Filed 3/18/14



                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              SECOND APPELLATE DISTRICT

                                        DIVISION SIX


SANDRA BOWMAN, as Cotrustee, etc.,                         2d Civil No. B243015
et al.,                                                 (Super. Ct. No. CV100611)
                                                         (San Luis Obispo County)
     Plaintiffs and Appellants,

v.

CALIFORNIA COASTAL COMMISSION,

     Defendant and Respondent.



                  The California Coastal Commission (Commission) grants a party a
development permit. After the time for appeal has passed, the party may not collaterally
attack the permit. A collateral attack is not a substitute for an appeal. (Pub. Resources
Code, § 30600.)
                  The County of San Luis Obispo (the County) issued a coastal development
permit on condition the landowner dedicate a lateral public access easement across the
oceanfront portion of the property. The landowner did not appeal the condition, but later,
after the permit became final, requested removal of the easement condition in a second
coastal development permit application to the County. The County allowed the condition
to be removed. Other parties appealed the removal of the condition to the Commission.
The Commission refused to remove the easement condition imposed in the first permit.
The landowner petitioned for a writ of administrative mandate. The trial court gave
judgment to the Commission. We affirm.
              Collateral estoppel bars the landowner from attacking in a second permit
application the validity of a condition that became final in the first permit application.
                                           FACTS
              Walton Emmick owned approximately 400 acres in San Luis Obispo
County. At the time he purchased the property, it contained a single family residence and
a barn. The residence was uninhabitable and the barn was in disrepair. The property
includes approximately one mile of shoreline along noncontiguous parcels. The parcels
are separated by a parcel owned by another property owner.
              In May 2002, Emmick applied to the County for a coastal development
permit (CDP) to rehabilitate the residence. The permit application included interior and
exterior improvements, installation of a new septic system, and a connection of an
existing water well to the house.
              While the CDP application was pending, in June 2002, Emmick applied to
the County for construction permits covering much of the same work as the CDP
application. The County issued the permits over the counter.
              Emmick began work on the residence pursuant to the construction permits.
A county inspector told Emmick he had to stop work until the County issued the CDP.
Emmick complied. The County did not issue a formal stop-work order.
              Emmick died in March 2003. SDS Family Trust (SDS) succeeded to the
property.1
              In March 2004, the County approved the CDP for which Emmick had
applied. The parties refer to it as "CDP-1." CDP-1 was conditioned upon SDS's offer to
dedicate a lateral easement for public access along the shorefront portion of the property.
The County's reason for the easement condition was that the residence had not been
occupied for several years and its occupation would increase the intensity of the
property's use.


              1
              Plaintiffs and appellants, Cotrustees Sandra Bowman, Denise McLaughlan
and Sharyn Schrick of the SDS Family Trust, are collectively referred to as SDS.

                                              2
              The notice of approval informed SDS that it had 14 days to appeal. SDS
did not appeal.
              Nine months later, in December 2004, SDS applied to the County for
another coastal development permit (CDP-2) This application was for the construction of
a 4,576 square-foot barn to replace the existing barn, which had collapsed. The
application included remodel of the existing residence, connection to an existing well and
installation of a new septic system, all of which had been approved under CDP-1.
Significantly, the application requested the removal of the condition requiring an offer to
dedicate a lateral coastal access easement imposed by CDP-1.
              The County approved the CDP-2 application, including the removal of the
coastal access condition. The County removed the condition in spite of finding that SDS
is "currently in violation" of the lateral easement condition because the remodeling of the
residence had begun but SDS has not recorded an offer to dedicate.
              The Sierra Club, the Surfrider Foundation and two coastal commissioners
appealed the County's approval of CDP-2 to the Commission. The parties appealing
were concerned that the County had eliminated a valid existing easement condition
imposed by CDP-1. The Commission accepted jurisdiction.
              After hearing, the Commission determined that the easement condition
contained in CDP-1 is permanent and binding on the landowner, and removal of the
easement condition would violate the policy favoring public access to coastal resources.
The Commission conditioned its permit on the implementation of the easement condition
contained in CDP-1.
                                      DISCUSSION
                                             I.
              In reviewing a judgment from a petition for writ of administrative mandate,
our function is the same as that of the trial court. (LT-WR, LLC v. Cal. Coastal Com.
(2007) 152 Cal.App.4th 770, 780.) We must determine whether the Commission's
decision is supported by substantial evidence. (Paoli v. Cal. Coastal Com. (1986) 178
Cal.App.3d 544, 551-553.)

                                             3
               In viewing the evidence, we look only to the evidence supporting the
prevailing party. (GHK Associates v. Mayer Group, Inc. (1990) 224 Cal.App.3d 856,
872.) We discard evidence unfavorable to the prevailing party as not having sufficient
verity to be accepted by the trier of fact. (Ibid.) Where the trial court or jury has
drawn reasonable inferences from the evidence, we have no power to draw different
inferences, even though different inferences may also be reasonable. (9 Witkin, Cal.
Procedure (5th ed. 2008) Appeal, § 376, p. 434.) The trier of fact is not required to
believe even uncontradicted testimony. (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d
1012, 1028.)
                                              II.
               SDS contends the access easement condition constitutes an unlawful
exaction of its property under Nollan v. California Coastal Commission (1987) 483 U.S.
825 and Dolan v. City of Tigard (1994) 512 U.S. 374, because the condition is not
roughly proportional to the burden the project places on the public interest. SDS also
contends the easement condition violates the local coastal plan.
               The Commission responds that it did not create the easement condition.
The condition was created by the County in approving CDP-1. SDS's failure to appeal
CDP-1 rendered the condition final and binding. The Commission argues it did nothing
more than refuse to remove a valid and binding condition.
               Where an administrative tribunal has rendered a quasi-judicial decision that
could be challenged by administrative mandamus pursuant to Code of Civil Procedure
section 1094.5, a party's failure to pursue that remedy will give rise to collateral estoppel.
(See Mola Development Corp. v. City of Seal Beach (1997) 57 Cal.App.4th 405, 410.)
The failure to pursue administrative mandamus will preclude the litigation of claims that
were actually litigated in a prior proceeding or that could have been litigated. (Patrick
Media Group, Inc. v. Cal. Coastal Com. (1992) 9 Cal.App.4th 592, 617.)
               Here when the County granted CDP-1 it made a quasi-judicial
determination that the lateral easement condition was valid for the proposed development
because development would lead to an increased use of the property. When SDS failed

                                              4
to appeal, that determination became final. SDS may not collaterally attack the
determination of validity.
              SDS argues, without citation to authority, that a permit applicant who is
dissatisfied with a permit condition may simply "walk away" from the permit and apply
for a new one. SDS may be able to walk away from the permit, but it cannot walk away
from collateral estoppel.
              Collateral estoppel does not depend on the permit. It applies even in cases
where no permit is involved. (See, e.g., Weil v. Barthel (1955) 45 Cal.2d 835, 839 [final
judgment barring equity of redemption not subject to collateral attack].) The purpose of
collateral estoppel is to protect the finality of judgments, or in this case, administrative
decisions. (See 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 334, p. 938.) A
party dissatisfied with an administrative decision must attack it directly on appeal, or the
issues decided therein will be deemed conclusively determined against the party. (See
Weil, supra, at p. 839.) It is the finality of that determination, not the permit, from which
the collateral estoppel arises.
              For the same reason, SDS's argument that CDP-1 has expired is unavailing.
Collateral estoppel does not depend on the permit.
              Here SDS is attempting to use its application for CDP-2 to collaterally
attack the easement condition imposed in CDP-1. The lateral access condition was based
on the projected increase in use generated by the development project. This condition
had been conclusively determined. SDS is precluded from attacking it in a collateral
proceeding. Whether the imposition of the access easement condition violates the
Nollan/Dolan test or the local coastal plan is beside the point. Even an erroneous
decision is as conclusive as a correct one. (Weil v. Barthel, supra, 45 Cal.2d at p. 839.)
              SDS points out that a permit condition can be modified. But SDS points to
nothing that would compel the Commission to modify the access easement condition, a
condition the validity of which is not subject to attack.
              SDS claims that the Commission expanded the width of the easement
beyond that required by CDP-1. But the Commission stated under "Special Conditions":

                                               5
"Compliance with CDP-1. PRIOR TO ISSUANCE OF THE COASTAL
DEVELOPMENT PERMIT, the Permittee shall submit to the Executive Director for
review and approval proof that the offer to dedicate (OTD) a lateral public access trail
easement along the shoreline portion of the property as required by CDP[-1] has been
recorded consistent with the terms and conditions verifying its recordation, and shall
include written evidence of review and approval by San Luis Obispo County." The
easement condition goes no further than requiring compliance with CDP-1. It does not
expand the requirement.
                                             III.
              SDS contends that it never accepted CDP-1.
              SDS cites no authority for the proposition that acceptance of the permit by
the applicant is necessary for collateral estoppel. Collateral estoppel is not based on a
party's acceptance of the result of a judicial or quasi-judicial determination. Instead, it is
based on the policy insulating final decisions from collateral attack. (See 7 Witkin,
supra, § 334 at pp. 938-939.) Thus, even if SDS did not accept CDP-1, it would be
precluded from collaterally attacking the easement condition.
              In any event, the Commission as the trier of fact could reasonably conclude
SDS accepted CDP-1 by implication.
              Here SDS completed the work on the house restoration that CDP-1
authorized. SDS did not appeal CDP-1. Instead, SDS accepted the benefit of the house
restoration and improvements, and that benefit continues to this day. A party who fails to
challenge the validity of a permit condition and accept its benefits has acquiesced in the
permit and is bound by the conditions. (County of Imperial v. McDougal (1977) 19
Cal.3d 505, 510, 511.)
              SDS argues that it is not enough to accept the benefit of a permit in order to
be bound; a party must also accept its burden. That one can accept the benefits of a
permit and avoid its burdens simply by ignoring or rejecting them is untenable. The
cases on which SDS relies, involve permit holders who accepted the benefits of the
permit, but also performed the permit conditions. (Citing County of Imperial v.

                                              6
McDougal, supra, 19 Cal.3d at p. 510; Ojavan Investors, Inc. v. Cal. Coastal Com.
(1994) 26 Cal.App.4th 516, 527; Rossco Holdings, Inc. v. State of California (1989) 212
Cal.App.3d 642, 646.) But in none of those cases do the courts consider any requirement
that a permit holder must accept the burdens of a permit in order to be found to have
accepted the permit. A case is not authority for matters not considered therein. (Contra
Costa Water Dist. v. Bar-C Properties (1992) 5 Cal.App.4th 652, 660.) Instead, the cases
all hold that a party is bound by the conditions of a permit when he fails to challenge the
permit and accepts its benefits. (County of Imperial, supra, at pp. 510-511; Ojavan
Investors, Inc., supra, at p. 527; Rossco Holdings, Inc., supra, at p. 654.)
              SDS argues that all the improvements were constructed under the County's
over-the-counter building permits. It points to evidence that all the improvements to the
house were completed over a year prior to the issuance of CDP-1, and that no
improvements have been constructed since.
              But because SDS's property is in the coastal zone, the County's building
permits alone are not sufficient. A CDP is also required. (Pub. Resources Code,
§ 30600, subd. (a).)
              SDS appears to argue that because Emmick completed the improvements
prior to the time CDP-1 was issued, it cannot be said that SDS has accepted the benefits
of CDP-1. But CDP-1 had the potential, at least, to retroactively make the illegally
constructed improvements legal. That alone is a benefit. SDS did not, after all, withdraw
its application for CDP-1 once the improvements were completed; nor has it removed the
illegally constructed improvements.
              Moreover, SDS's argument amounts to nothing more than that it has gained
an advantage by illegally constructing the improvements instead of waiting for CDP-1 to
be issued and complying with its conditions. A party who waits for the proper permit to
legally construct improvements may be said to have accepted the benefit of the permit.
But in SDS's view, a party who illegally constructs improvements prior to obtaining a
permit, may not be said to have accepted the benefit of the permit, and thus, may escape



                                              7
its burdens. Suffice it to say, SDS will not be allowed to obtain an advantage from illegal
activities.
              The judgment is affirmed. Costs are awarded to respondent Commission.
              CERTIFIED FOR PUBLICATION.




                                          GILBERT, P. J.


We concur:



              YEGAN, J.



              PERREN, J.




                                            8
                                 Dodie A. Harman, Judge

                        Superior Court County of San Luis Obispo
                          ______________________________


              Pacific Legal Foundation, Paul J. Beard II, Damien M. Schiff for Plaintiffs
and Appellants.
              Richard M. Ross for California Cattlemen's Association as Amicus Curiae
on behalf of Plaintiffs and Appellants.
              Briscoe Ivester & Bazel, John Briscoe, Peter Prows for Building Industry
Association of the Bay Area as Amicus Curiae on behalf of Plaintiffs and Appellants.
              Kamala D. Harris, Attorney General, John A. Saurenman, Senior Assistant
Attorney General, Christina Bull Arndt, Supervising Deputy Attorney General, for
Defendant and Respondent.
