a cease and desist order and to impose penalties under
On November 18, 2016, two weeks before the scheduled hearing on the cease and desist order, the Commission staff submitted a report with proposed findings and recommendations. The report stated that under
At the public hearing the Commission staff presented its findings and conclusions, again recommending the Commission impose a $950,000 penalty. Counsel for the Lents presented a defense, and Warren Lent spoke at the hearing. After the Lents’ presentation, several individuals spoke, including the executive officer of the Conservancy. The executive officer stated that the only impediment to opening the easement for public access was the Lents’ refusal to remove the structures, and both the executive officer and another member of the Conservancy stated that the Conservancy‘s engineers had determined it was feasible to build an accessway in the easement area.
After the presentations, the commissioners deliberated. Several commissioners stated the Lents’ conduct was particularly egregious and warranted a penalty higher than the staff‘s recommendation. Ultimately, the Commission
D. The Lents File a Petition for Writ of Mandate, Which the Trial Court Grants in Part
In February 2017 the Lents filed a petition for a writ of mandate. In addition to making the arguments they made during the administrative proceedings, the Lents argued
The trial court found that there was “overwhelming evidence” the Lents violated the Coastal Act by “interfering with the public‘s right of access to the ocean via the easement” and that the “Conservancy has made clear that the stairway/gate has substantially impaired its ability to move forward with a public accessway.” The court ruled that substantial evidence supported the Commission‘s cease and desist order, that laches did not bar the Commission from issuing the order, and that the Commission was аuthorized to impose penalties. Although the court ruled the penalty was not constitutionally excessive, the court also ruled the Commission violated the Lents’ due process rights by “deviat[ing] upward from the staff-recommended $950,000” penalty without providing the Lents an “opportunity to argue against the Commission‘s . . . reasoning for imposition of a considerably larger fine.” The court stated: “The amount of the fine in this case is substantial and the hearing procedure did not give [the Lents] an opportunity to present all available evidence and argue against the $4.1 million penalty imposed. An additional opportunity to present evidence would have enhanced the reliability of the quasi-criminal proceeding and the fine actually imposed, and a safeguard permitting [the Lents] to present additional penalty evidence would not adversely impact the Commission‘s procedure.”
The trial court entered judgment ordering the Commission to set aside the penalty, inform the Lents of a specific proposed penalty, and give the Lents an opportunity to present additional evidence. The trial court otherwise denied the Lents’ petition. The Lents timely appealed, and the Commission timely cross-appealed.
A. The Commission Did Not Abuse Its Discretion in Issuing the Cease and Desist Order
1. Standard of Review
Under the Coastal Act “[a]ny aggrieved person” has the “right to judicial review of any decision or action of the commission by filing a petition for writ of mandate in accordance with [Code of Civil Procedure]
2. The Commission Proceeded in the Manner Required by Law in Issuing the Cease and Desist Order
Under the Lents’ theory, a property owner who develops coastal property has an obligation to obtain permits under
The court in Leslie Salt Co. v. San Francisco Bay Conservation & Development Com. (1984) 153 Cal.App.3d 605 reached a similar conclusion for nearly identical statutory language. Leslie Salt involved a challenge to the McAteer-Petris Act (
The Lents attempt to distinguish Leslie Salt on the ground that, unlike the McAteer-Petris Act, the Coastal Act gives the Commission an additional mechanism to remedy unlawful activity. Under
Act, and that “the presence of the unpermitted development in a public easement is causing continuing resource damage” by obstructing public access to the coast. The Lents concede that, under the regulations implementing
3. Substantial Evidence Supported the Commission‘s Cease and Desist Order
In its cease and desist order, the Commission concluded that the Lents, by retaining “solid material and structures” on the property, including “the separate placement of a gate, a staircase, decks, and supporting structures,” undertook activity that required a permit and that was inconsistent with a previously issued permit. The Lents contend there was no substantial evidence to support the Commission‘s decision. There was.3
As stated, with certain exceptions not applicable here, any person who wants to perform or undertake development in the coastal zone must obtain a coastal development permit.
(
Substantial evidence supported the Commission‘s finding the structures were not permitted. The plans the prior owner submitted in support of the original permit application do not depict any structures in the easement area (except the drainpipe). On the other hand, the plans do depict a deck on the south side of the house facing the beach and an exterior stairwell on the western side of the house—the side that does not include the easement area—providing access from the house to the beach. In 1980 the owner of the property also applied for, and the Commission approved, an amended permit to extend the size of the house toward the coast. Again, the prior owner submitted plans in support of the amendment that did not depict structures in the easement area, but that did depict the deck on the south side of the house. The plans also depicted a proposed new staircase leading from the deck to the beach (which the Commission did not approve).
Substantial evidence also supported the Commission‘s finding the structures in the easement were inconsistent with both the original permit and the amended permit. The original permit included a condition requiring all construction to “occur in accord with the proposal as set forth in the application,” with “[a]ny deviations from the approved plans” requiring review by the Commission. The amended permit included the same condition, plus an additional condition requiring “[c]onstruction of the house and deck” to “occur in acсord with the revised plans submitted by the applicant.” It also provided that “[a]ll conditions of the original permit not expressly altered by this amendment shall remain in effect.” The structures in the easement area were inconsistent with these conditions.
Notwithstanding this evidence, the Lents rely on two sets of conceptual floorplans to argue the Commission impliedly approved the deck and
The second set of plans, which the prior owner did submit to the Commission, shows an exterior door on the northeast corner of the building adjacent to the easement area. According to the Lents, the existence of the door in the conceptual plan implies the Commission approved the stairway and deck. However, the plans do not depict the stairway or the deck in the easement area. Moreover, the prior owner submitted the plans in support of a 1981 amendment to the permit that had nothing to do with the purported exterior door. This third amendment “permit[ted] the applicant to extend the western corner of the . . . house“—a corner not adjacent to the easement area—an additional “18 inches beyond the stringline” between the corners of the adjacent buildings and stated that “[a]ll conditions of the
original permit not expressly altered by this amendment shall remain in effect.”Finally, the Lents submitted the virtually identical declarations of two architects, both of whom stated that in the 1970s and 1980s they did not always depict “walkways, steps, planters and other landscape/ancillary features outside of the footprint of the residence” on initial concept drawings submitted to the Commission. This testimony, however, was not consistent with either the original plans or the plans submitted in support of the 1980 amendment, each of which depicted a deck and stairway—just not the ones eventually built in the easement area. The Commission did not have to find the architects’ declaration(s) credible or persuasive. (See Ross v. California Coastal Com., supra, 199 Cal.App.4th at p. 922 [“it is for the Commission to weigh the preponderance of conflicting evidence, as [the court] may reverse its decision only if, based on the evidence before it, a reasonable person could not have reached the conclusion reached by it“].) And even if the Commission occasionally permitted stairways and decks that were not depicted on conceptual plans, such action would have little bearing on whether the Commission approved the stairway and deck here. The owners constructed the stairway and deck in a public-access easement area, and the architects did not state they generally omitted depictions of stairways and decks in public-access easement areas. In light of the numerous conceptual
B. Laches Did Not Bar the Commission from Issuing the Cease and Desist Order
The Lents argue laches barred the Commission‘s enforcement action because “the Commission was guilty of unreasonable delay in seeking the [s]tructures’ removal, thereby unduly prejudicing the Lents and acquiescing as a matter of law in their maintenance.” The trial court did not err in ruling the Lents had not met their burden of showing laches barred the Commission from issuing the order.
“Under appropriate circumstances, the defense of laches may operate as a bar to a claim by a public administrative agency if the requirements of unreasonable delay and resulting prejudice are met.” (Robert F. Kennedy Medical Center v. Belshe (1996) 13 Cal.4th 748, 760, fn. 9; accord, Krolikowski v. San Diego City Employees’ Retirement System (2018) 24 Cal.App.5th 537, 568; Cedars-Sinai Medical Center v. Shewry (2006) 137 Cal.App.4th 964, 985-986.)5 The standard of review for an order applying the doctrine of laches is generally substantial evidence. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 67.) But because laches is an affirmative defense, on which the defendant has the burden of proof (Highland Springs Conference & Training Center v. City of Banning (2016)244 Cal.App.4th 267, 282), the standard of review for an order refusing to apply laches is different. “In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment . . . .” (Dreyer‘s Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838.) Instead, “the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law” because “the appellant‘s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.‘”
For purposes of laches, “‘[a] defendant has been prejudiced by a delay when the . . . defendant has changed his position in a way that would not have occurred if the plaintiff had not delayed.‘” (George v. Shams-Shirazi (2020) 45 Cal.App.5th 134, 142; see Magic Kitchen LLC v. Good Things Internat., Ltd. (2007) 153 Cal.App.4th 1144, 1161.) The party asserting laches may either “affirmatively demonstrate[]” prejudice (Highland Springs Conference & Training Center v. City of Banning, supra, 244 Cal.App.4th at p. 282), or “the element of prejudice may be ‘presumed’ if there exists a statute of limitations which is sufficiently analogous to the facts of the case, and the period ofsuch statute of limitations has been exceeded by the public administrative agency in making its claim” (Fountain Valley Regional Hospital & Medical Center v. Bonta (1999) 75 Cal.App.4th 316, 323-324; see Malaga County Water Dist. v. State Water Resources Control Bd. (2020) 58 Cal.App.5th 447, 463 [discussing the two ways to show prejudice]). The Lents do not contend in their opening brief that an analogous statute of limitations creates a presumption of prejudice (nor did they in the trial court).6 They instead assert “the Commission‘senforcement delay has resulted in the loss of significant evidence concerning the [s]tructures’ legality.”
A defendant may show prejudice for purposes of laches where delay causes “important evidence . . . to become unavailable.” ( City and County of San Francisco v. Pacello (1978) 85 Cal.App.3d 637, 645; see Bono v. Clark (2002) 103 Cal.App.4th 1409, 1420 [“Death of important witnesses may constitute prejudice.“].) But the Lents have not shown there was such a loss of important evidence here. The Lents rely on a declaration Warren Lent submitted to the Commission in January 2016 claiming that he had “recently attempted to communicate with the architect that developed the Property as well as the prior Property owner that oversaw the development,” but that his “attempts . . . confirmed both these persons died within the past few years.” The Lents’ argument, however, ignores that the Commission first asked the Lents to remove the structures from the easement area in April 2007—nearly nine years before Warren Lent stated he “recently” tried contacting the prior owner and the architect.7 There is no evidence the prior owner and the architect were not alive and willing to discuss the history of the property with the Lents in April 2007 when the Commission sought the Lents’ consent to remove the structures, nor is there evidence showing how long the Lents waited before attempting to contact the prior owner and the architect. The Lents’ evidence did not compel the trial court to find the Commission‘s purporteddelay in seeking to enforce the terms of the easement caused the Lents’ claimed prejudice.
The Lents also suggest the Commission acquiesced in the Lents’ maintenance of the unpermitted structures because it knew of the structures by 1993 or, at the latest, 2002. In contexts other than administrative enforcement actions, a defendant can establish laches by showing either that the plaintiff‘s unreasonable delay caused him or her prejudice or that “the plaintiff has acquiesced in the act about which the plaintiff complains.” (Johnson v. City of Loma Linda, supra, 24 Cal.4th at p. 77.) Even assuming laches can bar an administrative enforcement action where the agency acquiesces to a defendant‘s conduct (and there is no showing of prejudice), the Lents’ evidence did not compel the trial court to find the Conservancy and Commission acquiesced here. The Conservancy notified the prior owner in 1993 that the easement was closed temporarily because the Conservancy had not retained a management agency to open the easement for public use, but that the gate violated the terms of the easement and the owners would need to remove the gate either immediately or, at the latest, when the Conservancy was ready to develop the easement. The Lents submitted no evidence the Commission or the Conservancy agreed that any of the structures could remain permanently. (See Pacific Hills Homeowners Assn. v. Prun (2008) 160 Cal.App.4th 1557, 1565 [despite delays by
C. The Lents Received Adequate Notice of the Penalty
“[P]rocedural due process ‘does not require any particular form of notice . . . .‘” (Lusardi Construction Co. v. Aubry (1992) 1 Cal.4th 976, 990; accord, Pacific Gas & Electric Co. v. Public Utilities Com. (2015) 237 Cal.App.4th 812, 860 (Pacific Gas).) “If the [administrative remedy] provides for reasonable notice and a reasonable opportunity to be heard, that is all that is required.” (Jonathan Neil & Assoc., Inc. v. Jones (2004) 33 Cal.4th 917, 936, fn. 7, brackets in original; see Pacific Gas, at p. 860 [“All that is required is that the notice be reasonable.“].)
The Lents had reasonable and sufficient notice. As the Commission correctly argues, due process does not require an administrative agency to notify an alleged violator of an exact penalty the agency intends to impose, so long as the agency provides adequate notice of the substance of the charge. For example, in Pacific Gas, supra, 237 Cal.App.4th 812 a gas pipeline operator challenged a $14,350,000 penalty imposed by the Public Utilities Commission (PUC), which the PUC based inpart on a provision authorizing daily penalties of $50,000 for a continuing violation. (Id. at pp. 832-833.) The court held the PUC provided adequate notice by sending the operator an order to show cause informing it of the rule it violated, of the conduct constituting the violation, and that the violation could expose the operator to penalties under an applicable section of the
Here, the Commission in its 2015 notice of intent informed the Lents how their conduct violated the Coastal Act and provided them with citations to all
But there was more: Two weeks before the hearing the Commission staff issued its recommended findings and order and sent a copy to counsel for the Lents. Not only did the staff describe in further detail how the Lents violated the Coastal Act and why their conduct warranted penalties under
Of course, under some circumstances an agency may violate due process by indicating it intends to impose a certain penalty, but subsequently deciding to impose a greater penalty, without giving the person an additional opportunity to respond. For example, in Tafti v. County of Tulare (2011) 198 Cal.App.4th 891 the county served a notice ordering the owner of a gasoline station to pay a $138,824 penalty, but informed him he could request a hearing to challenge the order. (Id. at pp. 894-895.) The court in Tafti vacated the $1,148,200 penalty an administrative law judge subsequently imposed during the hearing, holding the county did not adequately inform the owner it might increase the penalty at the hearing. (Id. at pp. 898-900.) But the circumstances here are different. The Commission staff informed the Lents that its recommended penalty range of $800,000 to $1,500,000 was just that—a recommendation—and that the Commission could impose a penalty of up to $8,370,000. Moreover, by the time the Commission staff sent its notice of intent to issue a cease and desist order and impose penalties, the Lents, through counsel, had exchanged correspondence with the Commission about the unpermitted developments. The Lents and their attorneys received adequate notice of the potential penalty.
The Lents argue they “could not present” evidence of whether the penalty imposed by the Commission “might be” constitutionally excessive, and could not have “fully appreciated” “the importance” of other evidence, until the commissionersbegan deliberating a potential penalty higher than the penalty
D. The Lents Have Not Shown They Received Inadequate Procedural Protections
The Lents contend that, even if they received sufficient notice of the potential penalty,
1. Applicable Law
“Both the federal and state Constitutions compel the government to afford persons due process before depriving them of any property interest.” (Today‘s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 212 (Today‘s Fresh Start).) “The essence of due process is the requirement that ‘a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it.‘” [Citations.] The opportunity to be heard must be afforded ‘at a meaningful time and in a meaningful manner.‘” (Ibid.) In determining
2. The Lents Have Not Shown Section 30821 Is Unconstitutional on Its Face
As the California Supreme Court stated in Today‘s Fresh Start, supra, 57 Cal.4th 197, the “standard for a facial constitutional challenge to a statute is exacting. It is also the subject of some uncertainty.” (Id. at p. 218.) Under one standard, courts “will not invalidate a statute unless it ‘pose[s] a present total and fatal conflict with applicable constitutional prohibitions.‘” (California School Boards Assn. v. State of California (2019) 8 Cal.5th 713, 723-724; see California Teachers Assn. v. State of California (1999) 20 Cal.4th 327, 338.) Under “a more lenient standard,” courts ask “whether the statute is unconstitutional ‘in the generality or great majority of cases.‘” (California School Boards Assn., at p. 724; see Gerawan Farming, Inc. v. Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1118,1138.) “Either way, we consider only the text and purpose of the statute, and ‘petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute.‘” (California School Boards Assn., at p. 724.) The Lents’ facial constitutional challenge, even under the more lenient standard, fails.
“[P]rocedural due process does not require a trial-type hearing in every instance.” (Oberholzer v. Commission on Judicial Performance (1999) 20 Cal.4th 371, 392.) “To the contrary, ‘[i]n general, “something less” than a full evidentiary hearing is sufficient
In support of their due process argument, the Lents discuss primarily the first Mathews factor, asserting that
Although not as robust as trial-like proceedings, these procedures guarantee that a property owner has notice of the alleged violations, an opportunity to present evidence, notice of the recommendation by the Commission staff and supporting evidence prior to the hearing, and an opportunity to present a defense prior to and at the hearing. The Lents do not explain why
Nor have the Lents shown that additional, trial-like procedures would significantly reduce the risk that the Commission would impose a fine that is not justified under the statutory penalty factors. As the California Supreme Court explained in People v. Ramirez (1979) 25 Cal.3d 260, when adecision “is evaluative in nature” and “depends on consideration of a host of intangible factors rather than on the existence of particular and contestable facts,” formal hearing procedures aimed at “promoting accuracy and reliability,” like cross-examination, are less important “because of the difficulties inherent in challenging the subjective aspects of an evaluative-type decision.” (Id. at pp. 275-276.)
Regarding the final Mathews factor, the Commission argues it has an important interest in imposing penalties using informal procedures to efficiently resolve violations of the Coastal Act and deter future violations. Certainly the Commission has an interest in efficiently remedying violations of the Coastal Act. And although the Commission could implement additional procedural protections for alleged violators in proceedings under
The problem with the Lents’ argument is that it conflates different constitutional protections. In Austin v. United States, supra, 509 U.S. 602 the United States Supreme Court considered the Excessive Fines Clause of the Eighth Amendment to the
The California Supreme Court in People v. Superior Court (Kaufman) (1974) 12 Cal.3d 421 similarly explained that the punitive nature of a penalty does not guarantee an accused the
In their reply brief the Lents assert that, “[b]y definition, a quasi-criminal penalty is more serious than a purely civil remedy, and that point is appropriately considered in the balancing-factor analysis under procedural due process.” But the Legislature hаs characterized the penalty imposed under
3. The Lents Have Not Shown Section 30821 Is Unconstitutional as Applied to Them
The party challenging a statute that is facially valid has “the burden of evincing facts to show that it was unconstitutional as applied.” (Associated Homebuilders of Greater East Bay, Inc. v. City of Livermore (1961) 56 Cal.2d 847, 854; accord, Coffman Specialties, Inc. v. Department of Transportation (2009) 176 Cal.App.4th 1135, 1145.) The Lents’ opening brief (but not their petition) includes a one-paragraph argument that
The Lents, however, have not identified any specific procedural protection they contend was necessary to avoid an erroneous deprivation of their interests. They do not contend, for example, that they needed to cross-examine or otherwise question a particular witness the Commission relied on or that they needed to subpoena a particular witness who was unwilling to testify. The Lents simply reiterate that they were entitled to all of the “traditional checks against arbitrary and unfair adjudication” afforded in trial-like proceedings, without explaining how these additional protections, as applied to them, could have made any difference. Accordingly, the Lents’ as-applied challenge fails.
E. The Lents Have Not Shown the Commissioners Are Biased Adjudicators
The Lents next contend the commissioners are biased adjudicators in proceedings to impose penalties under
Quoting (part of)
The Lents also argue the commissioners are biased because they can raise revenue for the Commission by imposing penalties under
In contrast, the court in Alpha Epsilon Phi Tau Chapter Housing Assn. v. City of Berkeley (9th Cir. 1997) 114 F.3d 840 (Alpha Epsilon) held a city‘s rent stabilization board that decided appeals over whether units were subject to the city‘s rent control ordinance was an impartial adjudicator, even though the board could impose fees and penalties to raise revenue. “In its executive capacity, the Board control[led] the rents that landlords may charge for properties subject to the ordinance,” administered “its own budget,” and was “responsible for its own funding.” (Id. at p. 842.) If the board ruled a unit was subject to rent control, the owner had to pay an annual registration fee and penalties for late payments, which went to the board‘s budget. Distinguishing Tumey and Ward, the court in Alpha Epsilon held the arrangement did not violate due process because the board did not have a strong enough
The Coastal Act places some check on the Commission‘s ability to use revenue derived from penalties imposed under
In connection with their opening brief, the Lents ask us to take judicial notice of a memorandum of understanding (MOU) between the Commission and the Conservancy, titled Use and Expenditure of Violation Remediation Account Funds. According to the Lents, the MOU shows the executive director of the Commission has “final say” on how penalties deposited into the Violation Remediation Account are used. In their reply brief, the Lents ask us
We deny the requests for judicial notice of these documents. The Lents did not ask the trial court to take judicial notice of any of these documents, nor do the Lents explain why they did not submit this evidence in the trial court. (See Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325-326 [“An appellate court may properly decline to take judicial notice under Evidence Code sections 452 and 459 of a matter which should have been presented to the trial court for its consideration in the first instance.“]; County of Los Angeles Department of Public Health v. Superior Court (2021) 61 Cal.App.5th 478, 486, fn. 3 [same].)
With respect to the MOU, even assuming we could take judicial notice of it as an official act of an agency (see
In addition, several of the documents the Lents ask us in their reply brief to judicially notice, including the document purporting to describe the Commission‘s annual budget, are memoranda authored by members of the Conservancy and the Commission. “While we may take judicial notice of . . . official acts of state agencies [citation], the truth of matters asserted in such documents is not subject to judicial notice.” (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482; see Guarantee Forklift, Inc. v. Capacity of Texas, Inc. (2017) 11 Cal.App.5th 1066, 1075.) The Lents seek to use the memoranda to prove the purported facts in those documents—namely, that the Conservancy in fact made various expenditures from the Violation Remediation Account to the Commission and that the budget described in the memoranda is in fact the
The Lents also contend that statements by the individual commissioners at the hearing show the commissioners were biased against them. “A party must allege concrete facts that demonstrate the challenged judicial officer is contaminated with bias or prejudice. ‘Bias and prejudice are never implied and must be established by clear averments.‘” (Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 792.) The Lents take issue with the fact that several commissioners recommended fines greater than $4,150,000. Such statements, however, do not show the commissioners had a “personal bias” (Hauser v. Ventura County Bd. of Supervisors (2018) 20 Cal.App.5th 572, 580) against the Lents or advocated against them prior to hearing the evidence (Nasha v. City of Los Angeles (2004) 125 Cal.App.4th 470, 484). In fact, the commissioners who suggested imposing higher fines justified their positions by discussing permissible penalty factors under
Finally, the Lents argue the “the Commissioners and staff delighted in how they could put the money they raised to use” during the hearing. This is not an accurate description of what occurred at the hearing. There was a brief mention of how revenue is derived from penalties. Commissioner Mark Vargas asked Lisa Haage, the Commission staff‘s Chief of Enforcement, to clarify how the revenue collected from penalties is allocated. She correctly responded, “It goes to the Violation Remediation Account.” She also stated,
F. The Lents Have Not Shown the Penalty Violated the Constitutional Prohibition on Excessive Fines
The Lents’ final argument is that the $4,150,000 penalty violates the federal and state constitutional prohibition on excessive fines. It does not.
Both the
“We review de novo whether a fine is constitutionally excessive and therefore violates the
1. The Lents’ Culpability
Relying on a declaration Warren Lent filed in the Commission proceeding, the Lents contend they had “minimal culpability” because they believed in “good-faith . . . that they were not violating any public access provisions.” The trial court found the Lents had a high degree of culpability because they willfully retained unpermitted structures and deliberately refused to remove those structures for over nine years after the Commission notified them the structures violated the Coastal Act. The court‘s finding was not clearly erroneous. Although Warren Lent stated he did not realize the structures were unpermitted, the trial court was nоt required to find that statement credible, particularly given that the Conservancy recorded its acceptance of the public easement and the Commission notified the Lents in 2007 that the structures were not permitted and that they encroached on the public access easement. The Commission sent multiple letters to the Lents or counsel for the Lents over the next several years asking them to remove the structures and explaining the Conservancy could not develop the accessway until they did so. Still, the Lents refused to remove the structures.
Citing United States v. Goodwin (1982) 457 U.S. 368 [102 S.Ct. 2485, 73 L.Ed.2d 74], where the United States Supreme Court held that “to punish a person because he has done what the law plainly allows him to do is a due process violation ‘of the most basic sort‘” (id. at p. 372), the Lents argue the Commission impermissibly punished them for exercising their right to defend themselves in the enforcement proceeding.17 But the trial court did not find the Lents culpable because they attempted to defend themselves. The court found the Lents culpable because they continued to violate the law by refusing to remove the unpermitted structures. And courts routinely consider a person‘s unwillingness to comply with the law when considering whether a fine is excessive under the
2. The Relationship Between the Harm and the Penalty
The trial court found the Conservancy could have built a public accessway if the Lents had removed the structures in the easement area, although the court stated it was not clear “how long it would have taken” for the Conservancy to complete the accessway. Again, the trial court‘s finding was not clearly erroneous. The Conservancy hired contractors in 2008 to complete a survey of the property and in 2010 to design conceptual plans. The executive officer of the Conservancy submitted a letter to the Commission stating the Conservancy‘s draft feasibility study showed no serious physical impediments, other than the Lents’ refusal to remove the structures, to the development of public access improvements. And both the executive officer and another member of the Conservancy confirmed this during the hearing. Even if it was uncertain how long it would take the Conservancy to build the accessway, there was substantial evidence the Lents delayed the Conservancy‘s efforts, which in turn delayed the public‘s ability to use the easement to access the beach.18
And there was other evidence showing the harm the Lents caused was proportional to the penalty. It was undisputed that there is no public access to the beach near the Lents’ property; the beach is part of a three-mile stretch of the coast with no public access, with the closest public access point a mile away from the Lents’ property. There is no question the state places significant value on the public‘s right to access the coast. “[T]idelands—lands between the lines of mean high tide and mean low tide—are owned by the public,” which the state holds “in trust for the people for their use . . . .” (State of California v. Superior Court (Lyon) (1981) 29 Cal.3d 210, 214.) Both the
That the harm caused by the Lents’ obstructing public access to the coast may be difficult to quantify does not show the penalty is not proportional to the Lents’ violation. For example, in Ojavan II, supra, 54 Cal.App.4th 373 the Commission issued a permit requiring an owner of 77 lots to recombine them into two lots. (See id. at p. 378.) Despite the permit, an investor purchased 54 of the 77 lots and attempted to resell them as individual lots. (Id. at p. 379.) The court in Ojavan II held that the trial court‘s $9.5 million penalty against the investor was not disproportionate to the harm, even though the investor caused “very little or no physical damage to the properties involved,” because the investor “engaged in activities contrary to the Coastal Act‘s goal of limiting development.” (Ojavan II, at pp. 387, 397-398.) Similarly, even if the Lents caused no physical damage to the property by maintaining the structures, the Lents’ conduct was inconsistent with the Coastal Act‘s goal of ensuring public access to the coast and for many years impeded the Conservancy‘s efforts to provide that access.
3. Penalties Imposed in Similar Statutes
Citing various provisions of the Penal Code and the Fish and Game Code (see
4. Ability To Pay
Although the defendant‘s ability to pay is a proper factor for the court to consider when analyzing whether a penalty violates the federal and state constitutional prohibitions on excessive fines, the defendant has the burden of proving his or her inability to pay. (See People v. Cowan (2020) 47 Cal.App.5th 32, 49-50, review granted June 17, 2020, S261952; People v. Kopp (2019) 38 Cal.App.5th 47, 96, review granted Nov. 13, 2019, S257844; cf. People v. First Federal Credit Corp. (2002) 104 Cal.App.4th 721, 728-729 [to obtain penalties for violations of the unfair competition law and false advertising law, the government was “not required to present evidence of defendants’ wealth” where the relevant statutes did not state that the defendant‘s ability to pay was “essential for determining the penalty“].) During the Commission proceedings, the Lents never argued or submitted any evidence they could not pay a fine of up to $8,400,000, even though Commission staff notified them prior to the hearing the Commission could impose such a fine. The trial court stated in its order on the Lents’ petition that the Lents (again) did not contest their ability to pay the penalty, and the Lents make no showing on appeal they submitted any such evidence in the trial court. The Lents simply state, without explanation, they “are prepared” to present
DISPOSITION
The judgment is reversed. The superior court is directed to vacate its order granting the petition in part and to enter a new order denying the petition. The parties’ motions for judicial notice are denied. The Commission is to recover its costs on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.