Smith v. California Coastal Commission CA2/5

Filed 12/13/22 Smith v. California Coastal Commission CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
STEPHANIE SMITH, as Trustee of B313040
the Lovely Family Trust,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No.
20STCP00783)
v.
CALIFORNIA COASTAL
COMMISSION et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James C. Chalfant, Judge. Affirmed.
Law Office of Richard Jacobs and Richard Jacobs for
Plaintiff and Appellant.
Rob Bonta, Attorney General, Daniel A. Olivas, Senior
Assistant Attorney General, Andrew M. Vogel, Supervising
Deputy Attorney General, and Justin J. Lee, Deputy Attorney
General, for Defendant and Respondent California Coastal
Commission.
Michael N. Feuer, City Attorney, Terry Kaufmann Macias,
Assistant City Attorney, and Amy Brothers, Deputy City
Attorney, for Defendant and Respondent City of Los Angeles.
2
Stephanie Smith, in her capacity as trustee of the Lovely
Family Trust (the Trust), challenges the California Coastal
Commission’s (CCC’s) denial of the Trust’s application to
demolish a 2,634 square foot house on a bluff in Pacific Palisades
and build a nearly 20,000 square foot residential compound in its
place. The trial court upheld the CCC’s decision in
administrative mandamus proceedings. We are asked to decide
whether the trial court properly disposed of certain issues on
demurrer and the sole claim that remained after the demurrer
ruling—an alleged procedural due process violation arising from
the omission of a single document from a CCC staff report—on a
motion for judgment on the writ.
I. BACKGROUND
A. The Property and CCC Jurisdiction
The Trust owns real property located on Puerto Del Mar in
the Pacific Palisades neighborhood of Los Angeles. The site
consists of two adjoining lots totaling approximately 26,580
square feet on a bluff overlooking Pacific Coast Highway. It is
currently occupied by a 2,634 square foot single family home built
in the 1950s.
The site has been plagued by landslides for decades,
landslides that threaten a mobile home park below. In 2011, the
City of Los Angeles (the City) ordered the property’s previous
owner to remedy the “general safety hazard” presented by the
“destabilized . . . slope face.” No remediation was performed
before the Trust purchased the property in 2013—knowing that
the site would require remediation as ordered by the City.
In 2015, the City approved the Trust’s plans for landslide
repair, including construction of a retaining wall and removal
3
and re-compaction of landslide debris. About a year later, the
City separately issued a local coastal development permit
approving the demolition of the existing residence and
construction of several new structures, including “a 12,417
[square foot] residence, a 3,778 [square foot] habitable basement,
a 1,671 [square foot] accessory dwelling unit, 2,060 [square feet]
of garage area,” and two pools. The project also required “4,100
cubic yards of remedial grading.”
The CCC determined the property is located in what is
known as a dual permit jurisdiction area, meaning the Trust
“must obtain a [coastal development] permit from the local entity
[i.e., the City] and after obtaining the local permit, a second
permit from the [CCC].” (Pacific Palisades Bowl Mobile Estates,
LLC v. City of Los Angeles (2012) 55 Cal.4th 783, 794.) In this
case, the dual permit requirement is the product of the City’s
exercise of its authority under Public Resources Code1 section
30600, subdivision (b)(1), which empowers local governments
without a CCC-certified local coastal program to establish
procedures for approving coastal development permits, and
another provision of the California Coastal Act (§ 30000 et seq.)
requiring that certain developments approved in this manner
also obtain a CCC permit. These include developments located
“within 300 feet of the top of the seaward face of any coastal
bluff.” (§ 30601, subd. (2).)
Independent of the dual permit area determination,
permitting approval by the CCC was also required for the Trust’s
proposed construction and landslide repair because the CCC’s
1
Undesignated statutory references that follow are to the
Public Resources Code.
4
executive director appealed the City’s permit approval to the CCC
and the CCC determined the approval raised substantial issues
with respect to geologic hazards, landform alteration, visual
resources, and community character. (§ 30602; Kaczorowski v.
Mendocino County Bd. of Supervisors (2001) 88 Cal.App.4th 564,
569 [“If the [CCC] determines that an appeal presents a
‘substantial issue,’ the permit application is reviewed de novo; in
effect, the [CCC] hears the application as if no local governmental
unit was previously involved, deciding for itself whether the
proposed project satisfies legal standards and requirements”].)
B. The CCC Permit Application
1. Application and correspondence with CCC staff
The Trust submitted its permit application to the CCC in
July 2018. About a month later, CCC staff sent a letter notifying
the Trust the application had been deemed incomplete and the
Trust would need to submit a grading plan indicating the
locations of proposed caissons and a retaining wall, drainage and
runoff plans, an analysis of the development’s visual impact from
various locations, and an analysis of development alternatives.
With respect to the alternatives analysis, the CCC sought
information relevant to whether the proposed development
represented “the minimum amount of landform alteration
required to stabilize the bluff” and requested “a comprehensive
set of alternatives, including, but not limited to: 1) smaller
amounts of grading; 2) alternatives to caissons/retaining walls;
[and] 3) a smaller single-family residence.”
The Trust’s response to the request for more information
regarding development alternatives (a focus of the Trust’s
arguments for reversal) had two components.
5
First, the Trust submitted a letter from its engineer
running just over two pages that suggested, among other things,
building into the bluff provided “stabilization support” that would
be “more effective and aesthetically pleasing” than retaining
walls and, if the design were “reduced or significantly altered,
stabilizing and restoring the slope . . . [would] require more piles
and retaining walls than currently required in the proposed
design . . . .” The engineer’s letter refers to “extensive analyses of
potential alternatives” but does not discuss these in any detail.
Second, the Trust submitted a single-page plan (the
Diagram) for an alternative design drawn by the Trust’s
architect; in this alternative design, the site is divided into two
parcels with a separate residence on each. The Diagram features
an 8,300 square foot home (plus two basement levels) and a 5,000
square foot home (plus one basement level) and proposes a total
“buildable area” of 37,000 square feet.2 As described in the
Trust’s attorney’s cover letter, the Diagram shows that “if the two
parcels comprising the project were to be developed
independently, over 30,000 square feet of residential structures
could be constructed by right without any variances[,] which
would be substantially larger than the proposed project.”
CCC staff confirmed receipt of these additional documents
in September 2018 and stated they would “review the materials
within the next week or so[ ] and let [the Trust] know if
additional information [was] needed.” The Trust sent several
2
The Diagram sketches only the lot lines and perimeter of
each structure. There is no written analysis suggesting, for
example, this proposal requires less landform alteration than a
potential plan for two smaller homes.
6
follow-up emails over the next couple months to check the status
of its application, and CCC staff replied in November 2018 that
the project was “still under review.” More than a year later, in
January 2020, the Trust sent multiple emails to CCC staff
regarding its application, culminating in a request that the CCC
“confirm” within one week “that the permit/clearances will be
issued” or the Trust would seek to compel compliance.
That same month, CCC staff informed the Trust it needed
“a number of additional materials . . . to adequately analyze the
project.” Among other things, CCC staff indicated the Trust’s
grading plans and alternatives analysis did not address issues
raised in 2018. Specifically, staff did not have sufficient
information to determine whether proposed caissons and
retaining walls represented the minimum necessary to stabilize
the bluff, and the Trust failed to analyze the possibility of a
smaller single family residence. CCC staff noted they had
received the Diagram for two homes, but this “did not provide
any further details or context of the two residences which would
be necessary to understand the extent and scope of the proposed
alternative for a meaningful analysis.” The Trust responded it
had “fully complied” with all of the CCC’s requests and it would
“figure out [its] next steps” based on guidance at the hearing on
its application.
CCC staff prepared a report prior to the hearing before the
CCC itself. The staff report recommended the agency deny the
Trust’s permit application because the proposed development is
inconsistent with Coastal Act provisions regarding community
character, visual resources, landform alteration, and geologic
7
hazards. (§§ 30251, 30253.3) The features of the proposed
development cited in the report as problematic include the
proposed new construction’s prominent position atop the bluff
and down its otherwise largely undeveloped face,4 the
development’s size relative to nearby homes,5 its reliance on bluff
3
Section 30251 states “[t]he scenic and visual qualities of
coastal areas shall be considered and protected as a resource of
public importance. Permitted development shall be sited and
designed to protect views to and along the ocean and scenic
coastal areas, to minimize the alteration of natural land forms, to
be visually compatible with the character of surrounding areas,
and, where feasible, to restore and enhance visual quality in
visually degraded areas. New development in highly scenic
areas . . . shall be subordinate to the character of its setting.”
Section 30253 states new development shall, among other
things, “[a]ssure stability and structural integrity, and neither
create nor contribute significantly to erosion, geologic instability,
or destruction of the site or surrounding area or in any way
require the construction of protective devices that would
substantially alter natural landforms along bluffs and cliffs.”
(§ 30253, subd. (b).)
4
The report states: “The proposed residential compound
would cover nearly the entire 26,580 square foot site and would
be 53 feet tall, cascading down the 240 foot high bluff—a coastal
bluff where currently no significant development exists for
approximately 1,000 feet along the coastal bluff edge or face. As
proposed[,] the residential compound would stand out
dramatically from the surrounding development, leaving an
indelible mark on a relatively undisturbed portion of the bluff
that is highly visible from PCH and the beach from the south,
west, and north.”
5
The staff report notes “the floor area of homes in the
neighborhood ranges between 688 square feet and 6,434 square
8
protective devices such as caissons and retaining walls,6 and the
absence of support for the Trust’s assertion that the proposed
development represents the least impactful option for stabilizing
the property.7
feet. The floor area of the average residence was estimated to be
2,778 square feet. At 19,827 square feet (including the garage,
basement, and accessory structure), the proposed residence would
be more than three times as large as the next largest residence,
and more than nine times the size of an average-sized home in
the area.”
6
The report explains “public views along the coast can be
affected as the coastal bluffs retreat landward due to the natural
process of erosion, thereby exposing the protective devices in
whole or in part.” Additionally, “caissons can . . . cause erosion,
loss of natural landforms, and other impacts if they ever need to
be removed.” Consequently, “[i]n cases where blufftop protective
devices have been permitted for geologic stability, the [CCC]
typically prohibits the use of protective devices for accessory
structures (including decks, pools, and even yards) in order to
minimize grading, landform alteration, and future view impacts.”
7
The report emphasizes “[t]he [CCC]’s geologist and senior
engineer . . . reviewed the available project information,
and . . . concluded that there is likely a wide array of conceptual
alternatives for stabilizing portions of the site, sufficient to
support new development or the refurbishment of the existing
home. Such alternatives could use various combinations of
grading, bluff retention systems (e.g., caissons, walls), and/or
deepened foundations, and would need to be evaluated for
technical feasibility and efficacy. Any viable alternatives would
also likely result in some degree of landform alteration or other
coastal resource impacts (e.g., to visual quality). Without a
rigorous analysis of these factors, there is no basis to conclude
9
The staff report attached various appendices and exhibits,
including the Trust’s response to the August 2018 notice of
incomplete application. It did not, however, include the single-
page Diagram among these materials.
2. Hearing
The CCC held a public hearing on the Trust’s permit
application in February 2020. CCC staff and the Trust’s attorney
gave presentations.8 The Diagram (or its absence in the
materials submitted with the staff report) was not mentioned by
anyone.
The panel of six commissioners voted unanimously to deny
the permit and adopted the recommended findings set forth in
the staff report. Most of the commissioners also made oral
remarks during the hearing regarding their views of the proposed
development. A sampling includes the following:
• Commissioner Caryl Hart: “[T]he development, as
proposed, violates the Coastal Act. For us to approve it, we
would approve violations of the Coastal Act. The bluff
itself, as is described in the report, looms over Highway
One, Will Rogers State Beach, Sylmar View Park, and Las
Pulgas Canyon, which are very valuable coastal
resources . . . . I’m having a very hard time understanding
how the applicant could propose a 19,827 square foot, 53
foot tall compound, which really it is—with that kind of
that the substantial landform alteration that would result from
the proposed project has been minimized.”
8
Several members of the public also spoke to express their
opposition to the development.
10
impact on visual resources. It’s almost as if the Coastal Act
doesn’t exist. To me, it’s such a blatant, clear violation of
Section 30251 [scenic and visual qualities] of the Coastal
Act, I can’t exactly comprehend the proposal, frankly.”
• Commissioner Mike Wilson: “I agree with the staff, with
relationship to [Coastal Act] Sections 30251 and 30253
[stability and structural integrity]—I concur.”
• Vice Chair Donne Brownsey: “[T]his project, to me, fails on
a number of grounds . . . articulated well in the Staff
Report. Besides being an extremely hazardous area, which
I don’t believe the project addresses sufficiently, for not
only the safety of the residents, but also the safety for their
neighbors. I think it’s really out of scale, given the
community character, and certainly the visual resources,
with respect to . . . the beach . . . and the community, and
the highway . . . .”9
• Chair Steve Padilla: “I think this record is replete with
sufficient evidence to demonstrate that there is substantial
concern regarding development in geological hazardous
areas, and impacts to visual resources. [I d]on’t think we
need to go much further than that.”
• Commissioner Roberto Uranga: “Taking in all the
comments from my colleagues, there’s . . . only one way to
vote on this.”
9
Vice Chair Brownsey also asked, “is this not an extremely
hazardous area, and a proposal for which we would need an
incredible amount of technical information before we could
proceed?”
11
In addition to these statements (and as we discuss more
fully post), the Trust in this appeal also calls attention to a line of
inquiry by Commissioner Katie Rice addressing whether the bluff
might be “completely unbuildable” given that “they [i.e., the
Trust] don’t have a lot of footprint to work with.”
C. The Administrative Mandamus Proceedings
1. Petition, demurrers, and amended petitions
The Trust challenged the denial of its permit application by
filing a combined petition for administrative mandamus and
complaint for declaratory relief naming both the CCC and the
City as defendants and respondents. As styled by the Trust, the
petition and complaint alleged two enumerated causes of action:
an administrative mandamus cause of action and a cause of
action for declaratory relief. These enumerated causes of action,
however, alleged multiple theories of liability: (1) the CCC denied
its permit application because the Trust had not provided enough
information about the proposed development, which, in the
Trust’s view, was improper because the CCC was required to
issue a notice of incomplete application within 30 days of receipt
of the Trust’s supplemental materials in September 2018
pursuant to the Permit Streamlining Act (Gov. Code, § 65920 et
seq.); (2) the staff report omitted “various items”; (3) provisions of
the Coastal Act addressing community character and visual
resources are void for vagueness; and (4) the Trust was given
disfavored treatment because CCC staff did not provide it with
support extended to other applicants. The petition and complaint
also sought a declaration that the City’s order to comply
“supersede[d]” the CCC’s analysis of community character and
12
visual impact and, in the alternative, the City’s order to comply
with landslide remediation was “void for impossibility.”
The CCC and the City demurred to the Trust’s petition and
complaint. The CCC argued: the Permit Streamlining Act issue
was moot because the agency denied the application on its merits,
the Coastal Act was not unconstitutionally vague, the Trust did
not allege an outrageous or egregious abuse of power sufficient to
establish a violation of its substantive due process rights, and
state law preempted the City’s order to comply. The City argued,
among other things, that the Trust’s claim against the City was
not ripe because the Trust unjustifiably assumed the CCC would
not approve alternative plans to comply with the City’s order to
rehabilitate the hillside.
As to the City’s demurrer, the trial court sustained it
without leave to amend. As to CCC’s demurrer, the trial court
sustained it but gave the Trust “leave to amend on . . . two issues
only”: “[O]ne, did the [CCC] adopt the staff report, yes or no?
And two, did the staff report leave out instructions to affect
anything that the [Trust] submitted and, if so, what is the
prejudice to the [Trust]?” The trial court emphasized that the
Trust had, “at most,” a potential argument that its procedural
due process rights were violated.
The Trust thereafter filed a first amended petition and
complaint, and at a trial setting conference about a month later,
the CCC argued the Trust’s first amended petition did not
conform to the trial court’s earlier order because it raised issues
on which the trial court had already ruled and because it failed to
allege the Trust was prejudiced by any omission from the staff
report. With respect to “grounds that were raised on
demurrer . . . with which the court agreed in its ruling,” the trial
13
court stated “there’s no reason to re-raise that or make a motion
to strike or anything. Those are by the wayside as far as I’m
concerned. . . . All that is left is what I gave [the Trust] to amend
to allege [sic].” As to the Trust’s failure to amend and allege
prejudice from anything missing in the report staff submitted to
the CCC, the trial court issued an order to show cause “for
dismissal for failure to properly amend.” The Trust then
prepared a second amended petition and, when the CCC
indicated it planned to demur because the Trust had still not
alleged prejudice, the trial court allowed the Trust a final
opportunity to amend.
The Trust’s third amended petition and complaint is the
operative pleading. The document is substantively identical to
the Trust’s earlier pleadings but for the addition of allegations
that attempt to demonstrate prejudice to the Trust from
omissions in the CCC staff report. Among other things, the
amended pleading alleges the CCC would have approved the
development if staff had included all pertinent documents in its
report because at least two commissioners indicated they needed
additional information. In particular, the pleading quoted Vice
Chair Brownsey’s comment regarding the need for “an incredible
amount of technical information” and Commissioner Rice’s query
as to whether the lots had become “unbuildable.” 10
10
The third amended petition also alleges the CCC “would
have approved the project because the Floor Area Ratio on the
project compared to other new construction in the neighborhood
shows that this project is of a similar character to others already
that were approved [sic].” The petition does not, however, allege
the Trust submitted these data to CCC staff.
14
2. Motion for judgment on the writ
Once the third amended petition and complaint was filed,
CCC filed a motion for judgment on the writ pursuant to Code of
Civil Procedure section 1094 (Section 1094). The CCC argued the
Trust’s procedural due process claim (alleging omissions in the
staff report, i.e., the one-page Diagram) failed as a matter of law
because the Trust did not exhaust its administrative remedies
and could not demonstrate prejudice from the missing Diagram.
The Trust’s opposition to the motion for judgment advanced
procedural and substantive arguments. Procedurally, the Trust
argued the motion for judgment was not timely served, the CCC
was not entitled to rely on extrinsic evidence (specifically,
documents from the proceedings before the CCC), and the motion
should be denied because no administrative record had by then
been prepared. Substantively, the Trust argued the motion was
premature because there were disputed issues of fact (chiefly
concerning the basis for the CCC’s decision) and the CCC’s
unclean hands precluded application of the administrative
exhaustion doctrine.
The trial court granted the CCC’s motion for judgment. As
we shall discuss in more detail, the trial court determined the
Trust was not prejudiced by untimely service of the motion. The
trial court rejected the Trust’s remaining procedural objections
because the motion was properly based on “undisputed facts that
necessarily would be included in the administrative record”
which “ha[d] not been prepared solely because of [the Trust’s]
15
failure to pay a necessary deposit.” On the merits,11 the trial
court found the Trust had not exhausted its administrative
remedies by failing to alert the commissioners to the omission of
the Diagram from the staff report. The trial court also found,
alternatively, that there was no prejudice from the absence of the
Diagram in the staff-submitted materials because the CCC did
not deny the Trust’s permit application because it was incomplete
and the Diagram would not have impacted its analysis.
II. DISCUSSION
The Trust’s appeal of the judgment proceeds on (at most)
three fronts. None is meritorious.
The Trust continues to press its procedural arguments
against the motion for judgment on the writ. The trial court,
however, did not abuse its discretion in hearing the motion for
judgment despite its being served on the Trust two days late, and
the ruling was based on undisputed facts. The Trust’s
contention that the trial court needed to address more than its
procedural due process claim in its motion for judgment ruling
because the court had impermissibly “carved out” portions of a
single cause of action in its demurrer ruling is forfeited for lack of
a contemporaneous objection, misunderstands the demurrer
ruling (granting leave to amend is not a “carve out”), and
incorrectly understands the law on what constitutes a cause of
action in any event.
11
The trial court reasoned the Trust’s declaratory relief claim
“also allege[d] a due process violation” and was “subsumed within
the mandamus claim.”
16
Insofar as the Trust challenges the substance of the trial
court’s grant of the CCC’s initial demurrer apart from the grant
of leave to amend, that challenge fails too. The Permit
Streamlining Act claim is not viable because the CCC denied the
application on its merits, not because it was incomplete; section
30251’s community character and section 32051’s visual
resources provisions are reasonably certain and not
unconstitutionally vague; and the Trust was not penalized for
declining assistance from CCC staff that the Trust asserts is
provided to favored applicants.
Finally, with respect to the procedural due process claim
that is all that was really at issue on the motion for judgment,
the trial court found the claim failed as a matter of law on two
alternative grounds: the Trust’s failure to exhaust its
administrative remedies by bringing this omission to the
commissioners’ attention and lack of any prejudice to the Trust
from the omission. The Trust does not contest the exhaustion
rationale on appeal, which alone warrants affirmance on this
ground, but we will also briefly explain why the trial court
correctly determined the incomplete staff report did not prejudice
the Trust.
A. The Trial Court Did Not Abuse Its Discretion in
Ruling on the Motion for Judgment Despite Untimely
Service
The CCC served its motion for judgment on the writ on
March 3, 2021, 16 court days before the hearing on March 25,
2021. Because the CCC served the document electronically, it
should have been served two days earlier on March 1, 2021, i.e.,
18 court days before the hearing. (Code Civ. Proc., §§ 1005, subd.
17
(b) [moving papers generally required to be served at least 16
days before hearing], 1010.6, subd. (a)(4)(B) [extending notice
period by two days “after service by electronic means”].) The trial
court determined the Trust was not prejudiced by this two-day
delay because the Trust “was able timely to file an opposition and
[did] not show that [it] suffered any prejudice as a result of the
minor delay.”
We will assume for the sake of argument that the Trust’s
reference to untimely service in its opposition and its attorney’s
statement at the hearing that he “had to scramble” to file the
opposition were sufficient to preserve the issue for appeal. (But
see Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 [as a general
matter, “‘a party who appears and contests a motion in the court
below cannot object on appeal or by seeking extraordinary relief
in the appellate court that he had no notice of the motion or that
the notice was insufficient or defective’”].) Our review of trial
court’s decision on the merits, though, is for abuse of discretion.
(Bozzi v. Nordstrom (2010) 186 Cal.App.4th 755, 765.)
The Trust does not dispute the trial court’s finding that it
was not prejudiced by the untimely filing and it offers no other
argument that the trial court abused its discretion.12 Rather, the
Trust appears to take the position that the trial court lacked any
discretion to consider a motion that is not timely served. That is
12
The Trust’s attorney explained at the hearing on the
motion that he “had to scramble” because he “was in depositions
on Monday, Tuesday, Wednesday, and Thursday of that week”—
presumably the week the motion was served. If that is correct, it
is not immediately apparent why service on Monday, March 1,
2021, would have resulted in less of a scramble than service on
Wednesday, March 3, 2021.
18
not the law. (Cal. Rules of Court, rule 3.1300(d) [“No paper may
be rejected for filing on the ground that it was untimely
submitted for filing. If the court, in its discretion, refuses to
consider a late filed paper, the minutes or order must so
indicate”].) Given the minor delay and the fact that many, if not
all, of the issues had been raised previously, the trial court was
well within its discretion to consider the motion on the merits.
B. The CCC Properly Relied on Extrinsic Evidence
Under Section 1094
The Trust cites Section 1094 for the proposition that the
trial court was not authorized to consider extrinsic evidence—i.e.,
anything other than the petition itself—in ruling on the CCC’s
motion for judgment. Section 1094 provides as follows: “If no
return be made, the case may be heard on the papers of the
applicant. If the return raises only questions of law, or puts in
issue immaterial statements, not affecting the substantial rights
of the parties, the court must proceed to hear or fix a day for
hearing the argument of the case. [¶] If a petition for a writ of
mandate filed pursuant to Section 1088.5 presents no triable
issue of fact or is based solely on an administrative record, the
matter may be determined by the court by noticed motion of any
party for a judgment on the peremptory writ.”
Focusing on the first paragraph of Section 1094, the Trust
contends the CCC did not make a “return” to the operative
petition and, as the Trust sees it, the trial court’s analysis should
have accordingly been limited to “the papers of the applicant.”
This first paragraph of the statute, however, merely establishes a
procedure for adjudicating a petition for a writ of administrative
mandamus in the absence of a response by the agency—a
19
procedure that is necessary because a writ may not be granted by
default. (Code Civ. Proc., § 1088; Lewis v. Superior Court (1999)
19 Cal.4th 1232, 1250 [“the court cannot issue the writ by
default, but rather must consider and evaluate the petition before
granting the relief requested, even if the adverse party does not
respond to the petition”].) In this light, the Trust’s discussion of
whether the CCC was required to answer or demur to the third
amended petition before submitting evidence in support of its
motion for judgment misses the point. The first paragraph of
Section 1094 authorizes the trial court to grant a petition based
on the papers of the applicant; it does not prohibit the trial court
from considering evidence in ruling on a motion for judgment
pursuant to the statute’s second paragraph, which is what
happened in this case when the court found the CCC was entitled
to judgment as a matter of law.
We are unpersuaded by the Trust’s contention that the
motion for judgment was nevertheless unauthorized under the
second paragraph of Section 1094 because its petition presented
triable issues of fact and there was no certified administrative
record.13 The only issue presented in the petition was an alleged
13
In its opening brief, the Trust suggests “the parties held off
on preparing the administrative record” due to “numerous
pleadings challenges by [the CCC].” As of January 2021,
however, the Trust’s attorney acknowledged it had not paid a
deposit required to prepare the administrative record and
represented that the Trust would “take care of that right away.”
Nothing in the appellate record indicates it did so. (Code Civ.
Proc., § 1094.5, subd. (a) [“Except when otherwise prescribed by
statute, the cost of preparing the record shall be borne by the
petitioner”].)
20
violation of the Trust’s procedural due process rights. (As we
shall discuss, the trial court, in its ruling on the CCC’s initial
demurrer, properly disposed of the other issues raised in the
Trust’s opening brief.) The dispositive facts relating to the
Trust’s exhaustion of administrative remedies and the CCC’s
stated reasons for denying the permit application were
undisputed.
C. The Trial Court’s Ruling on the Motion for Judgment
Did Not Need to Address Issues on Which It Did Not
Grant Leave to Amend
In its order sustaining the CCC’s demurrer to the Trust’s
original petition and complaint, the trial court granted the Trust
leave to amend only to attempt to allege a violation of its
procedural due process rights. When the Trust apparently
disregarded the narrow scope of leave to amend granted by
repeating various allegations irrelevant to procedural due process
in its first amended complaint, the trial court was clear that the
CCC need not respond to claims that had already been ruled on
in connection with the initial demurrer: “[T]here’s no reason to
re-raise that or make a motion to strike or anything. Those are
by the wayside as far as I’m concerned. . . . All that is left is what
I gave [the Trust] to amend to allege [sic].” Notwithstanding this
directive, the Trust continued to allege facts unrelated to
procedural due process in its subsequent pleadings, including the
operative third amended petition. The trial court refused to
consider these issues in its ruling on the motion for judgment:
“Contrary to [the Trust’s] vague and conclusory allegation that
other issues remain in the matter, the [CCC] correctly notes that
the court sustained the demurrer to all claims other than the due
21
process issue, which is all that is left of the case. . . . There are no
other issues, whether or not they were improperly added to the
[third amended petition].”
Emphasizing that the allegations supporting its various
theories all appeared under a single cause of action in the
original petition, the Trust contends “[t]here is no statutory
authority to use the demurrer process to ‘carve out’ portions of a
cause of action.” The issue is forfeited, however, because the
Trust never raised an objection on this ground in the trial court,
either in connection with the demurrer or the motion for
judgment. (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264-
265.) Beyond the forfeiture, the argument also misunderstands
basic civil procedure in the context of this case, and for more than
one reason. First, granting leave to amend is not a “carve out” of
less than an entire cause of action; if the Trust had filed no
amended pleading, the case would have been over because the
court found the entire petition and complaint defective as then
drafted. Indeed, that is why leave to amend was granted, and the
Trust could not properly disregard the scope of the leave
granted—that is what appeals are for. Second, a cause of action
is not defined by a litigant’s enumerated label. (Eichler Homes of
San Mateo, Inc. v. Superior Court (1961) 55 Cal.2d 845, 847
[“‘The cause of action is simply the obligation sought to be
enforced.’ [Citation.] The same cause of action, of course, may be
stated variously in separate counts. [Citations.] In California[,]
the phrase ‘causes of action’ is often used indiscriminately to
mean what it says and to mean counts which state differently the
same cause of action . . .”].) The trial court’s demurrer ruling in
this case did not impermissibly dispose of less than the full
obligation the Trust sought to enforce.
22
D. Insofar as the Trust Challenges the Trial Court’s
Ruling on the CCC’s Initial Demurrer, the Ruling was
Correct
The Trust’s briefs can be charitably read to argue the trial
court erred in sustaining the CCC’s demurrer as to its claims that
the application was complete as a matter of law pursuant to the
Permit Streamlining Act, section 30251’s provisions relating to
community character and visual resources are unconstitutionally
vague, and CCC staff improperly assists favored applicants. As
we now explain, the trial court’s ruling was correct.
1. Permit Streamlining Act
Government Code section 65943 provides, among other
things, that a permitting agency has 30 days after an application
is received to determine in writing whether the application is
complete. (Gov. Code, § 65943, subd. (a).) In general, if the
agency fails to do so, “the application shall be deemed
complete . . . .” (Gov. Code, § 65943, subd. (a).) The Trust
contends CCC staff’s requests for more information in January
2020 (sent more than a year after the Trust responded to its
notice of incomplete application) amounted to an untimely
determination that the application was incomplete. The CCC
considered—and denied—the application on its merits, however,
and this consideration proves the denial was not based on any
asserted incompleteness. (Cal. Code Regs., tit. 14, §§ 13056,
subd. (a) [a “submitted” application may be deemed “filed” only if
complete], 13057, subd. (a) [staff report to be prepared “for each
application filed pursuant to section 13056”].) Put differently, a
court order declaring the application complete as a matter of law
would not afford the Trust any effective relief because it was
23
denied on the merits. The contention is therefore moot. (People
v. Rish (2008) 163 Cal.App.4th 1370, 1380 [“‘[A] case becomes
moot when a court ruling can have no practical effect or cannot
provide the parties with effective relief’”].)
2. Vagueness
“The vagueness doctrine bars enforcement of ‘“a statute
which either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at
its meaning and differ as to its application.” [Citations.]’
[Citation.]” (In re Sheena K. (2007) 40 Cal.4th 875, 890.)
“Statutory language is not impermissibly vague if its meaning
can be fairly ascertained by reference to other sources, such as
dictionary definitions, similar statutes, the common law, judicial
decisions, or if the words have a common and generally accepted
meaning.” (Ivory Education Inst. v. Dept. of Fish & Wildlife
(2018) 28 Cal.App.5th 975, 982.) Where, as here, a party
challenges a statute as unconstitutionally vague on its face, we
consider “‘only the text of the measure itself, not its application to
the particular circumstances of an individual.’ [Citation.]”14
(Zuckerman v. State Bd. of Chiropractic Examiners (2002) 29
Cal.4th 32, 38-39.)
14
In its briefing on appeal, the Trust suggests it alleged
section 30251 is unconstitutionally vague on its face and as
applied in this case. The Trust’s petition and complaint that was
the subject of the demurrer presented only a facial challenge,
however, based on the general lack of “guidelines” for compliance
with the Coastal Act’s provisions relating to visual resources and
community character. We therefore confine our analysis to the
only legal theory properly presented in the trial court.
24
We will assume for the sake of argument that a
determination that section 30251’s provisions addressing visual
resources and community character are unconstitutionally vague
would warrant issuance of a writ notwithstanding the Trust’s
failure to challenge the denial of its permit application on section
30253 (geologic hazards) grounds as well. As pertinent here,
section 30251 provides that “[t]he scenic and visual qualities of
coastal areas shall be considered and protected as a resource of
public importance. Permitted development shall be sited and
designed to protect views to and along the ocean and scenic
coastal areas, to minimize the alteration of natural land forms,
[and] to be visually compatible with the character of surrounding
areas . . . .”
Ordinances employing similar language to protect views
and community character frequently serve as the basis for land
use decisions that are upheld in the courts, without any difficulty
applying the pertinent standards. (See, e.g., Ross v. City of
Rolling Hills Estates (1987) 192 Cal.App.3d 370, 374-376, 365, fn.
2 (Ross) [land use permit denied based on view protection
ordinance prohibiting “needless destruction and impairment of
views” and providing that “views enjoyed by residents . . . will not
be significantly obstructed”]; Harris v. City of Costa Mesa (1994)
25 Cal.App.4th 963, 968-969 [permit denied based, in part, on
ordinance requiring proposed developments to be “substantially
compatible with developments in the same general area
and . . . not . . . materially detrimental to other properties within
the area”]; Desmond v. County of Contra Costa (1993) 21
Cal.App.4th 330, 337 [permit denied based on ordinance
requiring, among other things, accessory structures to be
“architecturally compatible with overall neighborhood
25
character”].) That is good evidence that the analogous statutory
provisions challenged here are not unconstitutionally vague in all
applications, and the Trust does not meaningfully grapple with
these cases. Reasonable specificity in statutory language is
sufficient, and it is not “‘unfair to require that one who
deliberately goes perilously close to an area of proscribed conduct
shall take the risk that he may cross the line.’ [Citation.]”
(People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1117; accord
People v. Morgan (2007) 42 Cal.4th 593, 606 [“‘“[a] statute is not
void simply because there may be difficulty in determining
whether some marginal or hypothetical act is covered by its
language”’”].) The line drawn by section 30251 may require
further definition when applied in a close case—though not all
cases, which dooms a facial challenge—but it is not a line that
requires guessing at its meaning or invites arbitrary
enforcement.
3. Substantive due process: CCC staff assistance to
other applicants
Section 30335.1 provides that the CCC “shall provide for
appropriate employees on the staff of the commission to assist
applicants and other interested parties in connection with
matters which are before the commission for action. The
assistance rendered by those employees shall be limited to
matters of procedure and shall not extend to advice on
substantive issues arising out of the provisions of this division,
such as advice on the manner in which a proposed development
might be made consistent with the policies specified [elsewhere in
the Coastal Act].” In all iterations of its petition and complaint,
the Trust alleged CCC staff provides prohibited substantive
26
assistance to favored applicants and cited staff reports discussing
other applications—noting, for example, that “the applicant
worked with [CCC] staff in order to resolve . . . visual
incompatibilities with the surrounding neighborhood” and “[s]taff
worked with the applicant to revise the building design to
relocate the parking space to the eastern side of the project lot.”
Assuming without deciding that the Trust’s construction of
section 30335.1 is correct,15 the Trust still failed to state a claim
that its substantive due process rights were violated. (Galland v.
City of Clovis (2001) 24 Cal.4th 1003, 1032 [“arbitrary
government conduct that triggers a substantive due process
violation is not ordinary government error but conduct that is in
some sense outrageous or egregious—a true abuse of power”].)
Moreover, the materials submitted in support of the petition
contradict the Trust’s claim that it was penalized for its
scrupulous adherence to the statute. Rather than declining
substantive assistance from CCC staff, the Trust demonstrated
its unwillingness to meaningfully consider alternative plans by,
for example, taking the unsupported position that the proposed
development would stabilize the hillside in a “more effective and
aesthetically pleasing” manner than any alternative.
E. The Trust’s Procedural Due Process Claim Lacks
Merit
1. Exhaustion
In determining that the Trust was required to inform the
CCC that the one-page Diagram was missing from the materials
15
The CCC contends a matter is not “before the commission
for action” for purposes of section 30335.1 until the hearing date.
27
submitted with the staff report if it wanted to allege a violation of
its procedural due process rights, the trial court “applied a
branch of the exhaustion doctrine known as issue exhaustion.
Issue exhaustion means that ‘[a]dministrative agencies must be
given the opportunity to reach a reasoned and final conclusion on
each and every issue upon which they have jurisdiction to act
before those issues are raised in a judicial forum.’ [Citation.]
This doctrine bears some resemblance to the judicial rule that an
argument that was not presented to a lower tribunal will not be
entertained by a reviewing court. [Citation.] When it applies, an
issue exhaustion requirement advances the general purposes of
the exhaustion rule by, among other things, discouraging the
presentation of skimpy ‘“skeleton”’ arguments to an
administrative agency. [Citation.]” (Hill RHF Housing Partners,
L.P. v. City of Los Angeles (2021) 12 Cal.5th 458, 479; Greene v.
California Coastal Com. (2019) 40 Cal.App.5th 1227, 1237-1238
[applicant who failed to raise issue at CCC hearing did not satisfy
exhaustion requirement].)
In its opening brief, the Trust did not challenge the trial
court’s conclusion that it did not exhaust its administrative
remedies; moreover, the CCC discusses the issue in its
respondent’s brief and the Trust has no rebuttal in its reply. The
Trust has therefore forfeited any challenge to the trial court’s
determination that it failed to exhaust its administrative
remedies. (Christoff v. Union Pacific Railroad Co. (2005) 134
Cal.App.4th 118, 125 [even where “review is de novo, review is
limited to issues adequately raised and supported in the
appellant’s brief”].)
28
2. Prejudice
Even putting the forfeiture aside, the undisputed evidence
establishes the Trust was not prejudiced by the staff report’s
omission of the Diagram. “[P]rocedural due process violations,
even if proved, are subject to a harmless error analysis.
[Citation.]” (Hinrichs v. County of Orange (2004) 125
Cal.App.4th 921, 928.)
Contrary to the Trust’s reading of the commissioners’
remarks during the hearing on its application, there is no
indication the map would have impacted the CCC’s analysis. A
majority of the commissioners stated on the record that the
proposed development was inconsistent with the Coastal Act.
The presenting staff member stated at the hearing that the staff’s
“recommendation for denial [was] not based on the fact that [it]
didn’t have all the information. . . . [W]hat staff really focused
on . . . was just, again, the land form alteration, and the
community character aspects of this project.”16 And the findings
included in the staff report, which the commissioners adopted at
16
The Trust notes the same staff member said the Trust’s
response to the notice of incomplete application “didn’t include all
of the materials requested, namely the caisson plans[ ] and the
project alternatives analysis.” According to the Trust, this
amounted to a misrepresentation that the Trust had not
responded with any sort of alternatives analysis. In context,
however, the staff member’s statements reflect a determination
that the materials submitted were not responsive to the agency’s
requests. Apart from the Diagram, which was referenced in other
materials shared with the commissioners, the commissioners
received all materials analyzing project alternatives.
29
the hearing,17 detail the proposed development’s inconsistencies
with the Coastal Act.
All the Trust offers to argue the contrary is its emphasis on
two remarks by commissioners that it construes as calling for
additional information that it asserts could be found in the
Diagram. First, Vice Chair Brownsey asked whether the
“extremely hazardous” nature of the property called for “an
incredible amount of technical information.” But the Diagram
does not address these hazards in any way, and it can hardly be
said to provide “an incredible amount of information” on any
topic. Second, Commissioner Rice wondered whether the
property might have become “completely unbuildable” to the
point that denial of the application would effect an
unconstitutional taking. According to the Trust, this line of
questioning suggests that, had the commissioners been presented
with the Diagram, “they would have either moved forward with
approval or a taking.” Putting aside the fact that Commissioner
Rice was the only member of the panel who mentioned this
issue—and the vote to deny the application was unanimous—the
Trust takes an exceedingly narrow view of the options available
to the commissioners. There is nothing in the record to indicate
the proposal sketched in the Diagram represents the only
17
Independent of Chair Padilla’s pronouncement that “the
relevant findings are adopted,” regulations implementing the
Coastal Act provide that, “[u]nless otherwise specified at the time
of the vote, an action taken consistent with the staff
recommendation shall be deemed to have been taken on the basis
of, and to have adopted, the reasons, findings and conclusions set
forth in the staff report as modified by staff at the hearing.” (Cal.
Code Regs., tit. 14, § 13096, subd. (b).)
30
economically viable alternative to the proposed near-20,000
square foot project.
DISPOSITION
The judgment is affirmed. The CCC and the City shall
recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
31