Filed 9/28/15 Kretowicz v. Cal. Coastal Commission CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



DIANNE KRETOWICZ,                                                   D066072
as Trustee, etc. et al.,

         Plaintiffs and Appellants,
                                                                    (Super. Ct. No.
         v.                                                          37-2011-00097607-CU-MC-CTL)

CALIFORNIA COASTAL COMMISSION,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of San Diego County, Judith F.

Hayes, Judge. Affirmed.

         Gaines & Stacey and Sherman Louis Stacey, Nanci S. Stacey for Plaintiffs and

Appellants.

         Kamala D. Harris, Attorney General, John A. Saurenman, Assistant Attorney

General, Jamee Jordan Patterson, Deputy Attorney General for Defendant and

Respondent.

         James S. Burling and Christopher M. Kieser for Amicus Curiae Pacific Legal

Foundation.
       Appellants Dianne Kretowicz and Ure Kretowicz, as trustees of the DUK Trust

dated September 9, 1994 (hereafter the Kretowiczes) filed a verified petition for writ of

mandate and complaint against respondent California Coastal Commission (Commission)

in part challenging Commission's decisions to require the Kretowiczes to irrevocably

dedicate public access easements as a condition of their requested amended coastal

development permit for improvements on their La Jolla property. Commission found in

part that there was a history of public access at the site warranting Commission

protection, and that the Kretowiczes' predecessor had accepted the benefits of a permit in

which it had imposed such a condition on the basis of such historic use, precluding the

Kretowiczes' challenge. The trial court denied the Kretowiczes' petition, as well as their

request for declaratory relief, and dismissed a cause of action seeking quiet title against

Commission.

       The Kretowiczes appeal from the ensuing judgment in Commission's favor,

contending the trial court reversibly erred by denying their petition and entering judgment

because (1) it did not provide them with notice or trial on their declaratory relief and

quiet title causes of action; (2) Commission's findings are inadequate, unsupported by the

evidence, and beyond its jurisdiction; (3) the court relied on inapposite case authority;

and (4) substantial evidence does not support the court's conclusion that the Kretowiczes'

predecessor in interest accepted Commission's public access condition.

       We conclude Commission's findings are supported by substantial evidence, and

that the Kretowiczes' predecessor's failure to timely appeal Commission's decision to



                                              2
grant her permit on condition she record an irrevocable offer to dedicate public access

easements bars the Kretowiczes' challenges, including their claim that Commission's

action constitutes an unconstitutional taking. We reject the Kretowiczes' remaining

contentions, and affirm the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       The Kretowiczes own a single family home on Princess Street in La Jolla (the

property), on a lot extending to the shore of the Pacific Ocean, with approximately

190 feet of ocean frontage. In 1978, the property was owned by Jane Baker. In March

1978, Baker applied to the San Diego Coast Regional Commission (the Regional

Commission)1 for a coastal development permit to construct a large addition to the then

existing house. In June 1978, the Regional Commission approved the permit, designated

No. F6760, subject to special conditions relating to geology, slope integrity and drainage.

Permit No. F6760 states that its "terms and conditions shall be perpetual, and it is the

intention of the parties to bind all future owners and possessors of the subject property to

said terms and conditions."

       Legal challenges ensued, including appeals (designated Nos. 221-78 and 133-79)

from decisions of the Regional and State Commissions as well as a superior court petition

for writ of mandate. In the writ petition, the appellant asserted that Commission had




1      Commission is the successor in interest to the Regional Commission. (Pub. Res.
Code, § 30331.) Statutory references are to the Public Resources Code unless otherwise
specified.
                                             3
failed to make specific public access findings required by the Coastal Act of 1976

(§ 30604). Baker, the real party in interest, participated in those proceedings. Baker

completed her proposed construction pending the legal proceedings.

       On September 20, 1979, Commission unanimously granted Baker's permit for her

proposed development, and imposed new special conditions for lateral and vertical public

shoreline access.2 Commission's supporting findings acknowledged that the Coastal Act

required that public access to and along the shoreline be maximized; staff stated in part

that adequate access to the beach below the property did not exist nearby and "[a]lthough

the public has historically had access over the project site, construction of the project has

preceeded [sic] the use of this accessway, thereby diminishing the public's right of access

to the state owned tidelands. An alternative accessway must, therefore, be provided to

offset the burdens this development has placed on [the] public's constitutional right of

access and to assure the conformity of the project to the provisions of [section 30212] of

the [Coastal] Act."3 Commission also made findings about the historical public access to




2      Vertical access is roughly perpendicular to the shoreline. Lateral access allows
members of the public to walk along portions of the shoreline. (See City of Malibu v.
California Coastal Com. (2005) 128 Cal.App.4th 897, 899.)

3       The Kretowiczes do not challenge the sufficiency of the evidence of Commission's
finding of historic public access, and the record contains ample evidence of longtime
access by the public prior to 1979. Section 30212, subdivision (a) provides in part:
"Public access from the nearest public roadway to the shoreline and along the coast shall
be provided in new development projects except where (1) it is inconsistent with public
safety, military security needs, or the protection of fragile coastal resources, (2) adequate
access exists nearby, or (3) agriculture would be adversely affected."
                                              4
the beach in response to Baker's position, stating: "The applicant contends that, because

of the steepness of the bluff, the accessway would not be safe and therefore need not be

provided . . . . This site has historically been used for access to the shoreline below. A

site inspection revealed that it was not difficult to walk down the bluff face and, if minor

improvements were made, the access way could be easily traversed with little damage to

the landforms. The Commission concludes that public access can be provided consistent

with public safety and must, therefore, be provided to find the proposed project consistent

with the Coastal Act." The special permit condition required Baker to submit for

approval, prior to the permit's issuance, "a document irrevocably offering to dedicate to a

public agency or private association approved by the Executive Director easements for

public access to and along the shoreline in accordance with the provisions of this

condition." Commission's decision required that the document "shall be irrevocable for a

period of 21 years running from the date of recordation" and "shall constitute a covenant

running with the land in favor of the People of the State of California binding the

applicant, heirs, assigns and successors in interest to the subject property."

       Days after Commission heard the matter, a representative for the appellant in the

legal proceedings wrote to Commission's legal department to inform it that Baker was

contemplating not making the offer of dedication; that Baker might take the position that

she had built her construction under a valid permit. Several months later, the appellant's

representative noted in a letter to the attorney general that Commission had voted to find




                                              5
Baker in violation and had referred the matter to the attorney general for enforcement.

The representative asked the attorney general to penalize Baker for her violation of the

dedication condition.

       Baker did not submit an irrevocable offer to dedicate the easement. In 1980, she

sought to amend permit No. F6760 to approve already completed drainage that differed

from the prior permit condition. She eventually sold the property. In an April 1989

handwritten "statement of understanding" to the buyer signed by Baker, Baker's son who

was also her sales representative wrote: "Jane Baker has agreed to California Coastal

Commission stipulations, File #A-133-791/F6760, dated Sept. 20, 1979. These

provisions state generally the requirements for drainage and easement conditions. It is

understood that any purchase by you would require acknowledgment of these

declarations, including the future recording of emergency or public access to the beach."4




4       According to the Kretowiczes, Commission did not make any findings relating to
this document. They suggest, and Amicus Pacific Legal Foundation asserts, that this
document is a forgery based on declarations the Kretowiczes produced in support of their
motion for new trial. But Commission did find Baker had accepted the permit's benefits,
as did the trial court. In assessing whether Commission's findings are supported by
substantial evidence and the findings support its decision, any reasonable doubts must be
resolved in favor of Commission, which is the sole arbiter of the evidence and judge of
credibility. (See Paoli v. California Coastal Com. (1986) 178 Cal.App.3d 544, 550;
Pescosolido v. Smith (1983) 142 Cal.App.3d 964, 970-971.) The Kretowiczes have not
shown the statement of understanding is so suspect that we should reject Commission's
decision as unreasonable. (See Reddell v. California Coastal Com. (2009) 180
Cal.App.4th 956, 962 [" ' "Courts may reverse an agency's decision only if, based on the
evidence before the agency, a reasonable person could not reach the conclusion reached
by the agency," ' " italics omitted].)
                                             6
       Thereafter, the property became bank-owned through foreclosure. In early 1994,

the Kretowiczes purchased the property from Union Bank. At that time, the La Jolla-La

Jolla Shores Local Coastal Program Addendum (La Jolla LCP) identified shoreline

access at Princess Street, stating in part: "As a condition of a permit to build a single-

family house, the State Coastal Commission required the owner of the bluff top lot to

dedicate a 4-foot wide vertical easement along one side of the property from the Princess

Street cul-de-sac to the shoreline. The owner has challenged the validity of the condition

and no offer of dedication has been made. The State Attorney General has apparently

decided not to pursue an enforcement of the condition, although the possibility of future

litigation remains. The site represents one of two potential routes to a remote section of

shoreline accessible only during low tides."

The Kretowiczes File for a Coastal Development Permit Following the City of San

Diego's Discovery of Unauthorized Improvements

       In 1997, the Kretowiczes applied for a coastal development permit after a code

enforcement complaint reported numerous unpermitted landscape and hardscape

improvements. Though the City of San Diego eventually issued the permit,5 that

decision was appealed to Commission on grounds it was inconsistent with permit No.

F6760's public access requirements and the Kretowiczes withdrew the application. As




5       The City of San Diego had recommended the planning commission approve the
permit, acknowledging Commission's 1979 requirement of a public access easement, but
the City recommended dedication of an easement for limited use such as for educational
activities and lifeguard rescue.
                                               7
early as 2001, the Kretowiczes went ahead with numerous unpermitted improvements,

for which they were assessed civil penalties in December 2007.

Commission Denies The Kretowiczes' Request for Relief from the 1979 Public Access

Dedication Requirements, finding the Conditions Valid as Against Them

       In July 2004, the Kretowiczes applied for a new coastal development permit.

After Commission advised them their proposed work required an amendment to permit

No. F6760, in August 2004 they filed an application to amend permit Nos. F6760 and

F6760A, eventually denominated by Commission as No. A-133-79-A1/F6760A2, to

authorize certain improvements and offering to provide lifeguard rescue access to the

beach below. In a May 2005 report, Commission staff observed: "It was routine practice

at the time for the State Commission to assign a different permit number when a Regional

Commission permit was appealed to it. The permit would then be issued with the State

Commission number, not the Regional Commission number. Here, however, the

Regional Commission permit had been issued during the litigation/appeal and therefore,

the permit as initially issued had the F6760 number of the Regional Commission. Thus,

the permit is identified by two numbers. It should be noted that the conditions of

approval of F6760 all addressed what construction was approved or how the construction

should occur, and are not the type of conditions that continue to apply indefinitely. Thus,

since the addition was already completed when the State Commission acted on the

appeal, the conditions of F6760 had already been met. Therefore, it was appropriate for

the State Commission to simply impose the additional condition that was necessary for



                                             8
public access, rather than reissue the permit with all the conditions. To avoid any

confusion, and for the sake of completeness, the permit for the addition is identified as

CDP A-133-79-F6760." Staff disagreed with the Kretowiczes' position that permit No.

A-133-79 had expired, stating: "The State Commission permit, A-133-79, which was an

appeal of F6760, was effectively issued at the time it was approved because the

development had already commenced. Because the permit that was on appeal had

already been issued by the Regional Commission and the addition was already

completed, the wording of the condition for public access imposed by the State

Commission in A-133-79 indicating that the condition had to be satisfied 'prior to

issuance of the permit' was an oversight or poor choice of words." Commission staff

found "CDP A-133-79 is valid and that the condition of approval continues to apply to

the applicant's property."

       Commission approved the permit amendment for certain of the improvements but

denied the Kretowiczes' request to modify the 1979 public access condition. It found the

Kretowiczes were bound by the 1979 public access condition because by completing her

construction under coastal development permit No. F6760, Baker had accepted the

benefits of the permit; removal of the public access condition would be inconsistent with

requirements of the Coastal Act (§§ 30210-30212); and there was substantial evidence of

public prescriptive rights or an implied dedication of a public easement, obligating

Commission to ensure development did not interfere with such historical use.




                                             9
       The Kretowiczes filed a legal challenge and Commission cross-complained, but in

2007 and 2008 they entered into settlement agreements that in part would have postponed

any public access easement for specified periods of time, including 15 years after the

death of both Kretowiczes. The Kretowiczes applied for permit amendments to reflect

the settlement agreements' terms. Though Commission staff initially recommended that

Commission approve the permit on those conditions, the Commissioners rejected the

permit amendment's terms in the face of heavy public opposition. Ultimately, in July

2011, Commission approved the Kretowiczes' requested permit amendment subject to

special public access condition Nos. 2 and 3, requiring them to execute and record

irrevocable offers to dedicate lateral and vertical public access easements. In revised

findings, Commission stated that in 1979 it found substantial evidence of historic public

use requiring the need for Baker to record an irrevocable offer of dedication and that

though years had passed, those facts remained the same. It found Ure Kretowicz was a

sophisticated developer who knew about development permit requirements, and had he

checked with Commission's district office, he would have learned of the permit history

and its public access requirements. Commission found the requirement for an irrevocable

offer of dedication was "still valid today."

The Present Action Challenging Commission's 2005 and 2011 Decisions

       The Kretowiczes petitioned for a writ of mandate, and in February 2012, filed a

first amended petition challenging Commission's 2005 and 2011 actions and asserting,

among others, causes of action for declaratory relief, quiet title, unconstitutional taking,

injunctive relief and violation of their civil rights. Commission successfully demurred to

                                               10
the injunctive relief and civil rights causes of action, and thereafter the court bifurcated

the writ of mandate issues from the declaratory relief and quiet title claims. In part, its

order states that the writ of mandate issues will be heard separately from the third and

fourth causes of action for declaratory relief and quiet title, and "[t]he Court will set a

further trial date on the declaratory relief and the quiet title causes, if necessary, after the

ruling on the writ of mandate."

       After examining the administrative record as well as the pleadings and documents

in the petition, and hearing the parties' arguments, the trial court issued a statement of

decision denying the Kretowiczes' writ of mandate causes of action. It ruled

Commission's decisions were supported by substantial evidence of historic public use;

that the public access condition ran with the land and Baker's failure to record the

dedication did not extinguish the public's right to access, but was irrelevant because Ure

Kretowicz, a prominent real estate developer, would have learned of the permit

conditions had he gone to Commission's office. It further found Baker had knowledge of

the permit condition but never challenged it, rendering it free from collateral attack. The

court ruled estoppel, laches, and waiver did not apply to the public access condition. The

court dismissed the Kretowiczes' quiet title cause of action, ruling Commission had no

claim to any property interest in the Kretowiczes' property and they could not maintain

such a cause of action. As to the Kretowiczes' request for declaratory relief, the court

denied it on grounds the statute of limitations did not preclude Commission from

enforcing the public access condition because (1) passage of time would not legalize

ongoing violations of such conditions and (2) Code of Civil Procedure section 315 did

                                               11
not apply to the property, which was deemed for public use under the public access

condition.

       The Kretowiczes unsuccessfully moved for a new trial, and thereafter filed this

appeal.

                                        DISCUSSION

             I. Judgment on Declaratory Relief and Quiet Title Causes of Action

       The Kretowiczes contend the court reversibly erred by entering judgment on their

declaratory relief and quiet title causes of action without notice or trial, after having

bifurcated the writ of mandate claims. They argue that under Code of Civil Procedure

section 594 they were entitled to notice that those claims were to be tried, but the court

only gave notice that the writ of mandate causes of action were to be tried. According to

the Kretowiczes, entry of judgment without the sending of that notice is reversible error

under Urethane Foam Experts, Inc. v. Latimer (1995) 31 Cal.App.4th 763, 767.

       The contention is without merit. Code of Civil Procedure section 594 states in

part: "In superior courts either party may bring an issue to trial or to a hearing, and, in

the absence of the adverse party, unless the court, for good cause, otherwise directs, may

proceed with the case and take a dismissal of the action, or a verdict, or judgment, as the

case may require; provided, however, if the issue to be tried is an issue of fact, proof shall

first be made to the satisfaction of the court that the adverse party has had 15 days' notice

of such trial . . . ." The purpose of this provision is to prevent the possibility of

proceedings taken against a party in his absence where that person has, by reason of



                                               12
insufficient notice or no notice of the time of trial, been unable to appear. (Au-Yang v.

Barton (1999) 21 Cal.4th 958, 962-963.) Compliance with the statute is mandatory in

that a court may not shorten the time for notice or fail to give notice and then proceed in a

party's absence. (Id. at p. 963.) Thus, in Urethane Foam Experts, Inc., the appellate

court reversed a judgment entered after a trial at which the defendant did not appear

because notice was improperly sent. (Urethane Foam Experts, Inc., supra, 31

Cal.App.4th at p. 767.) Because in this case there was no issue of the trial court

proceeding with a trial in the Kretowiczes' absence, they have shown no violation of that

statute or reversible error stemming from any purported lack of notice.

       The Kretowiczes next contend they were entitled to a trial of facts that were at

issue in their causes of action, and that the trial court's judgment deprived them of the

right to present and admit evidence and the right to examine and cross-examine

witnesses. They maintain they were entitled to a civil trial to prove with sworn testimony

that Commission was subject to estoppel, waiver and laches, and the court had no

authority to enter judgment against them without such a trial. As Commission correctly

points out, however, declaratory relief is not appropriate to review an administrative

decision. (State of California v. Superior Court (1974) 12 Cal.3d 237, 249 ["It is settled

that an action for declaratory relief is not appropriate to review an administrative

decision"]; see also City of Pasadena v. Cohen (2014) 228 Cal.App.4th 1461, 1466-1467;

San Mateo County Coastal Landowners' Assn. v. County of San Mateo (1995) 38

Cal.App.4th 523, 558; Walter H. Leimert Co. v. California Coastal Com. (1983) 149

Cal.App.3d 222, 230-231; compare Pacific Legal Foundation v. California Coastal Com.

                                             13
(1982) 33 Cal.3d 158, 168-169 [quasi-legislative actions of administrative agencies, such

as Commission's adoption of guidelines in interpreting the Coastal Act's access policies,

are reviewable by declaratory relief or traditional mandamus].)

       Finally, the Kretowiczes contend that because the 1979 easement requirements are

a claim or "cloud" on their title, they were entitled to a trial on their claim for quiet title.

Concededly, a claim for purposes of an action for quiet title is "intended in its broadest

possible sense" and includes a cloud upon title. (Cal. Law Revision Com. com., 17A

West's Ann. Code Civ. Proc. (2015 supp.) foll. § 760.010, p. 84.) "[A] quiet title action

requires 'antagonistic property interest[s].' [Citation.] In other words, a plaintiff cannot

obtain a quiet title judgment unless someone claims a conflicting interest in the same

property as the plaintiff." (Harbour Vista, LLC v. HSBC Mortg. Services Inc. (2011) 201

Cal.App.4th 1496, 1511.) This requires that the plaintiff prove a title in himself superior

to that of the defendant. (Harbour Vista, LLC, at p. 1511.)

       In their cause of action for quiet title, the Kretowiczes alleged Commission

claimed an "interest adverse to [them] in the Property in that the Commission claims that

there is an obligation to record an offer of dedication for public access that runs with the

Property and that [they] took its interest in the Property subject to said obligation."

(Some capitalization omitted.) The Kretowiczes alleged its interest was not subject to the

condition or to "Unissued Permit A-133-79," and sought as of August 5, 2005, to "quiet

title against any claim of the Commission as set forth above." (Some capitalization

omitted.) The Kretowiczes' quiet title cause of action sought to litigate not a title issue,



                                               14
but Commission's imposition of the 1979 public access condition on their sought-after

development permit, and thus was in substance and effect a challenge to Commission's

decision, which, as stated, must be tested via a writ of mandate. Upon determining the

Kretowiczes had no viable challenge via mandate to Commission's decision, a decision

we uphold, the trial court did not err in dismissing their quiet title cause of action.

                         II. Denial of Petition for Writ of Mandate

A. Appellate Standard of Review

       Section 1094.5 of the Code of Civil Procedure sets out the procedure for judicial

review of final administrative determinations by petitions for writ of mandate. (Fukuda

v. City of Angels (1999) 20 Cal.4th 805, 810.) We review Commission's decision for an

abuse of discretion. (Code Civ. Proc., § 1094.5, subd. (b).) An abuse of discretion is

established if Commission has not proceeded in a manner required by law, the order or

decision is not supported by the findings, or the findings are not supported by the

evidence. (Ibid.) Code of Civil Procedure section 1094.5, subdivision (c) provides:

"Where it is claimed that the findings [of an administrative body] are not supported by

the evidence, in cases in which the court is authorized by law to exercise its independent

judgment on the evidence, abuse of discretion is established if the court determines that

the findings are not supported by the weight of the evidence. In all other cases, abuse of

discretion is established if the court determines that the findings are not supported by

substantial evidence in the light of the whole record." Under this subdivision "[t]here are

two tests for judicial review of the evidentiary basis for the agency's decision. The



                                              15
'independent judgment' rule applies when the decision of an administrative agency will

substantially affect a fundamental vested right. The trial court must not only examine the

administrative record for errors of law, but must also exercise its independent judgment

upon the evidence disclosed in a limited trial de novo. [Citation.] The 'substantial

evidence' rule applies when the administrative decision neither involves nor substantially

affects a vested right. The trial court must then review the entire administrative record to

determine whether the findings are supported by substantial evidence and whether the

agency committed any errors of law, but need not look beyond the record of the

administrative proceedings." (Mann v. Department of Motor Vehicles (1999) 76

Cal.App.4th 312, 320, citing Bixby v. Pierno (1971) 4 Cal.3d 130, 143, 144.) " 'In

reviewing the agency's decision, the trial court examines the whole record and considers

all relevant evidence, including evidence that detracts from the decision.' [Citation.]

Substantial evidence means evidence 'of ponderable legal significance.' [Citation.] The

evidence ' " ' "must be reasonable in nature, credible, and of solid value . . . ." ' " ' "

(Schafer v. City of Los Angeles (2015) 237 Cal.App.4th 1250, 1260.)

       The trial court reviews questions of law differently: it " 'exercises independent

judgment on pure questions of law, including the interpretation of . . . judicial

precedent.' " (Schafer v. City of Los Angeles, supra, 237 Cal.App.4th at p. 1261, quoting

McAllister v. California Coastal Com. (2008) 169 Cal.App.4th 912, 921-922.)

       An appellate court's review of the administrative record for legal error and

substantial evidence in a mandamus case is the same as the trial court's: this court reviews



                                                16
the agency's action, not the trial court's decision. (Vineyard Area Citizens for

Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427; Ross v.

California Coastal Com. (2011) 199 Cal.App.4th 900, 922.) We examine all relevant

materials in the entire administrative record to determine whether the agency's decision is

supported by substantial evidence. (Ross, at p. 922; McAllister v. California Coastal

Com., supra, 169 Cal.App.4th at p. 921.) " 'Although this task involves some weighing

to fairly estimate the worth of the evidence, that limited weighing does not constitute

independent review where the court substitutes its own findings and inferences for that of

the Commission. Rather, it is for the [agency] 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.' " (McAllister, at

p. 921, quoting Kirkorwoicz v. California Coastal Com. (2000) 83 Cal.App.4th 980,

986.)

        This court presumes Commission's findings and actions are supported by

substantial evidence; it is the Kretowiczes' burden to demonstrate to the contrary. (Ross

v. California Coastal Com., supra, 199 Cal.App.4th at p. 921; McAllister v. California

Coastal Com., supra, 169 Cal.App.4th at p. 921.)

B. The Trial Court Did Not Err by Reviewing Commission's Decision for Substantial

Evidence

        As a threshold argument, the Kretowiczes contend the trial court erred by not

applying its independent judgment on Commission's decision; they suggest Commission's



                                             17
action amounts to a "confiscation" and they have a fundamental right to be free from a

physical taking of their private property. We conclude these arguments are misplaced,

and the trial court applied the correct review standard for Commission's decision.

       This court has explained that "[a] fundamental vested right has been termed a right

'already possessed' [citation] or 'legitimately acquired' [citation]. ' "[A] vested right for

review purposes means a preexisting right while a vested right for construction means a

right the government is estopped to deny." ' " (Barrie v. California Coastal Com. (1987)

196 Cal.App.3d 8, 14-15.) The same test determines whether a right is vested or

fundamental. (Id. at p. 15.) "The term 'vested' in the sense of 'fundamental vested rights'

in an administrative mandate proceeding is not synonymous with the 'vested rights'

doctrine relating to land use development. [Citation.] Courts rarely uphold the

application of the independent judgment test to land use decisions. [Citation.] Cases

upholding such application typically involve 'classic vested rights'—i.e., a vested right to

develop property in a particular way." (Amerco Real Estate Company v. City of West

Sacramento (2014) 224 Cal.App.4th 778, 783, citing Goat Hill Tavern v. City of Costa

Mesa (1992) 6 Cal.App.4th 1519, 1527.)

       In circumstances involving development permits, "an owner of property acquires a

vested right to construct a building where the conduct of the government amounts to a

representation that such construction is fully approved and legal, and in reliance on such

representation the owner materially changes position." (Stanson v. San Diego Coast

Regional Com. (1980) 101 Cal.App.3d 38, 49.) Thus, in Stanson, an agent of the regional



                                              18
commission told the plaintiff he did not need a coastal development permit to remodel his

restaurant, and he obtained building permits and expended substantial amounts of money

remodeling. (Stanson, at p. 42.) The regional commission thereafter advised him he in

fact required a permit, and denied his permit request, which the state Commission

affirmed. (Id. at p. 43.) This court concluded under these circumstances that his asserted

right was vested and fundamental, and that the trial court should have reviewed the

Commission's decision under the independent judgment review standard. (Id. at pp. 49-

50.)

       In Barrie v. California Coastal Com., supra, 196 Cal.App.3d 8, this court rejected

homeowners' claim they possessed a fundamental vested right for purposes of trial court

review where Commission had issued them a temporary permit to build a protective

seawall, but later required them to remove and relocate the seawall. (Id. at pp. 12-15.)

The homeowners could not establish a vested right to continue the seawall as a matter of

law, in part because their claim did not rest on an affirmative misrepresentation by

Commission that approval would be perfunctory, and strong public policy militated

against granting individuals vested rights to permanent structures based on temporary

permits. (Id. at p. 16-17.)

       The Kretowiczes assert that our decision in Barrie is incorrect in that it did not

"critically examine[]" which test applied to a Commission decision involving a seawall's

placement. We read the case differently, and observe it thoroughly and correctly

examined the rights and issues at hand. The inquiry here is whether the Kretowiczes



                                             19
have a vested or fundamental right to an unconditional coastal development permit for

their desired improvements by reason of Commission's representation that such

construction was approved and legal. (See Stanson v. San Diego Coast Regional Com.,

supra, 101 Cal.App.3d at p. 49.) They have not established any such representation by

Commission concerning their proposed development, and thus we conclude they did not

have a right to a permit that was either already possessed or legitimately acquired so as to

require the trial court to exercise its independent judgment on Commission's decision.

C. Commission's Finding that Baker Accepted the Public Access Conditions in Permit

No. F6760 is Supported by Substantial Evidence, and the Conditions are Enforceable

Against the Kretowiczes as a Matter of Law

       The Kretowiczes advance several challenges to the trial court's decision denying

their petition for a writ of mandate. They contend the court erred by denying their

petition because Commission failed to make findings that their proposed property

improvements had a nexus or rough proportionality to the public access conditions under

Nollan v. California Coastal Com. (1987) 483 U.S. 825 or Dolan v. City of Tigard (1991)

512 U.S. 374 (Nollan/Dolan). They contend Commission's finding of an implied

dedication, and the trial court's finding that the 1979 easement requirements had priority




                                            20
over their title, lack substantial evidence in the record.6 They maintain the court erred by

applying what they term "collateral estoppel" to the 1979 public access conditions

because (a) application of such a doctrine does not comport with fairness or sound public

policy; (b) Commission's right to assert the doctrine was waived, estopped, and barred by

laches or the statute of limitations; and (c) Commission acted beyond its subject matter

jurisdiction in finding the existence of an implied dedication.

       As we explain, the Kretowiczes are precluded from raising their Nollan/Dolan

challenge, or their challenge to Commission's finding of historic public use supporting an

implied dedication,7 because their predecessor in title, Baker, elected not to appeal

Commission's September 20, 1979 findings and decision to impose the public access

conditions on permit No. F6760 and any such claims are barred by the 60-day statute of



6      We reject outright as without pertinent authority the Kretowiczes' arguments
concerning the trial court's supposed finding of priority of title, and their obligation to go
to Commission's San Diego office to ask about their property. Their arguments are that
the finding "was no more than self-serving speculation by the [Commission]"; that
Commission "has no authority to judge priorities of instruments under the Civil Code,"
and Commission "was judging the priority of its own claim." The sole authority relied
upon by the Kretowiczes (El-Attar v. Hollywood Presbyterian Med. Ctr. (2013) 56
Cal.4th 976, 995), however, involves a hospital peer review proceeding and is cited for
the collateral proposition that "[a] fair hearing requires an impartial adjudicator." The
Kretowiczes do not articulate any argument under a separate heading that Commission
denied them a fair hearing. (Cal. Rules of Court, rule 8.204(a)(1)(B).)

7      The Kretowiczes' cited authority, LT-WR, L.L.C. v. California Coastal Com.
(2007) 152 Cal.App.4th 770, does not in any event support its challenge to Commission's
fundamental subject matter jurisdiction, which was not implicated by its findings or
imposition of the permit conditions. (California Coastal Com. v. Superior Court (1989)
210 Cal.App.3d 1488, 1501; see Mt. Holyoke Homes, LP v. California Coastal Com.
(2008) 167 Cal.App.4th 830, 841 [Commission had subject matter jurisdiction as long as
the appeal to it presented a substantial issue].)
                                              21
limitations for such a challenge. Because Baker proceeded with her proposed

construction under permit No. F6760 during the appeals to the regional Commission and

then the state Commission, after which Commission imposed the public access conditions

on permit No. F6760, she assumed the benefits of that permit as well as the risk that

Commission might add the challenged dedication conditions. Given Baker's failure to

challenge Commission's decision to impose the conditions, we uphold Commission's

finding that they are valid and the Kretowiczes are bound by them.

       Section 30801 declares that "[a]ny aggrieved person shall have a right to judicial

review of any decision or action of the commission by filing a petition for a writ of

mandate in accordance with Section 1094.5 of the Code of Civil Procedure within 60

days after the decision or action has become final." (Italics added.) "[S]ection 30801's

60-day period constitutes a statute of limitations and generally bars untimely efforts to

challenge coastal commission rulings." (Strother v. California Coastal Com. (2009) 173

Cal.App.4th 873, 878; see Ojavan Investors, Inc. v. California Coastal Com. (1994) 26

Cal.App.4th 516, 525 ["the time to challenge coastal development permits . . . is within

the statutory 60–day period after issuance of the permits . . . , not when a party or a

successor in interest elects to violate declarations of restrictions imposed pursuant to the

permits, and a cease and desist order ensues"].) Commission's September 20, 1979 vote

to impose the public access conditions on the improvements for which Baker sought

permit No. F6760 was a "decision or action" falling within this category.




                                             22
       The law in California is settled that "[a] landowner cannot challenge a condition

imposed upon the granting of a permit after acquiescence in the condition by either

specifically agreeing to the condition or failing to challenge its validity, and accepting the

benefits afforded by the permit." (Rossco Holdings Inc. v. State of California (1989) 212

Cal.App.3d 642, 654, citing County of Imperial v. McDougal (1977) 19 Cal.3d 505, 510-

511 ["A number of cases have held that a landowner or his successor in title is barred

from challenging a condition imposed upon the granting of a special permit if he has

acquiesced therein by either specifically agreeing to the condition or failing to challenge

its validity, and accepted the benefits afforded by the permit"]; see also Bowman v.

California Coastal Com. (2014) 230 Cal.App.4th 1146, 1152; Salton Bay Marina, Inc. v.

Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 941.) If conditions imposed in a

permit are invalid, Code of Civil Procedure section 1094.5 provides a landowner the right

and procedures to eliminate them, and if the landowner declines to avail himself of those

procedures, he cannot convert that right into a cause of action in inverse condemnation.

(Hensler v. City of Glendale (1994) 8 Cal.4th 1, 19; Rossco, at pp. 654-655; see also

Serra Canyon Co., Ltd. v. California Coastal Com. (2004) 120 Cal.App.4th 663; Pfeiffer

v. City of La Mesa (1977) 69 Cal.App.3d 74, 78, modified by statute as stated in Sterling

Park, L.P. v. City of Palo Alto (2013) 57 Cal.4th 1193, 1200 and Hensler, at p. 19, fn. 9.)

       These principles are reflected in several cases, some of which the Kretowiczes

seek to distinguish as involving recorded instruments or conditions. In California

Coastal Com. v. Superior Court (Ham) (1989) 210 Cal.App.3d 1488, Commission in



                                             23
1985 approved a coastal development permit on condition the property owner record an

offer to dedicate an easement for public access across the strip of beach in front of his

home. (Id. at p. 1492.) The landowner recorded the offer to dedicate, Commission

issued the permit, and the landowner completed the project. (Ibid.) Three years later,

following the decision in Nollan, supra, 483 U.S. 825, the landowner sued Commission

for inverse condemnation, alleging the permit condition requiring dedication of a public

beach access easement amounted to an unconstitutional taking of private property

without compensation. (Id. at pp. 1492, 1495.) This court issued a writ directing the trial

court to sustain Commission's demurrer to the complaint, concluding that the landowner's

failure to challenge the permit condition in an administrative mandamus action barred his

action for damages. We agreed with the State's position (id. at p. 1495) that Ham's

challenge was barred by his failure to file a writ petition within the 60-day limitations

period from Commission's decision: "Quite clearly, a property owner seeking to recover

on an inverse condemnation claim against the Commission in a case such as this must

first establish the invalidity of the condition the Commission sought to impose. An

administrative mandate proceeding provides the proper vehicle for such a challenge.

Even in the post-First Lutheran world [First English Evangelical Lutheran Church v.

County of Los Angeles (1987) 482 U.S. 304], requiring that an inverse condemnation

claim be joined with an administrative mandate action filed within 60 days after the

Commission decision becomes final serves the salutary purpose of promptly alerting the

Commission that its decision is being questioned and that the State may be liable for



                                             24
inverse condemnation damages. We are aware of nothing which would prohibit the

Commission, knowing of such a challenge, from temporarily staying enforcement of a

challenged condition in order to mitigate the potential damages. Were the rule as Ham

proposes, a property owner could delay nearly five years until the statute of limitations

for an inverse condemnation action had almost expired, simply allowing his damages to

accrue in the interim. In given cases and certainly in the aggregate, the financial burden

on the state could be overwhelming." (Id. at p. 1496.)

       This court further held that as long as an agency has subject matter jurisdiction

over the issue before it, its decisions are subject to res judicata even if they turn out to be

incorrect. " 'It is an established rule that where a tribunal has jurisdiction of the parties

and of the subject-matter it necessarily has the authority and discretion to decide the

questions submitted to it even though its determination is erroneous. . . . This rule

applies to quasi-judicial tribunals as well as to courts.' [Citations.] Here, the commission

quite clearly had subject matter jurisdiction and the authority to impose permit conditions

reasonably related to any burdens on the public beach created by the construction of

Ham's residence. [Citation.] The fact that it incorrectly analyzed the relationship

between the burdens and the condition it sought to impose—or perhaps more accurately,

incorrectly anticipated the action of the United States Supreme Court—does not mean it

acted in excess of its jurisdiction in the fundamental sense. If he believed the

Commission was wrong, Ham had a remedy by way of judicial review. Having failed to

avail himself of that recourse, he now has no basis for complaint." (California Coastal

Com. v. Superior Court, supra, 210 Cal.App.3d at p. 1501, fn. omitted.)

                                              25
       In Serra Canyon Co., Ltd. v. California Coastal Com., supra, 120 Cal.App.4th

663, Commission granted plaintiff's predecessor a permit on condition he record an

irrevocable offer of dedication of property for public recreational use. (Id. at p. 666.)

That condition became final in 1981. (Id. at p. 669.) The predecessor did not challenge

the condition, but in 1983 executed and recorded it, giving the state fee title to the

property. (Ibid.) Commission transferred its rights to the dedication to the coastal

conservancy, which in 2002 adopted a resolution to accept it and planned to record it.

(Id. at p. 666.) Before the conservancy did so, the plaintiff, who had purchased the

property more than a decade after its predecessor applied for the permit, challenged the

offer to dedicate on grounds it was void and an unconstitutional taking. (Id. at p. 667.)

       Relying on its prior decision in Ojavan Investors, Inc. v. California Coastal Com.,

supra, 26 Cal.App.4th 516, Serra Canyon held that by agreeing to the condition, the

predecessor accepted the benefit of the permit, and because he did not seek judicial

intervention to avoid the condition, the plaintiff was bound by the predecessor's waiver of

its right to seek timely writ review. (Serra Canyon Co., Ltd. v. California Coastal Com.,

supra, 120 Cal.App.4th at p. 668.) This was the case even where the plaintiff argued

Commission was carrying out an unconstitutional taking of its property: "Compliance

with procedural writ requirements 'remains a necessary predicate to institution of inverse

condemnation proceedings' [Citation.] 'Regardless of whether [the plaintiff] pleads its

cause of action as one for inverse condemnation or as a denial of due process, the

essential underpinning of its recovery is the invalidity of the administrative action. That



                                              26
action must be reviewed by petition for writ of administrative mandate.' " (Id. at p. 669.)

And the Serra Canyon court made clear the rule applied even when the aggrieved

individuals asserting inverse condemnation were successors in interest to prior owners

who accepted the burdens and benefits of the Commission's conditional permits. (Ibid.,

citing Ojavan, at pp. 524-535.)

       Here, there is no dispute that on September 20, 1979, following the appeals of

permit No. F6760's approval, Commission granted Baker's permit on the condition that

she record an irrevocable offer of dedication for public access. The Kretowiczes concede

that during the appeals, Baker had completed her construction under permit No. F6760,

as Commission so found in 2005 and 2011. Baker signed, recorded, and accepted the

benefits of permit No. F6760 by constructing the authorized improvements. Though

issued, that permit did not become final until the conclusion of the legal challenges,

which resulted in Commission's imposition of the public access condition. (§ 30623 ["If

an appeal of any action on any development by any local government or port governing

body is filed with the commission, the operation and effect of that action shall be stayed

pending a decision on appeal"]; see Russian Hill Improv. Asso. v. Board of Permit

Appeals (1967) 66 Cal.2d 34, 39, fn. 11 [a permit achieves finality only when the right to

invoke the discretionary reviewing authority has been exhausted]; Gabric v. City of

Rancho Palos Verdes (1977) 73 Cal.App.3d 183, 203 ["A permit is deemed final when

the administrative appeal has been finally decided or the time for appeal of the grant or




                                             27
denial has expired"].) Baker participated in the appeals, involving a claim that the permit

approval was absent required findings concerning public access,8 and she assumed the

risk that Commission might thereafter decide to impose new conditions to the permit

under which she completed her construction. Commission in fact made this decision,

which Baker did not challenge. These circumstances support Commission's finding that

Baker accepted the permit's benefits, and the law compels our conclusion that after the

permit became final, the Kretowiczes cannot now assert their constitutional and other

challenges to Commission's actions, notwithstanding the passage of time.

       Under the circumstances, we reject the Kretowiczes' arguments concerning

collateral estoppel. That doctrine was not invoked by the trial court, and to the extent

courts have dealt with it in this context (see Bowman v. California Coastal Com., supra,

230 Cal.App.4th 1151-1152) the matter involved an entity in privity with a prior owner.

(Id. at p. 1149 [family trust succeeded to owner who had applied for a coastal

development permit]; see Gikas v. Zolin (1993) 6 Cal.4th 841, 849 [elements of collateral

estoppel].) No such circumstances are presented here.




8      Also, title 14 of the California Code of Regulations, section 13320, provides in
part: "Upon receipt in the commission office of a timely valid appeal by a qualified
appellant the executive director of the commission shall notify the permit applicant and
the affected local government that the operation and effect of the coastal development
permit has been stayed pending final action on the appeal by the commission as required
by Section 30623 of the Public Resources Code." (See also Mt. Holyoke Homes, LP v.
California Coastal Com., supra, 167 Cal.App.4th at p. 834.)
                                             28
       We further reject the Kretowiczes' assertion that there is no evidentiary support, or

any Commission finding, for the proposition that Baker became bound to the 1979 public

access conditions by proceeding with construction under permit No. F6760. They argue

the evidence does not support a finding that Baker accepted the 1979 conditions in

reliance on that permit, "which had no access easement." They suggest Baker could not

be bound by conditions unknown to her until after her construction was completed. The

Kretowiczes also point to the trial court's statement of decision finding that "Baker

eventually acknowledged the Commission's determination regarding the public

easement," and assert Commission never made any such finding. According to the

Kretowiczes, the trial court "could not supply a finding not made by looking at evidence

in the record."

       These arguments are predicated on the incorrect notion that Commission's decision

on the appeal of permit No. F6760 somehow constituted a new permit decision or was

entirely unrelated to permit No. F6760. These arguments also ignore record evidence

that Baker was fully aware of, and participated in, the appeal proceedings on permit No.

F6760, which put at issue the prospect of public access findings and Commission action

to preserve such access. As stated, permit No. F6760 was not final pending the appeals,

and did not become so until its conditions were fulfilled. It was not necessary that Baker

expressly accept the permit condition. Her construction under that permit, and ensuing

failure to challenge the Commission's decision to impose the public access conditions, is

enough to support denial of the Kretowiczes' petition, regardless of the trial court's



                                             29
reasoning. (Scott v. City of Del Mar (1997) 58 Cal.App.4th 1296, 1305 [we review the

trial court's order, not its reasoning, and affirm if it is correct on any theory apparent from

the record]; LT-WR, L.L.C. v. California Coastal Com., supra, 152 Cal.App.4th at p. 806,

fn. 7.)

D. Estoppel and Other Equitable Defenses Do Not Apply

          The Kretowiczes contend the trial court erred by rejecting their claims that

Commission should be estopped from enforcing the public access conditions imposed in

1979, or is subject to waiver and laches. They point out Commission sought to enforce

the conditions for the first time in 2001, after having been notified that Baker would not

comply with the 1979 requirements. According to the Kretowiczes, Commission's 22-

year "silence" was not explained, and any public interest involved in obtaining access to

the shoreline cannot outweigh the potential injustice to them, which assertedly is an

unconstitutional physical invasion of their property. We conclude no exceptional

circumstances justify a finding of estoppel here.

          "It is well established that 'an estoppel will not be applied against the government

if to do so would effectively nullify "a strong rule of policy, adopted for the benefit of the

public . . . ." ' [Citations.] ' "The courts of this state have been careful to apply the rules

of estoppel against a public agency only in those special cases where the interests of

justice clearly require it." ' [Citation.] The ' "facts upon which such an estoppel must rest

go beyond the ordinary principles of estoppel and each case must be examined carefully

and rigidly to be sure that a precedent is not established through which, by favoritism or



                                               30
otherwise, the public interest may be mulcted or public policy defeated." ' " (Poway

Royal Mobilehome Owners Assn. v. City of Poway (2007) 149 Cal.App.4th 1460, 1471,

quoting City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 493 (Mansell); see also

County of Los Angeles v. Berk (1980) 26 Cal.3d 201, 222; City of South San Francisco v.

Cypress Lawn Cemetery Assn. (1992) 11 Cal.App.4th 916, 923.) Thus, "[e]ven if the

four elements of equitable estoppel are satisfied, the doctrine is inapplicable if the court

determines that the avoidance of injustice in the particular case does not justify the

adverse impact on public policy or the public interest." (Schafer v. City of Los Angeles,

supra, 237 Cal.App.4th at p. 1261.) This inquiry is not solely a question of fact, but it is

in part a question of law that must be considered from the point of view of a court of

equity. (Lentz v. McMahon (1989) 49 Cal.3d 393, 403; Smith v. County of Santa Barbara

(1992) 7 Cal.App.4th 770, 776.)

       In land use cases in particular, courts "severely limit[] the application of estoppel

. . . ." (Schafer v. City of Los Angeles, supra, 237 Cal.App.4th at p. 1262; see also

Golden Gate Water Ski Club v. County of Contra Costa (2008) 165 Cal.App.4th 249, 259

["[a] party 'faces daunting odds in establishing estoppel against a government entity in a

land use case' "]; West Washington Properties, LLC v. Department of Transportation

(2012) 210 Cal.App.4th 1136, 1146 ["the weight of the authority indicates government

inaction rarely forms a proper basis to estop the government from enforcing a law

intended to benefit the public"].) The overriding concern " ' "is that public policy may be

adversely affected by the creation of precedent where estoppel can too easily replace the



                                             31
legally established substantive and procedural requirements for obtaining permits."

[Citation.] Accordingly, estoppel can be invoked in the land use context in only "the

most extraordinary case where the injustice is great and the precedent set by the estoppel

is narrow." ' " (Schafer, at p. 1263.)9

       In Mansell, extraordinary circumstances warranted an estoppel when the

government had encouraged private development of tidelands that it had dredged, filled

and thus operated to reclaim since the turn of the century, resulting in the benefit to

thousands of residents of a significant array of public facilities for navigation and

recreation. (Mansell, supra, 3 Cal.3d at pp. 470-471, 486, 500.) The California

Constitution forbade the transfer of certain public tidelands to private persons (id. at p.

478), and so the court was presented with whether, in the face of such public policy

reflected in the constitutional provision, it could apply an estoppel effectively quieting

title in public lands in private persons. There, the court held the "the rare combination of

government conduct and extensive reliance here involved will create an extremely




9       In such context, the elements of estoppel are that (1) " 'the party making the
admission by his declarations or conduct, was apprised of the true state of his own title' ";
(2) the party " 'made the admission with the express intention to deceive, or with such
careless and culpable negligence as to amount to constructive fraud' "; (3) " 'the other
party was not only destitute of all knowledge of the true state of the title, but of the means
of acquiring such knowledge' "; and (4) the other party " 'relied directly upon such
admission, and will be injured by allowing its truth to be disproved.' " (Mansell, supra, 3
Cal.3d at p. 490.) The court made clear that the third requirement was "interpreted to
mean that a person seeking to raise an estoppel . . . be destitute not ' "of all possible
means of acquiring knowledge of the true state of the title, but rather of all convenient or
ready means to that end." ' " (County of Los Angeles v. Berk, supra, 26 Cal.3d at p. 222,
fn. 13; quoting Mansell, at pp. 490-491.)
                                             32
narrow precedent for application in future cases. . . . We are here concerned with

thousands of homeowners who, through the long continuing conduct of the government

entities involved, have been led to believe and have acted upon the belief that the lands

upon which they reside are their own private properties. Because similarly compelling

circumstances will not often recur, the public policy [at issue] will not suffer substantial

erosion as a result of the decision we reach today." (Ibid.)

       To the contrary is Feduniak v. California Coastal Com. (2007) 148 Cal.App.4th

1346 (Feduniak), in which the court declined to estop Commission from enforcing cease

and desist and restoration orders relating to an open space easement in the face of its

regulatory inaction. There, the plaintiffs had purchased property that had been

landscaped to include a three-hole golf course in violation of a 1983 permit restricting

development of the property under an open space easement. (Id. at pp. 1352-1354.)

When the plaintiffs purchased the property in 2000, the then owners did not disclose the

easement or permit restrictions (id. at p. 1355), and plaintiffs obtained a preliminary title

report but neither it nor the final report disclosed the easement restrictions. (Ibid.)

Plaintiffs did not consult with Commission, check its files or otherwise rely on any

representations or information from Commission in purchasing the property. (Id. at p.

1355.) Commission thereafter issued orders requiring plaintiffs to comply with the

easement by removing the course and restoring the land to its natural state. (Ibid.)

       The trial court found the plaintiffs had no actual knowledge of the recorded

easement or permit restrictions, that Commission's acquiescence had contributed to their



                                              33
lack of knowledge, and plaintiffs had relied on Commission's inaction. (Feduniak, supra,

148 Cal.App.4th at p. 1358.) The appellate court reversed. (Id. at p. 1351.) It refused to

apply the doctrine of equitable estoppel notwithstanding plaintiffs' lack of knowledge of

the easement and permit restrictions, Commission's failure to act, and the substantial

expense to the landowners of restoring the land to its natural state. It held: "[E]stopping

the Commission because of its prior regulatory inaction would nullify otherwise valid

restrictions adopted for the public benefit . . . . Estopping the Commission does not

punish the Commission. It would, however, injure the public, which has a strong interest

in a scenic natural coastline with native vegetation, because it would indefinitely

postpone the restoration of the site to that state, a restoration that has already been

delayed for over 20 years. . . . [T]he people of the state, acting through the Legislature,

have unequivocally voiced a strong preference for the natural state of the coast and

deemed it to be a valuable asset that must be protected, preserved, restored, and

maintained, especially in [environmentally sensitive habitat areas] and areas adjacent to

them." (Id. at p. 1377.) "Moreover, applying estoppel because of regulatory inaction

could undermine the Commission's ability to enforce existing and future permit

restrictions on property along the entire coast that the Commission has not been able to

monitor for compliance." (Id. at pp. 1377-1378.)

       The Court of Appeal observed that the trial court had been persuaded by plaintiffs'

argument that their property was not in or near an environmentally sensitive habitat.

(Feduniak, supra, 148 Cal.App.4th at p. 1378.) However, Commission's designation of



                                              34
the property as such was not subject to litigation or dispute, as the 60-day period to

challenge the restriction had long expired before the plaintiffs purchased the property.

(Ibid.) And the court rejected the plaintiffs' claim they were "innocent purchasers"

because "once the period to challenge the restrictions had expired and they were

recorded, they became immune from collateral attack by the original property owner and

successor owners." (Id. at p. 1379.) On this same basis, the court rejected amicus

arguments that the easement and permit conditions would be constitutionally suspect if

they were presently imposed on the project because they did not meet the Nollan/Dolan

standards. (Id. at p. 1379, fn. 11.10) The Court of Appeal acknowledged the costs to the

plaintiffs of removing the golf course and losing its future enjoyment, but it held that

individual loss of enjoyment did not outweigh the public's strong interest in eliminating

on ongoing unpermitted development, finally restoring the area to its natural state, and

protecting Commission's ability to protect existing and future easement and permit

conditions. (Id. at p. 1380.) Accordingly, the matter was not an extraordinary case in

which justice demanded the government be estopped. (Ibid.)

       The Kretowiczes make much of the fact that in most of the cases binding a

successor to a predecessor's agreed-upon permit conditions, including Feduniak, the


10     We likewise reject amicus Pacific Legal Foundation's arguments raising the
Nollan/Dolan requirements on grounds Baker, and in turn the Kretowiczes, are barred
from challenging Commission's September 20, 1979 decision to impose the public access
conditions. Pacific Legal Foundation argues that it does not concede, as it did in
Feduniak, supra, 148 Cal.App.4th 1346, that it was too late to collaterally attack the
permit conditions. Whether it concedes the point is irrelevant. We have already held that
Baker's failure to challenge Commission's decision bars her from any attack on
constitutional takings grounds, and that holding disposes of amicus's contention.
                                             35
permit conditions or dedication were recorded. But those cases do not turn on the fact

that public easement requirements were recorded, and indeed in Feduniak, the purchasers

lacked any notice of the conditions, which were not reflected in the title report. The

Feduniak plaintiffs' lack of notice and their "innocent purchaser" arguments did not

persuade the appellate court, which decided the matter based on the prior owner's failure

to challenge the condition. The Kretowiczes also seek to distinguish Feduniak on

grounds this case presents Commission's failure to enforce a known violation. The

record demonstrates Commission found Baker in violation and referred the matter to the

attorney general for enforcement. However, Commission's knowledge of the violation

does not by itself compel application of an estoppel against against it where the public

interests at stake outweigh the Kretowiczes' private interests.

       In view of the authorities discussed above, we conclude this case does not come

close to the exceptional circumstances necessary to apply an estoppel against

Commission. Any injustice to the Kretowiczes in requiring them to dedicate the required

public access easements presents no ground to override the significant public interests at

stake. Relevant here, the Coastal Act reflects " ' "a strong rule of policy, adopted for the

benefit of the public" ' that implicate[s] matters of vital interest." (Feduniak, supra, 148

Cal.App.4th at pp. 1376-1377, quoting Mansell, 3 Cal.3d at p. 493.) The California

Supreme Court has acknowledged that this state has "a clearly enunciated public

policy . . . in favor of allowing public access to shoreline areas." (County of Los Angeles

v. Berk, supra, 26 Cal.3d at p. 222.) And this court has observed that a "core principle[]



                                             36
of the Coastal Act is to maximize public access to the coast, to the extent feasible." (City

of Dana Point v. California Coastal Com. (2013) 217 Cal.App.4th 170, 185.) One of the

basic goals for the coastal zone is to " ' "[m]aximize public access to and along the coast

and maximize public recreational opportunities in the coastal zone consistent with sound

resources conservation principles and constitutionally protected rights of private property

owners." ' " (Ibid., see § 30001.5, subd. (c).) To that end, the Coastal Act implements its

public access goals via section 30210, which states in part: "In carrying out the

requirement of Section 4 of Article X of the California Constitution, maximum access,

which shall be conspicuously posted, and recreational opportunities 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." Section

30212 provides that subject to certain exceptions, "Public access from the nearest public

roadway to the shoreline and along the coast shall be provided in new development

projects." (§ 30212, subd. (a); see also City of Dana Point, at p. 185.)

       Thus, "[t]o allow the raising of an estoppel to defeat the claim of public right here

involved would be manifestly contrary to this policy." (County of Los Angeles v. Berk,

supra, 26 Cal.3d at p. 222.) These principles likewise compel us to reject the

Kretowiczes' laches claim, as well as its claim that Commission waived its right to

enforce the 1979 dedication requirement as against later purchasers. (Ibid.; West

Washington Properties, LLC v. Department of Transportation, supra, 210 Cal.App.4th at

p. 1150; City of Santa Cruz v. Pac. Gas & Elec. Co. (2000) 82 Cal.App.4th 1167, 1179.)



                                             37
Commission sought to enforce Baker's violation, but the attorney general did not pursue

the matter. We do not perceive Commission's ensuing inaction as knowingly assenting to

the violation or indicating an actual intention to give up its rights. (E.g., Feduniak, supra,

148 Cal.App.4th at p. 1367 [declining to find Commission's inaction signaled regulatory

acceptance, stating it "could just as well reflect . . . bureaucratic, budgetary, or personnel

limitations on enforcement of easements and permit restrictions"].)

E. Code of Civil Procedure Section 315 Statute of Limitations

       Code of Civil Procedure section 315 provides that "[t]he people of this State will

not sue any person for or in respect to any real property, or the issues or profits thereof,

by reason of the right or title of the people to the same, unless: [¶] 1. Such right or title

shall have accrued within ten years before any action or other proceeding for the same is

commenced . . . ." " 'The words "right or title" in this passage are to be construed to

mean "cause of action." ' " (Marin Healthcare Dist. v. Sutter Health (2002) 103

Cal.App.4th 861, 874.) If an action brought by a state agency is deemed to seek the

recovery of real property "by reason of the right or title of the people to the same," it

would be subject to the 10-year limitations period specified in Code of Civil Procedure

section 315. (Ibid.)

       Pointing out that Commission is an administrative agency of the state, the

Kretowiczes argue that Commission is barred from enforcing the 1979 permit conditions

under the above limitations period since it did not act before September 20, 1989. In

making this argument, the Kretowiczes characterize Commission's position as claiming



                                              38
the public has a "perpetual right to receive an option" to acquire the property. As

Commission points out, however, it did not sue the Kretowiczes, it is defending its permit

decision in this mandate proceeding. Having found the 1979 public access conditions

accepted by Baker and valid as against the Kretowiczes, Commission is entitled to

enforce them notwithstanding the passage of time. (See Feduniak, supra, 148

Cal.App.4th 1346.)

F. Bona Fide Purchaser Arguments

       Amicus Pacific Legal Foundation contends that the Kretowiczes are bona fide

purchasers for value as they had no actual or constructive notice of the 1979 public

access conditions, and thus Commission cannot enforce the conditions against them.

They maintain it is undisputed that the Kretowiczes had a good-faith belief the property

was unencumbered, and that the record shows the Kretowiczes lacked actual or

constructive notice of the conditions. For the latter proposition, amicus cites to Ure

Kretowicz's own self-serving statement to Commission, and a letter from the

Kretowiczes' counsel. Relying on Feduniak, supra, 148 Cal.App.4th at page 1353, as

well as a magazine article, they argue public easements dedicated at Commission's behest

must be recorded, and that the strong public policies furthered by recording statutes

outweigh the public benefit from additional public beach access.

       Amicus's bona fide purchaser arguments are irrelevant in view of our conclusion

that the Kretowiczes are bound by the 1979 public access conditions due to Baker's




                                            39
failure to timely challenge Commission's decision to impose them. (Accord, Feduniak,

supra, 148 Cal.App.4th at pp. 1378-1379.)11




11      We observe in any event that Commission expressly found that Ure Kretowicz
would have learned of the permit requirements contained in Commission files on
reasonable inquiry, and this finding, which amounts to one of constructive notice, is
supported by the evidence. Civil Code section 19 provides: "Every person who has
actual notice of circumstances sufficient to put a prudent man upon inquiry as to a
particular fact, has constructive notice of the fact itself in all cases in which, by
prosecuting such inquiry, he might have learned such fact." The term "prudent" is
defined as "marked by wisdom or judiciousness"; "shrewd in the management of practical
affairs"; and "marked by circumspection." (Merriam-Webster's Collegiate Dict. (11th ed.
2006) p. 1002.) At the time the Kretowiczes purchased the property in 1994, the La Jolla
LCP discussed shoreline access at Princess Street and alluded to Commission's dedication
requirement at issue. Ure Kretowicz read the La Jolla LCP when he purchased the
property, and the information was sufficient to create a duty on Kretowicz, an
experienced and prudent developer purchasing the bluff-top coastal property on Princess
Street, to inquire with Commission about additional facts concerning that dedication. "If
the circumstances are such as to put a prudent person on inquiry, that is all that is
required." (Pellissier v. Title Guarantee, etc. Co. (1929) 208 Cal. 172, 184-185.)
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                                 DISPOSITION

     The judgment is affirmed.




                                               O'ROURKE, J.

WE CONCUR:


McCONNELL, P. J.


AARON, J.




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