Lent v. California Coastal Commission ( 2021 )

Filed 4/16/21 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
WARREN M. LENT et al., B292091
Plaintiffs, Appellants, and (Los Angeles County
Cross-respondents, Super. Ct. No. BS167531)
v. ORDER MODIFYING
OPINION AND DENYING
CALIFORNIA COASTAL REHEARING [NO
COMMISSION, CHANGE IN APPELLATE
JUDGMENT]
Defendant, Respondent, and
Cross-appellant,
CALIFORNIA STATE COASTAL
CONSERVANCY et al.,
Real Parties in Interest.
THE COURT:
The opinion filed on April 5, 2021 and certified for
publication, is modified as follows:
1. On page 43, in the second sentence of the last
paragraph, add the phrase “in their as-applied challenge” after
the word “contend,” so that the sentence reads:
They do not contend in their as-applied challenge, 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.
2. In footnote 8 on pages 30 to 31, replace the second
sentence in the footnote, which begins with the word “Because,”
with:
But the trial court did not remand based on either
purported finding, instead determining the Lents did “not
challenge the Commission’s calculation of the fine” in their
petition. Therefore, we do not address the parties’
arguments on these issues.
Appellant’s petition for rehearing is denied.
This order does not change the appellate judgment.
PERLUSS, P. J. SEGAL, J. FEUER, J.
2
Filed 4/5/21 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
WARREN M. LENT et al., B292091
Plaintiffs, Appellants, and (Los Angeles County
Cross-respondents, Super. Ct. No. BS167531)
v.
CALIFORNIA COASTAL
COMMISSION,
Defendant, Respondent, and
Cross-appellant,
CALIFORNIA STATE COASTAL
CONSERVANCY et al.,
Real Parties in Interest.
APPEAL from a judgment of the Superior Court of Los
Angeles County. James C. Chalfant, Judge. Reversed with
directions.
Pacific Legal Foundation, Damien M. Schiff, Joshua P.
Thompson, and Jeremy Talcott; FisherBroyles and Paul J.
Beard II for Plaintiffs, Appellants, and Cross-respondents.
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.
_______________________
2
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, encumbers one side of
the property. By 1983 the property owner had built on the
easement area a deck providing private access to the beach, a
staircase from the deck leading to the house, and a gate blocking
public access to the easement area. The California Coastal
Commission, which enforces the California Coastal Act
(Pub. Resources Code, § 30000 et seq.)1 and remedies violations of
permit conditions, did not approve these structures.
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 section
30821, a statute enacted that year authorizing the Commission to
impose penalties on property owners who violate the public
access provisions of the Coastal Act. Still, the Lents refused to
remove the structures.
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
1 Undesignated statutory references are to the Public
Resources Code.
3
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 section 30821 is unconstitutional on its
face because it allows the Commission to impose substantial
penalties at an informal hearing where the alleged violator does
not have the procedural protections traditionally afforded
defendants in criminal proceedings. The Lents also argued that
section 30821 is unconstitutional as applied to them and that the
penalty violated the constitutional prohibition on excessive fines.
The trial court granted the petition in part and denied it in part,
ruling substantial evidence supported the Commission’s decision
to issue the cease and desist order and to impose a penalty. The
court ruled, however, the Commission violated the Lents’ due
process rights by not giving them adequate notice of the amount
of the penalty the Commission intended to impose. Therefore,
the court set aside the penalty and directed the Commission to
allow the Lents to submit additional evidence. Both the Lents
and the Commission appealed.
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
4
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 section 30821 is unconstitutional, either on its face
or as applied to them. We also conclude the penalty does not
violate the constitutional prohibition on excessive fines.
Therefore, we reverse the superior court’s judgment and affirm
the Commission’s order.
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 the 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
5
through a (different) staircase. The owner also constructed a
fence and gate adjacent to the sidewalk that blocks access to the
easement area from the highway. The Commission did not issue
a permit or otherwise approve any of these structures. This is a
view of the easement area from the north (i.e., PCH):
6
B. The Commission Attempts To Obtain the Lents’
Consent To Remove the Unpermitted Structures
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
7
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 Section 30821, . . . in cases involving violations of the
public access provisions of the Coastal Act, the Commission is
authorized to impose administrative civil penalties in an amount
up to $11,250 per day per violation.”
C. The Commission Issues a Cease and Desist Order and
Imposes a Monetary Penalty
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 section 30821. In February 2016 the
Lents served the Commission with a statement of defense.
Among other arguments, the Lents contended the Commission
had approved the structures in the easement area, the doctrine of
laches barred the Commission from requiring the Lents to
remove the stairway, and the Commission could not impose
penalties on the Lents because the Lents had not built the
allegedly unpermitted structures.
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.
8
The report stated that under section 30821 “[t]he potential
penalty that the Commission could impose” was $8,370,000—
$11,250 per day for 744 days, beginning November 24, 2014, the
date the Commission advised the Lents that their violations of
the Coastal Act could expose them to administrative penalties.
The staff report stated that a penalty of up to $8,370,000 was
warranted because the violations caused “significant blockage of
public access” to the coast, there was limited coastal access in the
area, the Lents refused to undertake any “voluntary restoration
efforts” despite the Commission’s efforts over many years to
obtain the Lents’ consent, and the Lents used the property as a
vacation rental and marketed the property’s private beach access
on at least one vacation rental website. The Commission staff,
however, “taking the most conservative possible approach in
weighing the relevant statutory factors,” recommended the
Commission impose a penalty between $800,000 and $1,500,000,
and specifically $950,000.
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
9
particularly egregious and warranted a penalty higher than the
staff’s recommendation. Ultimately, the Commission voted
unanimously to issue the cease and desist order requiring the
Lents to remove the structures in the easement area and to
impose a penalty of $4,185,000.
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 section
30821 is unconstitutional on its face because it allows the
Commission to impose substantial penalties without providing
property owners sufficient procedural protections. The Lents also
argued the penalty was an excessive fine under the federal and
state constitutions.
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 authorized 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
10
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.
DISCUSSION
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] Section 1094.5 . . . .” (§ 30801; see
SLPR, L.L.C. v. San Diego Unified Port Dist. (2020)
49 Cal.App.5th 284, 321 [“‘administrative mandamus is the
“proper and sole remedy” for challenging or seeking review of’ a
[Commission] decision”].) “[T]he trial court reviews the
11
commission’s decision to determine whether the commission
‘proceeded without, or in excess of, jurisdiction; whether there
was a fair trial; and whether there was any prejudicial abuse of
discretion. Abuse of discretion is established if the [Commission]
has not proceeded in the manner required by law, the order or
decision is not supported by the findings, or the findings are not
supported by the evidence.’” (Mountainlands Conservancy, LLC
v. California Coastal Com. (2020) 47 Cal.App.5th 214, 230; see
Code Civ. Proc., § 1094.5, subd. (b); San Diego Navy Broadway
Complex Coalition v. California Coastal Com. (2019)
40 Cal.App.5th 563, 572.) “‘Our scope of review is identical to
that of the trial court. [Citations.] We, like the trial court,
examine all relevant materials in the entire administrative
record to determine whether the agency’s decision is supported by
substantial evidence.’” (San Diego Navy, at p. 572; see Ross v.
California Coastal Com. (2011) 199 Cal.App.4th 900, 922.)
2. The Commission Proceeded in the Manner
Required by Law in Issuing the Cease and
Desist Order
Section 30600 requires “any person . . . wishing to perform
or undertake any development in the coastal zone” to “obtain a
coastal development permit.” Under section 30810 the
Commission may issue a cease and desist order after a public
hearing if the Commission “determines that any person or
governmental agency has undertaken, or is threatening to
undertake, any activity that (1) requires a permit from the
commission without securing a permit or (2) is inconsistent with
any permit previously issued by the commission . . . .” The Lents
argue an owner who merely purchases property containing
12
unpermitted structures, but who did not build the structures,
does not undertake activity that requires a permit under the
Coastal Act. Therefore, according to the Lents, regardless of
whether the structures in the easement area required a permit or
violated the terms of the easement, the Commission erred in
issuing the cease and desist order.
The law does not support the Lents’ interpretation of
section 30600. Although the statute refers to the person “wishing
to perform or undertake” development, the requirement to obtain
a permit for any development in the Coastal Zone necessarily
extends to subsequent owners of the property. “It is well settled
that the burdens of permits run with the land once the benefits
have been accepted.” (Ojavan Investors, Inc. v. California Coastal
Com. (1994) 26 Cal.App.4th 516, 526.) A successor obtains
property “with the same limitations and restrictions which
bound” the prior owner. (Id. at p. 527; see, e.g., City of Berkeley v.
1080 Delaware, LLC (2015) 234 Cal.App.4th 1144, 1151
[purchaser of property waives, “by [its] purchase of deed-
restricted lots, any right to a property interest greater than that
conveyed by [the] predecessors in interest,” and the “conditions of
the permit remain enforceable against a subsequent owner of the
property”]; Feduniak v. California Coastal Com. (2007)
148 Cal.App.4th 1346, 1379 [“once the period to challenge the
[coastal development permit] restrictions had expired and they
were recorded, they became immune from collateral attack by the
original property owner and successor owners”]; Serra Canyon Co.
v. California Coastal Com. (2004) 120 Cal.App.4th 663, 668
[although the property owner “was not a party to the original
permits, it was bound by the inaction of its predecessor in
interest”]; Ojavan, at p. 525 [deadline for successors to challenge
13
coastal development permits ran from the date the Commission
issued the permits, not the date the successors purportedly
violated the permit restrictions, because the successors were
“bound by what their grantee had to convey”].) Therefore, an
owner who maintains a development on his or her property
“undertakes activity” that requires a permit for purposes of
section 30810, as does an owner who maintains a development
inconsistent with a previously issued permit, regardless of
whether he or she constructed the development. (See Ojavan
Investors, Inc. v. California Coastal Com. (1997) 54 Cal.App.4th
373, 386 (Ojavan II) [former provision of the Coastal Act, which
provided that “[a]ny person who violates any provision of this
division shall be subject to a civil fine of not to exceed ten
thousand dollars,” applied to coastal permit violations and
“extended to . . . the successors-in-interest in the real property
subject to the permits”].)
Under the Lents’ theory, a property owner who develops
coastal property has an obligation to obtain permits under section
30600, but a subsequent purchaser does not. Developers could
avoid complying with the Coastal Act by simply selling the
property before the Commission discovers the development, a
result inconsistent with the purposes and directives of the
Coastal Act. (See § 30001, subd. (d) [“[t]he Legislature hereby
finds and declares” that “future developments that are carefully
planned and developed consistent with the policies of this
division, are essential to the economic and social well-being of the
people of this state”]; § 30607 [“[a]ny permit that is issued or any
development or action approved . . . shall be subject to reasonable
terms and conditions in order to ensure that such development or
action will be in accordance with the provisions of [the Act]”]; see
14
also § 30009 [the Coastal Act “shall be liberally construed to
accomplish its purposes and objectives”].)
The court in Leslie Salt Co. v. San Francisco Bay
Conservation & Development Com. (1984) 153 Cal.App.3d 605reached a similar conclusion for nearly identical statutory
language. Leslie Salt involved a challenge to the McAteer-Petris
Act (Gov. Code, § 66600 et seq.), which authorizes the San
Francisco Bay Conservation and Development Commission
(SFBCDC) to issue permits to any person or government agency
seeking to place fill in the San Francisco Bay. (See id., §§ 66604,
66610, 66632.) The McAteer-Petris Act has a provision nearly
identical to the cease and desist provision of the Coastal Act: The
SFBCDC may issue a cease and desist order if it “determines that
a person or governmental agency has undertaken, or is
threatening to undertake, an activity that (1) requires a permit
from the commission without securing a permit, or (2) is
inconsistent with a permit previously issued by the
commission . . . .” (Id., § 66638, subd. (a).) In Leslie Salt the
SFBCDC issued a cease and desist order requiring a property
owner to remove fill that had been placed on the owner’s
property, even though the SFBCDC did not prove the current
owner placed or authorized the placement of the fill. (Leslie Salt
Co., at pp. 609-610.) The court in Leslie Salt reversed the trial
court’s order issuing a writ of mandate to set aside the order,
holding it was reasonable and necessary to construe the cease
and desist provision so that its reference to “one who ‘has
undertaken, or is threatening to undertake’ the proscribed
activities refers not simply to one responsible for the actual
placement of unauthorized fill but also to one whose property is
misused by others for that purpose . . . .” (Id. at pp. 618, 622.)
15
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 section 30811 the commission may “order
restoration of a site if it finds that the development has occurred
without a coastal development permit . . . , the development is
inconsistent with [the Coastal Act], and the development is
causing continuing resource damage.” According to the Lents,
the Commission may issue a restoration order against a property
owner who did not build an unpermitted development, but not a
cease and desist order. Section 30811, however, does not say this.
Section 30811 does not specify against whom the Commission
may issue a restoration order, nor does it distinguish between
developers and “mere” property owners. Contrary to the Lents’
assertion, nothing in the statutory scheme suggests that section
30810 applies only to persons who build an unpermitted
development and that section 30811 applies more broadly to
persons who build the development and to subsequent property
owners.
Moreover, although the Commission characterized its order
requiring the Lents to remove the structures in the easement
area as a cease and desist order, the Commission’s findings
satisfied the requirements for issuing a restoration order under
section 30811.2 The Commission determined that the Lents’
property contained unpermitted developments (an issue we will
address), that the developments were inconsistent with the
easement and violated the public access provisions of the Coastal
2 The Commission’s 2007 notice to the Lents stated the
Commission intended to issue both a cease and desist order
under section 30810 and a restoration order under section 30811.
16
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 section 30811, public access
qualifies as a resource and that a Commission restoration order
may require an owner to remove an unpermitted development.
(See Cal. Code Regs., tit. 14, § 13190, subd. (a) [“as such term is
used in section 30811 . . . ‘[r]esource’ means any resource which is
afforded protection under the policies of Chapter 3 of the Coastal
Act, including but not limited to public access”].)
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.
3 Although the Lents apparently removed the unpermitted
structures after the trial court entered judgment, they state they
plan to rebuild them if they are successful in this litigation.
17
(§ 30600.)4 “‘[T]he Coastal Act’s definition of “development” goes
beyond “what is commonly regarded as a development of real
property.”’” (Surfrider Foundation v. Martins Beach 1, LLC
(2017) 14 Cal.App.5th 238, 252; see 11 Lagunita, LLC v.
California Coastal Com. (2020) 58 Cal.App.5th 904, 919 [“The
word ‘development’ as used in the Coastal Act is expansive.”].)
Not only does “development” include “the placement or erection of
any solid material or structure” on land and “construction . . . or
alteration of the size of any structure,” it includes any “change
in . . . access” to water. (§ 30106.) As the Commission found, the
deck, staircase, and gate were developments that required a
coastal development permit because they were solid materials or
structures built on land. (See LT-WR, L.L.C. v. California
Coastal Com. (2007) 152 Cal.App.4th 770, 805 [“gates and signs
are ‘development’ within the meaning” of section 30106].) The
deck, stairway, and gate were also developments because they
altered access to water—namely, by providing beach access to the
occupants of the Lents’ property and restricting beach access to
all others. (See Surfrider Foundation, at p. 247 [landowners
engaged in unpermitted development under section 30106 by
closing a gate on a road to the beach, putting up a sign stating
the beach was closed, covering a sign that advertised public
access, and stationing security guards to deny public access]; see
also San Diego Unified Port Dist. v. California Coastal Com.,
supra, 27 Cal.App.5th at p. 1129 [“a core principle of the [Coastal]
Act is to maximize public access to and along the coast as well as
recreational opportunities in the coastal zone”].)
4 Exceptions include, for example, “[i]mmediate emergency
work necessary to protect life or property.” (§ 30600, subd. (e)(1).)
The Lents do not contend an exception applies.
18
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 accord 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.
19
Notwithstanding this evidence, the Lents rely on two sets
of conceptual floorplans to argue the Commission impliedly
approved the deck and staircase in the easement area. The Lents
contend the first set, which the prior owners submitted to the
County of Los Angeles in 1980, depicts both the staircase in the
easement area and an exterior door on the east side of the house
adjacent to the stairway. However, the Commission stated that
this set of plans, while it may have been submitted to the county,
was not in the Commission’s permit file for the property, and it is
a reasonable inference (if not a self-evident certainty) the
Commission would not have approved a stairway that encroached
two feet three inches into a five-foot-wide easement—nearly half
the width of the easement. And even if the Commission had
approved these plans, the plans are largely illegible, and the
Lents provided no evidence the staircase and deck, as
constructed, comply with these plans.
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
20
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
plans submitted to the Commission that did not depict these
structures (but depicted similar structures elsewhere on the
property), the permit condition requiring the owner to dedicate
an easement for public access, and the fact the structures
21
encroached on the easement, there was substantial evidence the
Commission never issued permits for the structures.
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)
5 Laches, however, “‘“is not available where it would nullify
an important policy adopted for the benefit of the public.”’”
(Krolikowski v. San Diego Employees’ Retirement System, supra,
24 Cal.App.5th at p. 568; see Feduniak v. California Coastal
Com., supra, 148 Cal.App.4th at p. 1381.)
22
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.”’”
(Ibid.; see Eisen v. Tavangarian (2019) 36 Cal.App.5th 626, 647
[applying this standard to the defenses of waiver and estoppel];
Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 734
[applying this standard to an employer’s defense of undue
hardship in an action under the Fair Employment and Housing
Act].)
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 of
23
such 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’s
6 In their reply brief the Lents cite the statutes of limitations
applicable to an action alleging a patent or latent deficiency in
construction of real property (Code Civ. Proc., §§ 337.1, subd. (a),
337.15, subd. (a)) and an “action upon a statute for a . . . penalty
to the people of this state” (id., § 340, subd. (b)). To the extent
the Lents argue these statutes of limitations create a
presumption of prejudice, the Lents forfeited the argument by not
making it in their opening brief. (See Dumas v. Los Angeles
County Bd. of Supervisors (2020) 45 Cal.App.5th 348, 356, fn. 5.)
In any event, none of these statutes would create such a
presumption here. A cause of action for construction defect is not
analogous to a Commission cease and desist order, which is more
akin to an action to enjoin activity inconsistent with easement
rights. And even if an action to impose a penalty under Code of
Civil Procedure section 340 were analogous, the Commission
moved promptly to impose penalties here. The Legislature did
not enact section 30821 until June 2014—seven years after the
Commission filed its first notice of intent to issue a cease and
desist order and began trying to negotiate a resolution with the
Lents. The Commission informed the Lents their conduct might
expose them to penalties only a few months after the Legislature
enacted section 30821 (see Stats. 2014, ch. 35, § 147), and shortly
thereafter the Commission served the Lents with a new notice of
intent to issue a cease and desist order and impose penalties.
24
enforcement 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 purported
7 In their opening brief the Lents assert the Commission did
not notify them until 2010 that the stairway was not permitted.
This assertion is contradicted by the Commission’s April 2007
letter stating that all “development obstructing the accessway”
was unpermitted and should be removed, including the “deck
area” (on which the stairway sits).
25
delay 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 a homeowners’ association in seeking to
enforce setback requirements governing a homeowner’s gate, the
homeowner could not show the association acquiesced where the
association “made its opposition to the gate known from the
moment it was built, and it never changed its position or
communicated to defendants it had changed its position”]; Wells
26
Fargo Bank v. Goldzband (1997) 53 Cal.App.4th 596, 632 [the
California Division of Oil and Gas did not acquiesce by failing for
16 years to require a mineral rights owner to plug and abandon
oil wells, where there was no evidence the agency agreed the
owner was not responsible for plugging and abandoning the
wells]; Tustin Community Hospital, Inc. v. Santa Ana
Community Hospital Assn. (1979) 89 Cal.App.3d 889, 899
[“[m]ere delay on the part of the plaintiff does not necessarily
indicate an actual willingness that the defendant may continue
his invasion of the plaintiff’s rights” sufficient to show
acquiescence].)
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 in
27
part 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 Public
Utilities Code, even though the PUC did not cite the section of
the code permitting it to impose daily penalties for a continuing
violation. (Id. at p. 861.)
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 applicable statutes. And
although the Commission did not indicate the specific penalty
amount it would impose, it cited section 30821 and stated the
Lents’ conduct could warrant penalties of up to $11,250 “for each
day the violation has persisted or is persisting, for up to five (5)
years.” The rest was a matter of multiplication; the Lents at that
point knew all they needed to know about the potential penalty
they faced, how the Commission would calculate it, and why.
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 section 30821,
but the staff attached all of the evidence it relied on to reach its
conclusions. While the Commission staff recommended a penalty
of between $800,000 and $1,500,000 “in an effort to be
extraordinarily conservative in th[e] first unilateral imposition of
administrative penalties,” it also specifically advised the Lents
that the Commission could impose a penalty of “up to $8,370,000”
28
and that “application of [the statutory] factors would support the
imposition of a higher end penalty in the matter close to the
$8 million” or “a penalty in the middle range . . . near
$4 million . . . .”
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 891the 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 commissioners
29
began deliberating a potential penalty higher than the penalty
recommended by the Commission staff. Therefore, according to
the Lents, due process required the Commission to give them an
opportunity to submit additional evidence after the Commission
decided to impose the penalty. Not true. The Lents knew in
September 2015, long before the Commission staff made a
recommendation on the amount of a penalty, that the
Commission might impose daily penalties of up to $11,250. The
Lents filed a statement of defense and a supplemental statement
of defense, but never raised a constitutional objection to the
potential size of the penalty. At the hearing, neither the Lents’
attorneys nor Warren Lent argued that the potential size of the
penalty was constitutionally excessive or that the Lents needed
additional time to submit evidence relevant to the statutory
penalty factors under section 30820, subdivision (c), even though
the Commission had specifically informed the Lents two weeks
before the hearing that the Commission could impose a penalty of
up to $8,170,000. In addition, even if the Commission somehow
reduced the Lents’ motivation or incentive to submit relevant
evidence by recommending a penalty of “only” up to $1,500,000,
the Lents have not identified what additional evidence they
would have submitted had the Commission staff recommended a
larger penalty.8
8 In its cross-appeal, the Commission asserts the trial court
“erred by remanding based on finding that the Commission
focused overly on deterrence” and “by finding that the second
penalty factor, on susceptibility to remediation, did not support
imposition of a penalty.” Because the trial court did not make
either finding, and the Lents do not mention either finding in
30
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, section 30821 is unconstitutional
on its face because it allows the Commission to impose
substantial penalties without giving alleged violators sufficient
procedural protections. In the alternative, the Lents contend
section 30821 is unconstitutional as applied to them. Neither
contention has merit.
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 “‘“the quantum and quality of the process due in a
particular situation”’ . . . the United States Supreme Court [in
Mathews v. Eldridge (1976) 424 U.S. 319, 335 [96 S.Ct. 893,
47 L.Ed.2d 18] (Mathews)] has rejected absolute rules in favor of
balancing three considerations: ‘First, the private interest that
will be affected by the official action; second, the risk of an
their opening brief, we do not address the Commission’s
assertion.
31
erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government’s interest,
including the function involved and the fiscal and administrative
burdens that the additional or substitute procedural requirement
would entail.’” (Today’s Fresh Start, at pp. 212-213.) California
courts “also consider a fourth factor, the ‘“dignitary interest in
informing individuals of the nature, grounds, and consequences
of the action and in enabling them to present their side of the
story before a responsible government official.”’” (Id. at p. 213.)
“In other words, what would the proposed additional procedures
add to the fairness and accuracy of the proceedings actually held,
and is any such additional benefit constitutionally necessary in
light of the respective interests at stake?” (Id. at pp. 228-229.)
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,
32
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 prior to adverse administrative action.’”
(Today’s Fresh Start, supra, 57 Cal.4th at p. 228.) Courts have
rejected challenges to administrative proceedings that did not
provide the kind of procedural protections the Lents complain
section 30821 does not provide, including the right to call
witnesses and examine adverse witnesses (see, e.g., Coleman v.
Department of Personnel Administration (1991) 52 Cal.3d 1102,
1122; James v. City of Coronado (2003) 106 Cal.App.4th 905, 912;
Stardust Mobile Estates, LLC v. City of San Buenaventura (2007)
147 Cal.App.4th 1170, 1189); the right to exclude unsworn
testimony (see E.W.A.P., Inc. v. City of Los Angeles (1997)
56 Cal.App.4th 310, 324; Mohilef v. Janovici (1996)
51 Cal.App.4th 267, 298); and the right to subpoena witnesses
(Mohilef, at p. 303; cf. Cimarusti v. Superior Court (2000)
79 Cal.App.4th 799, 808-809 [“[g]enerally, there is no due process
right to prehearing discovery in administrative hearing cases”]).
In support of their due process argument, the Lents discuss
primarily the first Mathews factor, asserting that section 30821
allows the Commission to impose substantial penalties of up to
33
$20,000,000 against property owners, “akin to the deprivation of
one’s means of livelihood.” It is true that due process may
require a proceeding that more closely resembles a trial when, for
example, “action by the state significantly impairs an individual’s
freedom to pursue a private occupation.” (Oberholzer v.
Commission on Judicial Performance, supra, 20 Cal.4th at
p. 392.) While the Commission certainly has the potential to
impose significant penalties, this potential has less relevance to
the Lents’ facial challenge because section 30821 does not require
the Commission to impose a minimum penalty if it determines a
property owner has violated the Coastal Act. (See People ex rel.
Lockyer v. Fremont Life Ins. Co. (2002) 104 Cal.App.4th 508,
522-523 [statutory penalty is less likely to violate due process
where the statute gives the adjudicator discretion in determining
the amount of the penalty].) To prevail on their facial challenge,
the Lents must show not only that the Commission has the
potential to impose penalties large enough to violate due process
under the informal hearing procedures of section 30821, but
(under the standard more lenient to them) that in the generality
or the great majority of cases the Commission’s imposition of a
fine would violate due process. They did not make such a
showing here. The Commission has discretion to impose a daily
penalty of up to $11,250 for a violation of the Coastal Act, but it
does not have to do so, even where it determines a property
owner has violated the Coastal Act. Moreover, under section
30821, subdivision (h), the Commission may not impose a penalty
if the alleged violator can correct the violation within 30 days of
receiving notification of the violation without undertaking
additional development that requires a permit.
34
Turning to the second Mathews factor, neither the Lents
nor the Commission discusses the procedures available to alleged
violators in proceedings under section 30821. But several
provisions of the Coastal Act and the regulations adopted by the
Commission are designed to ensure alleged violators have a
meaningful opportunity to be heard. The Commission may only
impose penalties after “a duly noticed public hearing” on a cease
and desist or restoration order or after a hearing on a notice of
intent to record a violation of the Coastal Act. (See
§§ 30810-30812, 30821, subd. (b).) Prior to the hearing, the
executive director of the Commission must give the alleged
violator notice of the Commission’s intent to issue the order.
(§ 30812, subd. (a); Cal. Code Regs., tit. 14, §§ 13181, subd. (a),
13191, subd. (a).) In the case of a notice of intent to issue a cease
and desist order (the procedure used here) or a restoration order,
the executive director must attach a statement of defense form
and give the alleged violator at least 20 days to respond, with the
executive director having discretion to grant additional time.
(Cal. Code Regs., tit. 14, §§ 13181, subds. (a) & (b), 13191,
subds. (a) & (b).) Prior to the hearing the director must prepare
and distribute to the alleged violator a written recommendation
on the proposed order that includes “a brief summary of (A) any
background to the alleged violation, (B) the allegations made by
staff in its violation investigation, (C) a list of all allegations
either admitted or not contested by the alleged violator(s), (D) all
defenses and mitigating factors raised by the alleged violator(s),
and (E) any rebuttal evidence raised by the staff to matters
raised in the alleged violator’s assertion of any defense or
mitigating factor with references to supporting documents.” (Id.,
§ 13183, subd. (b)(2); see id., § 13193, subd. (b)(2).) At the
35
hearing the Commission staff must summarize its investigation
and proposed findings, and the alleged violator may present his
or her position. (Id., §§ 13185, subds. (c) & (d), 13195.) The
alleged violator may also ask to submit “evidence that could not
have been set forth in a statement of defense form,” in which case
the Commission may postpone the matter until later in the
meeting or continue the matter to a subsequent meeting. (Id.,
§§ 13185, subd. (d), 13195.) Any speaker, including the alleged
violator, may submit questions to the Commission to ask other
speakers. (Id., §§ 13185, subd. (g), 13195.)9
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 these protections are insufficient in the generality or in the
great majority of cases. (See Today’s Fresh Start, supra,
57 Cal.4th at pp. 229-230 [charter school had a meaningful
opportunity to be heard where it had “notice of the alleged
deficiencies in its operations and numerous chances to respond,
in writing and orally, with evidence and arguments for why its
charter should not be revoked”].)
Moreover, to prove the existence of an unpermitted
development, the Commission, as it did here, will generally rely
9 Title 14 of the California Code of Regulations does not
include specific procedural requirements for hearings on a notice
of intent to record a violation, but section 30812, subdivision (d),
of the Public Resources Code requires that the owner have an
opportunity to present evidence at the public hearing.
36
on documentary evidence. “Unlike cases that turn upon the
testimony of live witnesses, cases involving documentary
evidence do not carry a critical need to inquire into credibility via
cross-examination.” (Stardust Mobile Estates, LLC v. City of San
Buenaventura, supra, 147 Cal.App.4th at p. 1189; see Oberholzer
v. Commission on Judicial Performance, supra, 20 Cal.4th at
p. 393 [superior court judge was not entitled to a trial-like
evidentiary hearing to contest an advisory letter from the
Commission on Judicial Performance because that commission’s
“inquiry lent itself well to proof through documentary forms of
evidence”]; cf. Manufactured Home Communities, Inc. v. County
of San Luis Obispo (2008) 167 Cal.App.4th 705, 711 [cross-
examination “is especially important where findings against a
party are based on an adverse witness’s testimony”].) And even
in cases where the Commission’s findings may depend on the
testimony of a percipient witness, the proceedings, as discussed,
allow the alleged violator to submit questions to the
commissioners to ask witnesses. (See Doe v. Regents of
University of California (2016) 5 Cal.App.5th 1055, 1084 [due
process did not guarantee a student accused of sexual assault the
right to cross-examine the complainant where the student could
submit written questions to the university’s disciplinary review
panel, even though the panel’s findings were “likely to turn on
the credibility of the complainant, and respondent face[d] very
severe consequences”].)
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 a
37
decision “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.) Section 30820,
subdivision (c), lists five factors the Commission must consider
before imposing the penalty. At least three of them are or include
intangible factors that do not necessarily depend on contestable
facts: the “nature, circumstance, extent, and gravity of the
violation”; the “sensitivity of the resource affected by the
violation”; and “[w]ith respect to the violator, . . . the degree of
culpability . . . and such other matters as justice may require.”
(§ 30820, subd. (c)(1)-(5).)10
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
section 30821, courts give some deference to the procedures an
agency has adopted in enforcement proceedings, even if those
proceedings do not include a full, trial-like evidentiary hearing.
10 Arguably, the other factors the Commission must consider
depend more on contestable facts, such as whether the violation
is susceptible to restoration or remediation efforts, the cost to the
state of bringing the action, and whether the violator has
undertaken any remediation efforts.
38
As the California Supreme Court stated in Today’s Fresh Start,
supra, 57 Cal.4th 197, “‘“legislatures and agencies have
significant comparative advantages over courts in identifying and
measuring the many costs and benefits of alternative
decisionmaking procedures. Thus, while it is imperative that
courts retain the power to compel agencies to use decisionmaking
procedures that provide a constitutionally adequate level of
protection . . . , judges should be cautious in exercising that
power. In the vast bulk of circumstances, the procedures chosen
by the legislature or by the agency are likely to be based on
application of a Mathews-type cost-benefit test by an institution
positioned better than a court to identify and quantify social costs
and benefits.”’” (Id. at p. 230; see Marvin Lieblein, Inc. v. Shewry
(2006) 137 Cal.App.4th 700, 723 [acknowledging “the
administrative and fiscal burden of requiring a full evidentiary
hearing with live testimony”]; Mohilef v. Janovici, supra,
51 Cal.App.4th at p. 301 [“‘Courts should be particularly cautious
in deciding whether to require an agency to provide a procedure
that has the potential to impose significant costs, such as a right
to cross-examine.’”].)11
11 The Lents do not make any specific arguments regarding
the fourth factor California courts consider, the dignitary
interests of the individual. The California Supreme Court has
emphasized that this factor largely concerns ensuring individuals
have the opportunity to meaningfully participate in proceedings.
(See People v. Allen (2008) 44 Cal.4th 843, 869 [defendants have a
“dignitary interest in being heard,” and the “government has no
interest in assuming a paternal role to prevent a defendant from
pursuing a strategically misguided path”]; People v. Ramirez,
supra, 25 Cal.3d at p. 275 [“‘Only through [oral] participation can
the individual gain a meaningful understanding of what is
39
One of the Lents’ primary arguments is not based on any of
the three Mathews factors. They argue section 30821 is
unconstitutional on its face because it permits the Commission to
impose a “quasi-criminal” penalty, but does not guarantee
property owners and other alleged violators the “formalities
usually afforded the accused in the quasi-criminal context.” The
Lents contend that, by enacting the provision that allows the
Commission to impose an administrative penalty, the Legislature
intended, in part, to punish those who violate the Coastal Act.
Citing Austin v. United States (1993) 509 U.S. 602 [113 S.Ct.
2801, 125 L.Ed.2d 488], the Lents argue that section 30821
therefore creates a quasi-criminal proceeding.12
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
happening to her, and why it is happening. Moreover, providing
the opportunity to react . . . promote[s] the feeling that,
notwithstanding the substantive result, one has been treated
humanely and with dignity by one’s government.’”].) As
discussed, the Commission’s procedures adequately account for
the dignitary interests of the individual.
12 The Lents also cite People v. Ruiz (2018) 4 Cal.5th 1100,
where the California Supreme Court considered whether a
criminal laboratory analysis fee and drug program were
“punishment” for purposes of “Penal Code section 182,
subdivision (a)—which provides that persons convicted of
conspiring to commit a felony ‘shall be punishable in the same
manner and to the same extent as is provided for
the punishment of that felony.’” (Ruiz, at p. 1106.) Neither Ruiz
nor Penal Code section 182 has anything to do with this case.
40
United States Constitution—not the due process balancing test
described in Mathews. (See Austin, at p. 604.) The Supreme
Court held that a “‘civil sanction that cannot fairly be said solely
to serve a remedial purpose, but rather can only be explained as
also serving either retributive or deterrent purposes, is
punishment’ . . . and, as such, is subject to the limitations of the
Eighth Amendment’s Excessive Fines Clause.” (Austin, at
pp. 621-622.) But even assuming a penalty imposed under
section 30821 is a “fine” subject to the limitations of the Excessive
Fines Clause (an issue we will discuss), that does not guarantee
alleged violators all the “formalities usually afforded the accused”
in criminal proceedings. For example, it is the Sixth
Amendment, not the Eighth Amendment, that guarantees the
accused in criminal prosecutions the right to confront witnesses
(one of the protections the Lents complain section 30821 does not
afford them), and courts do not use the Excessive Fines analysis
of Austin to determine the proceedings to which the protections of
the Sixth Amendment apply. (See, e.g., Lewis v. United States
(1996) 518 U.S. 322, 325 [116 S.Ct. 2163, 135 L.Ed.2d 590];
Gardner v. Appellate Division of Superior Court (2019) 6 Cal.5th
998, 1003.)
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
Fifth Amendment privilege against self-incrimination. In that
case the government sought to impose civil penalties on an
individual for deceptive advertising, and the individual invoked
his Fifth Amendment privilege against self-incrimination to avoid
answering questions at a deposition, arguing the proceeding was
criminal in nature because of the substantial penalties the
41
individual faced. (See id. at pp. 424-425, 429.) In rejecting the
individual’s privilege assertion, the Supreme Court explained
that a civil penalty for deceptive advertising “is unquestionably
intended as a deterrent against future misconduct and does
constitute a severe punitive exaction by the state, but neither it
nor the process by which it is imposed is deemed criminal in
nature for such reasons. The penalty does not include, for
instance, the stigma of a criminal conviction nor does it permit
such alternative punishment as the loss of personal freedom with
which a defendant in a criminal action is threatened.” (Id. at
p. 431, fn. omitted.)
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 has characterized the penalty imposed under section
30821 as an “administrative civil penalty” (§ 30821, subd. (a)),
not a “criminal” penalty or fine. Like the civil penalty the
Supreme Court considered in Kaufman, a penalty imposed under
section 30821 does not expose the defendant to the stigma of a
criminal conviction. The Lents do not explain why an individual
has a greater interest in avoiding an administrative civil penalty
simply because the Legislature intends the penalty (in part) to
deter future unlawful conduct.
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.
42
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 section
30821, even if not unconstitutional on its face, it is
unconstitutional as applied to them because the Commission
imposed a large penalty. There may be instances where an
agency, by imposing a substantial penalty without giving the
alleged violator a fair opportunity to present a defense, infringes
on the alleged violator’s due process rights. For example, in
Manufactured Home Communities, Inc. v. County of San Luis
Obispo, supra, 167 Cal.App.4th 705 a county rent control board
determined, based primarily on the testimony of tenants, that a
mobilehome park operator violated a rent control ordinance. (Id.
at p. 708.) The court held the county violated the operator’s due
process rights because the county “found the tenants’ testimony
to be credible and ‘never rebutted,’” but “did not allow [the
operator] to test the tenants’ veracity or rebut the testimony
through cross-examination.” (Id. at p. 712.)
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,
43
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 section
30821. Where “‘an administrative agency conducts adjudicative
proceedings, the constitutional guarantee of due process of law
requires a fair tribunal.’” (Today’s Fresh Start, supra, 57 Cal.4th
at p. 215; see Morongo Band of Mission Indians v. State Water
Resources Control Bd. (2009) 45 Cal.4th 731, 737.) Unlike
California’s statutory scheme, in which “an explicit ground for
judicial disqualification . . . is a public perception of partiality,
that is, the appearance of bias,” the constitutional due process
guarantee of a fair tribunal “focuses on actual bias.” (People v.
Freeman (2010) 47 Cal.4th 993, 1001.) “A fair tribunal is one in
which the judge or other decision maker is free of bias for
or against a party.” (Morongo, at p. 737.) “Violation of this due
process guarantee can be demonstrated not only by proof of
actual bias, but also by showing a situation ‘in which experience
teaches that the probability of actual bias on the part of the judge
or decisionmaker is too high to be constitutionally tolerable.’”
(Ibid.; see Freeman, at p. 1001.) “Claims that an adjudicator is
biased are not subject to balancing under the federal Mathews or
state Mathews-plus test.” (Today’s Fresh Start, at p. 216.) “‘[T]he
burden of establishing a disqualifying interest rests on the party
making the assertion.’” (Id. at p. 221.)
Quoting (part of) section 30001.5, subdivision (c), the Lents
argue the commissioners are biased adjudicators because the
44
Coastal Act directs them to “[m]aximize public access to and
along the coast.” The Lents’ quotation, however, is misleadingly
selective. The complete text of section 30001.5, subdivision (c),
states that the “basic goals of the state for the coastal zone”
include maximizing “public access to and along the coast and
maximiz[ing] public recreational opportunities in the coastal zone
consistent with sound resources conservation principles and
constitutionally protected rights of private property owners.”
Section 30210, which the Lents also cite, states that access “shall
be provided for all the people consistent with public safety needs
and the need to protect public rights, rights of private property
owners, and natural resource areas from overuse.” The Lents’
argument is also based on a false premise. Section 30001.5 does
not direct or require the commissioners to do anything; it is a
statement of the Legislature’s declarations and findings in
adopting the Coastal Act. That commissioners “may be
sympathetic towards the objectives of the Act is not a valid
criticism. . . . ‘Administrators who are unsympathetic toward the
legislative program are very likely to thwart the democratic will;
the way to translate legislative policies into action is to secure
administrators whose honest opinions—biases—are favorable to
those policies.’” (CEEED v. California Coastal Zone Conservation
Com. (1974) 43 Cal.App.3d 306, 328-329; see Today’s Fresh Start,
supra, 57 Cal.4th at p. 222 [we “presum[e] that agency
adjudicators are people of ‘“conscience and intellectual discipline,
capable of judging a particular controversy fairly on the basis of
its own circumstances”’”].)
The Lents also argue the commissioners are biased because
they can raise revenue for the Commission by imposing penalties
under section 30821. “[I]nstitutional financial interests alone,
45
even without any corresponding personal benefit, may
compromise due process.” (Today’s Fresh Start, supra, 57 Cal.4th
at p. 217.) Here, the revenue derived from penalties imposed
under section 30821 is not collected by the Commission; it is
deposited into the Violation Remediation Account of the Coastal
Conservancy Fund. (See § 30821, subd. (j).) But section 30823
requires the Conservancy to expend funds “for carrying out the
provisions” of the Coastal Act “when appropriated by the
Legislature.” The Commission has “primary responsibility for
the implementation of the provisions” of the Coastal Act
(§ 30330), which includes “manag[ing] and budget[ing] any funds
that may be appropriated, allocated, granted, or in any other way
made available to the commission for expenditure.” (§ 30340.)
Therefore, the commissioners know the revenue from penalties
imposed under section 30821 will be used (if at all) to carry out
the provisions of the Coastal Act, which by statute they are
required to implement (although it is not clear from the record
how the Commission exercises, and whether it delegates any of,
its executive authority). That individuals with both executive
and adjudicative functions can raise revenue by imposing
penalties in adjudicative proceedings may, but does not
necessarily, show the individuals have a sufficient institutional
financial interest to violate due process.
The United States Supreme Court has held that an official
is not an impartial adjudicator where the official has executive
responsibilities, the official can impose fines in adjudicative
proceedings to fulfill his or her executive responsibilities, and the
fines constitute a “substantial” or “major” part of the revenue of
the organization the official oversees. For example, in Tumey v.
State of Ohio (1927) 273 U.S. 510 [47 S.Ct. 437, 71 L.Ed. 749]
46
(Tumey) the Supreme Court held that the mayor of a village was
not an impartial adjudicator for a defendant who was charged
with unlawfully possessing liquor because the mayor was
the “chief executive of the village . . . charged with the business of
looking after the finances of the village” and “substantial sums
were expended out of the village treasury, from the fund made up
of the fines” imposed on defendants convicted under the
applicable prohibition statutes. (Id. at pp. 521, 532.)13 The
Supreme Court observed, however, that “the mere union of the
executive power and the judicial power in [a person] cannot be
said to violate due process of law” and that the “minor penalties
usually attaching to the ordinances of a village council, or to the
misdemeanors in which the mayor may pronounce final judgment
. . . , do not involve any such addition to the revenue of the village
as to justify the fear that the mayor would be influenced in his
judicial judgment by that fact.” (Ibid.) Similarly, in Ward v.
Village of Monroeville (1972) 409 U.S. 57 [93 S.Ct. 80, 34 L.Ed.2d
267] (Ward) the United States Supreme Court held that the
mayor of a village who convicted and fined a defendant for traffic
offenses was not impartial where the mayor had “wide executive
powers,” “account[ed] annually to the [village] council respecting
village finances,” and had “general overall supervision of village
affairs,” and where a “major part of village income [was] derived
from the fines, forfeitures, costs, and fees imposed by him in his
mayor’s court.” (Id. at pp. 58, 60.)
13 The Supreme Court separately held the mayor was not
impartial because he personally received compensation if he
convicted the defendant, but not if he acquitted the defendant.
(Tumey, supra, 273 U.S. at pp. 523, 531-532.)
47
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 interest in adjudicating proceedings
against landlords to “‘reasonably warrant [a] fear of partisan
influence on [the] judgment.’” (Alpha Epsilon, at pp. 846-847; see
Commonwealth of the Northern Mariana Islands v. Kaipat (1996)
94 F.3d 574, 575.) The court explained that, although the board’s
role as both “adjudicator of coverage and executor of its finances
may be a less than optimal design for due process purposes,” the
“amount of the budget at stake” from the registration fees and
penalties “in any year—at a maximum of five percent—is rather
small.” (Alpha Epsilon, at p. 847.) The court also concluded that
the board’s “ability to recoup losses” and “seek funding from the
City and other sources . . . further attenuate[d its] financial
motivations” and that the board “regularly waive[d] penalties”
and recently had a surplus. (Ibid.)
The Coastal Act places some check on the Commission’s
ability to use revenue derived from penalties imposed under
48
section 30821 by requiring that the Legislature appropriate and
the Conservancy expend the funds. (See § 30823; see also
§ 30821, subd. (i)(3) [requiring the Commission to submit to the
Legislature a report of administrative penalties imposed under
section 30821].) More importantly, the Lents submitted no
evidence in the trial court of how much money the Legislature
generally appropriates or the Conservancy spends from the
Violation Remediation Account to carry out the provisions of the
Coastal Act. Nor did the Lents submit evidence of the
Commission’s annual budget or of how much of its budget (if any)
the Commission generally receives from expenditures from the
Violation Remediation Account. The Coastal Act may give the
commissioners at least some incentive to impose substantial fines
under section 30821, just as the budgetary system in Alpha
Epsilon gave the board some incentive to recover registration fees
and impose late payment penalties on landlords. (See Alpha
Epsilon, supra, 114 F.3d at p. 847.) But absent some additional
evidence showing how much the commissioners rely on the
penalties to carry out their executive duty to implement the
Coastal Act, we cannot determine whether the commissioners’
motives are strong enough to reasonably warrant a “fear of
partisan influence” on the Commission’s judgment or to cause the
commissioners “‘not to hold the balance nice, clear, and true
between the state and the accused.’” (Ibid.; see Ward, supra,409 U.S. at p. 60.) The Lents did not meet their burden of
showing the commissioners have a strong enough institutional
financial interest in the penalties they impose to create a
constitutionally impermissible risk of bias.
In connection with their opening brief, the Lents ask us to
take judicial notice of a memorandum of understanding (MOU)
49
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 to take judicial notice of even more documents
prepared by the Commission and the Conservancy. According to
the Lents, these documents show that the Conservancy has made
expenditures from the Violation Remediation Account that
directly fund the Commission’s operations and that the penalty
imposed on the Lents would have accounted for approximately 14
percent of the Commission’s annual budget for the 2017-2018
fiscal year.
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 Evid. Code,
§§ 452, subd. (c), 459), the Lents ask us to interpret the MOU in a
manner that is not obvious from the face of the document. While
the MOU states the Conservancy must ask the Legislature to
appropriate certain funds in the Violation Remediation Account
for specific projects designated by the executive director of the
50
Commission, it also states that, “[i]f the Executive Officer of the
Conservancy finds the designation of the Executive Director
infeasible, then the Conservancy and the Commission shall
consider and agree upon an alternative proposal(s).” It is not
clear that, as the Lents assert, the executive director has “final
say” on the Conservancy’s expenditures, and the extent of the
executive director’s control over expenditures is a factual
question a trial court would have been in a better position to
resolve had the Commission had an opportunity to respond.
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 budget
the Legislature approved. And even if we could take judicial
notice of these documents, the Lents, by waiting until their reply
brief on appeal to request judicial notice, prevented the
Commission from having an adequate opportunity to respond.
(See Newhall County Water Dist. v. Castaic Lake Water Agency
(2016) 243 Cal.App.4th 1430, 1450 [“[d]enial is particularly
appropriate where judicial notice has been requested in support
51
of a reply brief to which the opposing party has no opportunity to
respond”].)14
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
14 Having declined to take judicial notice of these documents,
we do not reach the issue of whether the documents show, as
argued by the Lents, that the executive director of the
Commission—a person appointed by the commissioners who
“serve[s] at the pleasure of his or her appointing power”
(§ 30335)—has significant input into the Conservancy’s
expenditures and that those expenditures have occasionally
provided funding for the Commission’s operations. If penalties
imposed by the Commission directly fund the Commission’s
operations without sufficient oversight and comprise a significant
portion of the Commission’s budget, there could be a concern the
commissioners may have an impermissible institutional interest
when deciding whether to impose significant penalties under
section 30821 like the penalty the Commission imposed on the
Lents.
52
penalty factors under section 30821, including the public’s loss of
access to the beach, the many years Commission staff spent
trying to remedy the violation, and the Lents’ unwillingness to
cooperate. (See §§ 30820, subd. (c)(1), (4) & (5), 30821, subd. (c).)
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, “If you had creative ideas of what to
do with $200,000, certainly there would be more that’s possible to
do with whatever amount you impose today,” and she suggested
that “one option might be to fund the construction of this access
way.”15 While Commissioner Vargas later repeated Haage’s
suggestion, he emphasized that the Lents’ violation was
“egregious” and that they were unwilling to remedy the violation.
None of the other commissioners discussed how the Commission
could potentially use revenue derived from the penalty or
justified imposing higher penalties on the Lents based on the
potential revenue for the Commission. Nor did the Commission
discuss the potential revenue from the penalty in its adopted
findings and order.
15 It is not clear what $200,000 Haage was referring to. The
Commission staff did not recommend, and none of the
commissioners discussed, imposing a $200,000 fine on the Lents.
53
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 Eighth Amendment to the United States
Constitution and article I, section 17 of the California
Constitution prohibit excessive fines. (See People ex rel. Lockyer
v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 727-728.)16
“‘[T]he touchstone of the constitutional inquiry under the
Excessive Fines Clause is the principle of proportionality,’” which
courts assess by considering “(1) the defendant’s culpability;
(2) the relationship between the harm and the penalty; (3) the
penalties imposed in similar statutes; and (4) the defendant’s
ability to pay.” (Ibid.; see United States v. Bajakajian (1998)
524 U.S. 321, 334 [118 S.Ct. 2028, 141 L.Ed.2d 314].) A fine is
constitutionally excessive only if it is “grossly disproportionate to
the offense[ ] . . . .” (People v. Braum (2020) 49 Cal.App.5th 342,
359; see Bajakajian, at p. 334 [“a punitive forfeiture violates the
Excessive Fines Clause if it is grossly disproportional to the
gravity of a defendant’s offense”]; City and County of San
Francisco v. Sainez (2000) 77 Cal.App.4th 1302, 1322 [same].)
Because the Commission does not dispute that the penalty
imposed on the Lents is a fine for purposes of the Excessive Fines
Clause, we consider whether the penalty is grossly
16 The Excessive Fines Clause of the Eighth Amendment is
applicable to the states through the Fourteenth Amendment.
(Timbs v. Indiana (2019) ___ U.S. ___, ___ [139 S.Ct. 682,
686-687, 203 L.Ed.2d 11].)
54
disproportionate to the Lents’ violation under the factors in
Lockyer and Bajakajian.
“‘We review de novo whether a fine is constitutionally
excessive and therefore violates the Eighth Amendment’s
Excessive Fines Clause.’ [Citations.] ‘[F]actual findings made by
the [trial court] in conducting the excessiveness inquiry, of
course, must be accepted unless clearly erroneous.’” (Sweeney v.
California Regional Water Quality Control Bd. (Feb. 18, 2021,
A153583) ___ Cal.App.5th ___, ___ [2021 Cal.App.Lexis 243,
p. 81], as modified Mar. 18, 2021.) We review the “underlying
factual findings . . . for substantial evidence, viewing the record
in the light most favorable to the ruling.” (People v. Braum,
supra, 49 Cal.App.5th at p. 360.)
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 not 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
55
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 Eighth
Amendment. (See People v. Braum, supra, 49 Cal.App.5th at
p. 361 [landlord’s flagrant disobedience of city ordinances and
court orders demonstrated his culpability]; City and County of
San Francisco v. Sainez, supra, 77 Cal.App.4th at p. 1322
[landlord’s “numerous instances of ignoring or disobeying orders
to abate or rectify substandard housing conditions affecting the
public health and safety” demonstrated his culpability];
17 The defendant in United States v. Goodwin, supra, 457 U.S.
368 moved to set aside a verdict on the ground of prosecutorial
vindictiveness, contending the prosecutor indicted him on a
felony charge in retaliation for not pleading guilty to a
misdemeanor charge. (See id. at pp. 371-372.)
56
Ojavan II, supra, 54 Cal.App.4th at p. 398 [$9.5 million penalty
imposed by the Commission was not excessive, in part because of
the investor’s “flagrant disregard of the . . . restrictions” on
development].)
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
18 Citing a letter written by an engineer and submitted by the
Lents in support of their defense during the Commission
57
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
California Constitution and Coastal Act protect the public’s right
to access the coast (see Cal. Const., art. X, §§ 3, 4; § 30210), and
the Coastal Act specifically recognizes the importance of the
public’s ability to use oceanfront land for recreation (see §§ 30220
[“Coastal areas suited for water-oriented recreational activities
that cannot readily be provided at inland water areas shall be
protected for such uses.”]; 30221 [“Oceanfront land suitable for
recreational use shall be protected for recreational use and
development unless . . . already adequately provided for in the
area.”]).
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
proceeding, the Lents contend that “the harm from any delay is
uncertain.” The trial court was not required to find the
statements by the Lents’ engineer credible, particularly because
they conflicted with the Conservancy’s evidence. And even if it is
not “certain” the Conservancy can eventually build an accessway
in the easement area, there is substantial evidence the Lents at
least delayed when the Conservancy can finally determine
whether building an accessway is feasible.
58
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 Pen. Code, §§ 374.7, subd. (b) [$250 to
$3,000 fine for dumping waste matter into a body of water],
374.8, subd. (b) [$50 to $10,000 fine for knowingly causing a
hazardous substance to be deposited into or on a road, another
person’s land, or waters of the state]; Fish & G. Code, §§ 12007
[$5,000 maximum fine for violating a streambed alteration
agreement], 12008 [$5,000 maximum fine for violating certain
provisions regarding endangered or protected species]), the Lents
contend that the penalty the Commission imposed under section
30821 is disproportionate to the penalty the state may impose for
other violations that cause environmental harm. But the
statutes the Lents cite impose fines for individual acts, not for
ongoing violations like maintaining an unpermitted development
59
that violates the Coastal Act’s public access provisions.
Moreover, there are plenty of statutes that impose daily penalties
for activity that can cause environmental harm—including
undertaking activity without obtaining a required permit—some
of which impose maximum penalties higher than the maximum
penalty the Commission can impose under section 30821. (See,
e.g., Fish & G. Code, §§ 5901, 12025.1 [daily penalty of up to
$8,000 for constructing or maintaining a device in a stream that
impedes passing of fish]; Gov. Code, §§ 66632, 66641.5, subd. (b)
[$100 to $10,000 daily penalty for knowingly placing fill,
extracting materials, or making any substantial change in use of
any water, land, or structure in the San Francisco Bay without
obtaining a permit]; Health & Saf. Code, § 25191 [daily penalty of
up to $25,000 for the first violation, and $50,000 for the second
violation, of provisions relating to the handling of hazardous
waste]; Pub. Resources Code, §§ 29610 [$50 to $5000 daily
penalty for “intentionally and knowingly commenc[ing] any
development in violation of” the Suisun Marsh Preservation Act,
§ 29000 et seq.], 45023 [$10,000 daily penalty for violating
provisions of the Integrated Waste Management Act, § 40050 et
seq.]; Wat. Code, §§ 13265, subd. (d) [regional water board may
impose a daily penalty of up to $5,000, and the superior court
may impose a daily penalty of up to $25,000, for discharging
hazardous waste], 13385, subd. (b)(1) [daily civil liability of up to
$25,000 for violations of the federal Clean Water Act, 33 U.S.C.
§ 1251 et seq.].) And courts have rejected excessive fine
challenges to civil penalties of several million dollars imposed
under statutes authorizing daily penalties like the daily penalty
the Commission imposed here. (See Pacific Gas, supra,
237 Cal.App.4th at pp. 866-867 [$14.35 million penalty against a
60
gas pipeline operator for failing to report information]; People v.
Braum, supra, 49 Cal.App.5th at p. 359 [$5,967,500 penalty
against a landlord who leased property to marijuana dispensary
operator in violation of local ordinance]; Ojavan II, supra,
54 Cal.App.4th at p. 398 [$9.5 million penalty against an investor
for violations of Coastal Act].)
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 evidence on “their
61
inability to pay a substantial fine” if the matter is remanded.
The Lents failed to meet their burden.
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.
62