AMG Outdoor Advertising v. Cal. Office of Admin. Hearings CA2/4 ( 2023 )

Filed 10/5/23 AMG Outdoor Advertising v. Cal. Office of Admin. Hearings CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
AMG OUTDOOR ADVERTISING, B317500
INC.,
(Los Angeles County
Petitioner and Appellant, Super. Ct. No. BS175084)
v.
THE STATE OF CALIFORNIA
OFFICE OF ADMINISTRATIVE
HEARINGS,
Respondent,
CALIFORNIA DEPARTMENT OF
TRANSPORTATION,
Real Party in Interest and
Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Mary H. Strobel, Judge. Affirmed.
Cole & Loeterman and Dana M. Cole for Plaintiff and Appellant.
Holbrook, Montoya, Dadaian, Solares, DelRivo, Bowman, Berkebile and
Nancy Naylor for Real Party in Interest and Respondent.
INTRODUCTION
The California Department of Transportation (Caltrans) issued notices
to AMG Outdoor Advertising, Inc. (AMG) for an unpermitted billboard in
violation of the Outdoor Advertising Act (OAA). After a hearing, the
administrative law judge (ALJ) issued a proposed decision directing AMG to
remove the billboard and pay a penalty. Caltrans adopted the ALJ’s decision.
AMG and its sole officer, Alex Garcia (Garcia), filed a petition for a writ of
administrative mandate directing Caltrans to set aside its final decision. The
trial court denied the petition and the appeal followed.
On appeal, AMG contends the trial court applied the incorrect standard
of review, and Caltrans failed to meet its burden in establishing AMG owned
and operated the unpermitted billboard.1 We disagree and affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Billboard
Caltrans is responsible for enforcing the OAA, which governs
advertising displays situated within proximity to and in sight of state
highways. (See Bus. & Prof. Code, § 5200 et seq.) The OAA prohibits the
placement of any advertising display without first securing a permit. (Bus. &
Prof. Code, § 5350; Traverso v. People ex rel. Dept. of Transportation (1996) 46
Cal.App.4th 1197, 1204.)
Poursalimi, Houshang & Shahnaz (PHS) owns the real property located
at 1312-1314 East 16th Street in Los Angeles (property). On November 1,
2013, PHS, as lessor, and AMG, as lessee, entered into an Outdoor
Advertising Lease Agreement for the property. Garcia, the sole officer of
1 Garcia is not a party to the appeal.
2
AMG, signed the lease. The lease provided that the property would be leased
to AMG for 20 years “for the purpose of erecting and maintaining an
advertising sign thereon.” The lease also stated, “In the event that [AMG]
[was] unsuccessful in obtaining the necessary entitlement to construct its
sign as designated herein within 120 days . . . , either party may cancel this
lease upon 30 days written notice.” As further discussed below, AMG
challenges the admissibility of this lease at the administrative hearing.
On January 24, 2014, Caltrans issued notices of violation of the OAA to
PHS for an unpermitted advertising display (billboard) on the property. At
that time, the identity of the billboard operator was unknown. PHS did not
remove the billboard or place it in compliance with the OAA. On August 15,
2014, Caltrans instituted an administrative action and filed an accusation
against PHS, alleging violations of the OAA with a prayer for removal of the
billboard and an assessment of penalties.
During discovery, Caltrans received documents from counsel for PHS
pertaining to the billboard, including a copy of the Outdoor Advertising Lease
Agreement between PHS and AMG. Based on the lease produced, on April
30, 2015, Caltrans issued notices of violation of the OAA to AMG for the
unpermitted billboard. AMG did not remove the billboard or place it in
compliance with the OAA. On June 22, 2015, Caltrans filed an amended
accusation adding AMG as a respondent. A copy of the lease was attached to
the amended accusation. AMG timely requested a hearing to challenge the
amended accusation.
On August 24, 2015, PHS failed to appear at a scheduled hearing and
after a default was declared, the matter as to PHS was remanded to Caltrans
for a default decision. Thus, AMG was the only remaining respondent.
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B. Criminal Prosecution
On July 3, 2014, prior to the filing of the amended accusation against
AMG, the Los Angeles City Attorney’s Office filed a misdemeanor complaint
(People v. AMG Outdoor Advertising, Inc. et al., case No. 4CA03603) charging
AMG, Garcia, and another individual (Jon Keith Stephens) with various
violations of the City of Los Angeles Municipal Code related to the operation
of the billboard on the property.
C. Administrative Hearing
Over almost three years, the parties, jointly or separately, filed
requests to continue the administrative hearing for a multitude of reasons
including the pending criminal case and representations by AMG’s counsel
that Garcia would invoke his Fifth Amendment right at the hearing. A
majority of these requests were granted.
The administrative hearing ultimately occurred on April 4, 2018, while
the criminal matter was still pending. The following individuals testified at
the hearing: two Caltrans employees, Raj Champaneri and George Anzo, and
a City of Los Angeles employee, Frank Lara. Both Massoud Poursalimi, the
individual owner of the property, and Garcia invoked their Fifth Amendment
right and did not testify.
Champaneri, a Caltrans field inspector, testified he initially inspected
the property upon receipt of a complaint of an unpermitted billboard.
Champaneri searched the State’s electronic database for permits. He
determined there was no active permit for the billboard on the property.
Thereafter, notices of violation of the OAA were issued to PHS as the
property owner. The identity of the billboard operator was unknown at that
time. At some point, a Caltrans attorney (Mark Berkebile) told Champaneri
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that AMG was the billboard operator and provided him with the Outdoor
Advertising Lease Agreement between PHS and AMG. Champaneri
conducted another inspection of the property, checked the database for any
permits, and again found no active permits. Based on the Caltrans attorney’s
representation and the lack of an active permit, notices of violation of the
OAA were then issued to AMG. AMG did not correct the violations or remove
the billboard.
Lara, City of Los Angeles assistant deputy superintendent of building,
testified that as part of his job duties, he inspected billboards for compliance
with Los Angeles City codes. Lara inspected the property after receiving a
complaint of an unpermitted billboard. After arriving at the property,
viewing the billboard, and searching the City’s electronic database, Lara
determined that there was never a permit issued for the billboard.
Anzo, Caltran’s southern area manager for the Office of Outdoor
Advertising, testified. He explained that when a property owner appeals
from a notice of violation on the ground that the owner had no knowledge of
the billboard or was not the billboard operator, it is Caltrans’s custom and
practice to rely on its legal division to obtain information not readily
available from public records to identify the billboard operator. Anzo
believed AMG was the billboard operator at the property. He explained that
Berkebile provided Champaneri with a copy of the Outdoor Advertising Lease
Agreement between PHS and AMG. Berkebile had received a copy of this
lease from PHS’s (later also AMG’s) prior counsel. Anzo did not
independently verify that AMG owned the billboard; rather his testimony
was based on “conversations [he] had with other people” and the lease that
was provided to him.
5
Caltrans sought to admit the Outdoor Advertising Lease Agreement
into evidence. In his evidentiary ruling, the ALJ noted that “[t]his is about as
thin a foundation as [he could] recall,” but “the technical rules of evidence are
greatly relaxed, including foundation” in administrative proceedings. The
ALJ relied on a stipulation between the parties to continue a hearing date in
the administrative proceeding, which was signed by attorney Raymond
Haynes, then-counsel for PHS and AMG, on March 22, 2016. In relevant
part, the stipulation stated: “On April 6, 2015, Caltrans received from PHS
documents pertaining to the displays, including a copy of the Outdoor
Advertising Lease Agreement between PHS and AMG. Subsequently, AMG
was added as a respondent.” The ALJ acknowledged a copy of this lease was
not attached to the stipulation and there was no reference to a date. “[B]ut
the title of the document in the stipulation matches this, and the timing of it
seems to be according to snuff.” The ALJ was “also relying on greatly” the
fact that AMG had not denied ownership of the billboard at any point during
this administrative proceeding. AMG counsel interjected and argued the ALJ
was “construing a Fifth Amendment privilege against [Garcia].” The ALJ
responded, “No, not at all.” The ALJ explained that Caltrans met its burden
of establishing the lease was what it purported to be and AMG had not
provided any evidence “that would indicate [the lease] is an incorrect version
or an outdated version or it involves some entity other than AMG.” The ALJ
emphasized that “the fact that Mr. Garcia didn’t testify today, I don’t care.”
Over AMG’s objection, the ALJ found sufficient foundation for admission of
the lease.
On June 15, 2018, the ALJ issued a proposed decision finding that
AMG entered into a lease on the property on November 1, 2013, for the
purpose of erecting and maintaining a billboard, and that AMG operated the
6
billboard without a permit, in violation of the OAA. The ALJ recommended
that Caltrans order AMG to remove the billboard from the property and
impose $166,000 in penalties.
On July 12, 2018, Caltrans adopted the proposed decision as its final
decision.
D. Trial Court Proceedings
On September 12, 2018, AMG and Garcia filed a verified petition for
writ of administrative mandate directing Caltrans to set aside its final
administrative decision. On September 9, 2021, the trial court denied the
petition and entered judgment in favor of Caltrans on October 4, 2021.
AMG filed a timely notice of appeal.
DISCUSSION2
A. Standards of Review
“Code of Civil Procedure section 1094.5 provides for judicial review of
administrative orders and decisions. (Topanga Assn. for a Scenic Community
v. County of Los Angeles (1974) 11 Cal.3d 506, 514; Schmid v. City and
County of San Francisco (2021) 60 Cal.App.5th 470, 483 (Schmid).)
‘“Pursuant to Code of Civil Procedure section 1094.5, subdivision (b), ‘[t]he
2 At oral argument, counsel for AMG raised the issue of the ALJ’s failure
to stay (or continue) the administrative hearing pending the criminal
proceeding. By raising this argument for the first time at oral argument,
AMG has forfeited the issue. (Daniels v. Select Portfolio Servicing, Inc. (2016)
246 Cal.App.4th 1150, 1185 [we will not consider an issue not mentioned in
the briefs and “‘raised for the first time at oral argument’”], disapproved on
another ground in Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905,
948, fn. 12; Haight Ashbury Free Clinics, Inc. v. Happening House Ventures
(2010) 184 Cal.App.4th 1539, 1554, fn. 9 [same].)
7
inquiry in such a case shall extend to the questions whether the respondent
has 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 respondent 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.’”’ (Schmid, at pp. 483–484;
accord, Doe v. University of Southern California (2018) 28 Cal.App.5th 26,
34.) The writ petitioner has ‘“‘the burden of proving that the agency’s
decision was invalid and should be set aside, because it is presumed that the
agency regularly performed its official duty.’”’ (Schmid, at p. 484.)” (Sky
Posters Inc. v. Department of Transportation (2022) 78 Cal.App.5th 644, 659.)
“When a petitioner contends the findings are not supported by the
evidence in the administrative record, the standard of review in the trial
court is either the substantial evidence or the independent judgment
standard. (Strumsky v. San Diego County Employees Retirement Assn. (1974)
11 Cal.3d 28, 32.) Under the former standard, the trial court will affirm the
administrative decision if it is supported by substantial evidence from a
review of the entire record, resolving all reasonable doubts in favor of the
findings and decision. (Committee to Save Hollywoodland Specific Plan v.
City of Los Angeles (2008) 161 Cal.App.4th 1168, 1182.) Under this
‘deferential’ standard, the trial court presumes the correctness of the
administrative ruling. (Patterson Flying Service v. California Department of
Pesticide Regulation (2008) 161 Cal.App.4th 411, 419.) In contrast, where the
independent judgment standard applies, the trial court exercises its
independent judgment on the evidence in a limited trial de novo in which the
court must examine the administrative record for errors of law and exercise
its independent judgment on the evidence. (Clary [v. City of Crescent City
8
(2017)] 11 Cal.App.5th [274,] 284.)” (Inzana v. Turlock Irrigation Dist. Bd. of
Directors (2019) 35 Cal.App.5th 429, 440–441 (Inzana), fn. omitted.)
“Where the trial court has reviewed the entire record and determined
there was substantial evidence to support the administrative decision, the
appellate court’s ‘scope of review on appeal from such a judgment is identical
to that of the trial court.’ (Bixby v. Pierno (1971) 4 Cal.3d 130, 149 (Bixby).)
We review the administrative record to determine whether substantial
evidence supports the agency’s findings, rather than limiting review to the
trial court’s findings. (San Diego County Water Authority v. Metropolitan
Water Dist. of Southern California (2017) 12 Cal.App.5th 1124, 1145.) ‘This
deferential standard requires us to presume the correctness of the
administrative ruling, as all reasonable doubts must be resolved in favor of
it.’ (Ryan v. California Interscholastic Federation-San Diego Section (2001)
94 Cal.App.4th 1048, 1077–1078.) Where the trial court has applied the
independent judgment standard, however, ‘an appellate court need only
review the record to determine whether the trial court’s findings are
supported by substantial evidence.’ (Bixby, supra, 4 Cal.3d at p. 143, fn. 10.)”
(Inzana, supra, 35 Cal.App.5th at p. 441.)
B. Whether Independent Review Standard Applied
AMG contends that the trial court erred by reviewing the ALJ’s
decision under the substantial evidence standard. This claim rests on AMG’s
assertion that the ALJ decision affected a fundamental vested right entitling
AMG to the benefit of the trial court’s independent judgment on review of the
decision. The trial court rejected this contention, as do we.
Whether an administrative decision substantially affects a
fundamental vested interest is decided on a case-by-case basis. (Bixby, supra,
9
4 Cal.3d at p. 144.) “In determining whether the right is fundamental the
courts do not alone weigh the economic aspect of it, but the effect of it in
human terms and the importance of it to the individual in the life situation.”
(Ibid.) “In other words, we look to the nature of the right involved as opposed
to the amount of harm or economic injury sustained.” (JKH Enterprises, Inc.
v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1059
(JHK Enterprises).) “‘The ultimate question in each case is whether the
affected right is deemed to be of sufficient significance to preclude its
extinction or abridgment by a body lacking judicial power.’” (Benetatos v.
City of Los Angeles (2015) 235 Cal.App.4th 1270, 1281.) “Fundamental
vested rights are often found in the context of public employment rights,
licensing decisions, public assistance benefits, and land use.” (Saraswati v.
County of San Diego (2011) 202 Cal.App.4th 917, 927.)
As a general rule, courts are less likely to find a fundamental vested
right when a case involves or affects purely economic interests. (JKH
Enterprises, supra, 142 Cal.App.4th at p. 1060; Bixby, supra, 4 Cal.3d at p.
145.) As a result, an administrative decision is not likely to affect a
fundamental vested right just because it increases the costs of doing
business, reduces a business’s profits, or restricts a property owner’s return
to his or her property. (E.W.A.P., Inc. v. City of Los Angeles (1997) 56
Cal.App.4th 310, 325–326; Benetatos v. City of Los Angeles, supra, 235
Cal.App.4th at p. 1281.) For example, the substantial evidence standard has
been found to apply to the review of agency decisions involving (1) the
application of a nuisance ordinance resulting in the reduction of the hours of
operation of an adult bookstore (E.W.A.P., Inc. v. City of Los Angeles, supra,
at p. 325); (2) the required installation of a vapor recovery system to gasoline
pumps that increased the cost of doing business (Mobil Oil Corp. v. Superior
10
Court (1976) 59 Cal.App.3d 293, 305); (3) the shutdown of a fourth new oil
refinery due to permit violations, resulting in a reduction in the company’s
profits (Standard Oil Co. v. Feldstein (1980) 105 Cal.App.3d 590, 603–606);
and (4) the denial of mobile home park owners’ rent increase requests under
rent control laws (San Marcos Mobilhome Park Owners’ Assn. v. City of San
Marcos (1987) 192 Cal.App.3d 1492, 1502).
No fundamental vested right is involved or substantially affected in the
instant case. The ALJ’s decision involved an unpermitted billboard on the
property and required AMG to remove the billboard and pay a penalty of
$166,000. The impact of the decision on AMG was “purely economic.” AMG
resists this conclusion by arguing that the ALJ made an adverse inference
against AMG based on Garcia’s invocation of his Fifth Amendment right at
the hearing. This argument does not articulate the fundamental vested right
held by AMG and how the ALJ’s decision involved or substantially affected
that right. Moreover, we address this wholly separate argument in the
section below.
AMG exclusively relies on two federal district court cases to support its
argument, KLA-Tencor Corp. v. Murphy (N.D. Cal. 2010) 717 F.Supp.2d 895(KLA-Tencor Corp.) and Paul Harrigan & Sons, Inc. v. Enterprise Animal Oil
Co. (E.D. Penn. 1953) 14 F.R.D. 333 (Paul Harrigan & Sons, Inc.). In KLA-
Tencor Corp., the district court held that a corporation’s assertion of its
officer’s Fifth Amendment right against self-incrimination in its answer to a
cause of action in the complaint was properly treated as a denial and not
deemed an admission. (717 F.Supp.2d at p. 907.) The court explained that
where the corporation was a small company, requiring it to substantively
answer the complaint would be tantamount to requiring an answer by an
officer in contravention of his personal Fifth Amendment rights. (Ibid.) In
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Paul Harrigan & Sons, Inc., the Pennsylvania district court issued a
protective order postponing discovery until the termination of a parallel
criminal action. (14 F.R.D. at p. 334.) The court held that compelling
discovery under the circumstances would contravene the Fifth Amendment
rights of the individual defendants. (Id. at p. 335.) We are not persuaded
that these federal cases have any application here. Accordingly, the trial
court properly applied the substantial evidence test.
C. Whether Caltrans Met Its Burden of Proof at the Administrative
Hearing
AMG asserts that Caltrans failed to meet its burden of proof because
(1) the Outdoor Advertising Lease Agreement was not properly
authenticated, (2) there was insufficient evidence that AMG built and
operated the billboard on the property, and (3) the ALJ made an adverse
inference against AMG based on Garcia’s invocation of his Fifth Amendment
right against self-incrimination.
1. Authentication of the Outdoor Advertising Lease Agreement
Caltrans submitted undisputed evidence that the billboard from the
property was not permitted, in violation of the OAA. However, the sole
document connecting AMG with the billboard was a copy of the Outdoor
Advertising Lease Agreement between PHS and AMG. AMG contends there
was insufficient foundation to admit the lease, and therefore Caltrans failed
to meet its burden of proving AMG operated the billboard.
Writings must be authenticated before they are received into evidence.
(Evid. Code, § 1401.) Authentication means either the introduction of
evidence sufficient to sustain a finding that the writing is what the proponent
12
claims it is, or “the establishment of such facts by any other means provided
by law” (e.g., by stipulation or admission). (Evid. Code, § 1400, subd. (b).) In
the Evidence Code or elsewhere, the statutory listing of means of
authentication is not exclusive. (Evid. Code, § 1410.) There is no strict
requirement as to how a party authenticates a writing. (Ramos v. Westlake
Services LLC (2015) 242 Cal.App.4th 674.) A court can rely on indirect and
circumstantial evidence to establish the authenticity of a writing. (People v.
Landry (2016) 2 Cal.5th 52, 87.)
As AMG correctly notes in its briefing, adherence to the technical rules
of evidence is not required in an administrative hearing. (Gov. Code,
§ 11513, subd. (c).) In an administrative hearing, “[a]ny relevant evidence
shall be admitted if it is the sort of evidence on which responsible persons are
accustomed to rely in the conduct of serious affairs, regardless of the
existence of any common law or statutory rule which might make improper
the admission of the evidence over objection in civil actions.” (Ibid.; see
MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 158–159.) “Hearsay evidence
may be used for the purpose of supplementing or explaining other evidence
but over timely objection shall not be sufficient in itself to support a finding
unless it would be admissible over objection in civil actions.” (Gov. Code,
§ 11513, subd. (d).)
The ALJ heavily relied on the stipulation in ruling that Caltrans had
met its burden to authenticate the lease. As previously noted, the stipulation
was entered into between Caltrans, PHS, and AMG through their respective
attorneys of record. The stipulation stated, in pertinent part, “On April 6,
2015, Caltrans received from PHS documents pertaining to the displays,
including a copy of the Outdoor Advertising Lease Agreement between PHS
13
and AMG. Subsequently, AMG was added as a respondent.” The stipulation
was signed by Haynes, then-counsel for PHS and AMG, on March 22, 2016.
We acknowledge the stipulation relied on by the ALJ only concerned a
request for continuance of the administrative hearing. The parties did not
stipulate to the authenticity of the lease, and the referenced lease was not
attached to the stipulation. However, the stipulation was signed by AMG’s
then-counsel and therefore the admissions of fact made in the stipulation
were binding on AMG. There is no dispute Haynes signed the stipulation as
counsel of record for AMG. Thus, “responsible persons . . . in the conduct of
serious affairs” would be accustomed to relying on the stipulation as evidence
of factual admissions made by AMG through its counsel.
As noted by the ALJ, the lease referred to in the stipulation had the
same title (i.e., Outdoor Advertising Lease Agreement) as the lease admitted
into evidence. The stipulation stated PHS provided a “copy of the Outdoor
Advertising Lease Agreement between PHS and AMG” to Caltrans and that
the lease was the basis for Caltrans adding AMG as a responding party to the
administrative action. The lease admitted into evidence named AMG as the
lessee, appears to be signed by Garcia, and pertains to advertising displays
on the property. Thus, “responsible persons . . . in the conduct of serious
affairs” would reasonably conclude the stipulation referenced the lease
admitted into evidence.
Furthermore, Champaneri and Anzo testified that they received a copy
of the Outdoor Advertising Lease Agreement from a Caltrans attorney. This
testimony corroborates the admission in the stipulation that Caltrans
received a copy of the lease from PHS. Because PHS was the owner of the
property and named as the lessor in the lease, Caltrans’s receipt of the lease
is evidence that the writing is what Caltrans claims it to be; a lease of the
14
property executed by AMG and PHS. While AMG objected to this testimony
as hearsay, the ALJ properly considered the testimony as administrative
hearsay. (See Gov. Code, § 11513, subd. (d).) Therefore, the stipulation,
along with other circumstantial evidence, is sufficient authentication under
the “responsible persons” test and satisfied Caltrans’s initial burden of proof
at the administrative hearing.
AMG argues another lease casts doubt on the authenticity of the lease
provided by Caltrans. AMG cites to an email from a Los Angeles Deputy City
Attorney referring to the November 2013 Outdoor Advertising Lease
Agreement executed by Garcia that “matches the other lease agreement
executed by Stephens,” the third defendant in the parallel criminal case. The
“other lease agreement executed by Stephens” was not admitted into evidence
or even referenced in the administrative hearing. Rather, the email was
attached to AMG’s prior request to continue the administrative hearing based
on the pending criminal proceeding. This additional lease was not attached
to or detailed to any extent in the email. Thus, the email does not undermine
Caltran’s prima facie evidence of the authenticity of the lease.
AMG asserts that the ALJ’s reliance on the stipulation violated
Garcia’s Fifth Amendment right against self-incrimination. Garcia is not a
party to this appeal and AMG does not have standing to assert a claim on his
behalf. (See Code Civ. Proc., § 902 [appeal may be taken only by an
aggrieved party]; see also Rebney v. Wells Fargo Bank (1990) 220 Cal.App.3d
1117, 1128 [appellant cannot assert error that injuriously affected another
party], disapproved on another ground in Hernandez v. Restoration
Hardware, Inc. (2018) 4 Cal.5th 260.) That said, Garcia was not a responding
party in the administrative proceeding, and the stipulation was made on
behalf of AMG only. The Fifth Amendment privilege against self-
15
incrimination applies to and may be invoked by, natural persons, not
corporations or other organizations. (Braswell v. United States (1988) 487
U.S. 99, 102.) Counsel for AMG did not waive any such privilege by
executing the stipulation on the corporation’s behalf.
We conclude the ALJ did not prejudicially abuse his discretion in
overruling AMG’s objection to the admission of the Outdoor Advertising
Lease Agreement and finding that Caltrans met its burden to authenticate
the lease. Thus, substantial evidence supports the ALJ’s ruling on its
admission.
2. Sufficiency of the Evidence
AMG argues there is insufficient evidence that it built and operated the
billboard on the property. The crux of AMG’s argument is that the ALJ erred
in admitting the Outdoor Advertising Lease Agreement into evidence, which
we previously rejected. We conclude the ALJ did not prejudicially abuse his
discretion in finding there was sufficient evidence.
The Outdoor Advertising Lease Agreement, dated November 1, 2013,
appeared to be signed by Garcia, the sole officer of AMG. Once
authenticated, the ALJ could reasonably infer that it was signed by Garcia.
The lease stated that the “lessor” leased the property to AMG for 20 years
“for the purpose of erecting and maintaining an advertising sign thereon.”
Caltrans presented undisputed testimony that the billboard was not
permitted and remained on the property at the time of the administrative
hearing. Based on the lease, the ALJ could reasonably infer that AMG
erected and maintained the billboard on the property. There was no evidence
presented to the contrary. AMG points to the lease provision stating that the
lease could be canceled within 120 days if the lessee (AMG) was unsuccessful
16
in obtaining the necessary entitlement to construct the sign. But again, there
is no evidence that AMG did so, and it was reasonable for the ALJ to infer
that AMG did not cancel the lease.
Therefore, we conclude substantial evidence supports the ALJ’s
findings that AMG operated and maintained the billboard on the property
without a permit, in violation of the OAA.
3. Garcia’s Invocation of his Fifth Amendment Right
AMG argues that, in finding Caltrans met its burden of proof to
authenticate the Outdoor Advertising Lease Agreement, the ALJ made an
adverse inference against the corporation when Garcia invoked his Fifth
Amendment right and refused to testify. We are not persuaded. At the
hearing and in his proposed decision, the ALJ noted that Caltrans met its
initial burden, and AMG failed to provide any evidence to rebut Caltran’s
prima facie evidence of the authenticity of the lease.
AMG asserts that the ALJ’s comments on Garcia’s failure to testify
were reminiscent of the error made in Griffin v. California (1965) 380 U.S.
609 (Griffin). In Griffin, the United States Supreme Court held that a trial
judge’s and prosecutor’s comments to a jury on the criminal defendant’s
failure to testify violated the self-incrimination clause of the Fifth
Amendment. (See Mitchell v. U.S. (1999) 526 U.S. 314, 316–317 [citing
Griffin and stating “[t]he normal rule in a criminal case permits no negative
inference from a defendant’s failure to testify”].) This is not a criminal case,
and as previously stated, the ALJ did not comment on Garcia’s assertion of
the Fifth Amendment in issuing the decision. Rather, the ALJ found that
AMG failed to present any evidence to refute it owned and operated the
unpermitted billboard on the property. AMG also provides no authority
17
supporting the assertion that comments regarding a witness’s failure to
testify were a constitutional violation or, at the very least, improper. In fact,
“while the [Fifth Amendment] privilege of a criminal defendant is absolute, in
a civil case a witness or party may be required either to waive the privilege or
accept the civil consequences of silence if he or she does exercise it.” (Alvarez
v. Sanchez (1984) 158 Cal.App.3d 709, 712.)3
DISPOSITION
The judgment is affirmed. Caltrans is awarded its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZUKIN, J.
WE CONCUR:
CURREY, P. J.
MORI, J.
3 To the extent AMG contends the ALJ violated Garcia’s Fifth
Amendment rights, AMG lacks standing to assert this constitutional claim on
its officer’s behalf. (See Code Civ. Proc., § 902; see also Rebney v. Wells Fargo
Bank, supra, 220 Cal.App.3d at p. 1128.) As noted, Garcia was not a
responding party in the administrative hearing nor is he a party to this
appeal.
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