Stearn v. County of San Bernardino

170 Cal.App.4th 434

88 Cal. Rptr. 3d 330

FREDERIC ELTON STEARN, Plaintiff and Appellant, v. COUNTY OF SAN BERNARDINO et al., Defendants and Respondents GENERAL OUTDOOR ADVERTISING, Real Party in Interest and Respondent.

No. E043334.

Court of Appeals of California, Fourth District, Division Two.

January 5, 2009.

Sabine and Morrison and Randal R. Morrison for Plaintiff and Appellant.

No appearance for Defendants and Respondents.

Gary S. Mobley for Real Party in Interest and Respondent.

OPINION

RAMIREZ, P. J.

Plaintiff and Appellant Frederic Elton Stearn (Appellant) appeals from a judgment of dismissal entered after the trial court sustained the demurrer of real party in interest and respondent General Outdoor Advertising (Outdoor) to Appellant's first amended complaint and petition (Complaint and Petition). Appellant challenged approval by the Board of Supervisors of San Bernardino County (Board or County) of 14 conditional use permits sought by Outdoor to erect billboards in desert areas along Interstates 15 and 40. Appellant also challenged the Board's rezoning of the corresponding parcels of land to commercial and business uses, which rezoning Appellant alleged was done for the sole purpose of allowing the County to permit Outdoor to erect the billboards, in violation of state and federal law.

Appellant here challenges only the dismissal of its fourth cause of action for administrative mandamus under Code of Civil Procedure section 1094.5.¹ Appellant contends the trial court erred when it ruled that the cause of action was barred by the 21-day statute of limitations found in section 1094.8, which applies to proceedings regarding permits for "expressive conduct protected by the First Amendment to the United States Constitution." As discussed below, we conclude that the trial court erred in dismissing the fourth cause of action. This is because the expedited judicial review provided by section 1094.8 is available only when the license applicant or the issuing public agency files an action challenging the grant or denial of a license for expressive conduct, not when a third party does so. In addition, we disagree with Outdoor's main alternate ground for dismissal, that Appellant must wait to challenge the Board's rezoning actions and permitting of the billboards as violations of California's Outdoor Advertising Act (Bus. & Prof. Code, § 5200 et seq.; Act) until after Outdoor obtains the necessary permits from the California Department of Transportation (CalTrans).

STATEMENT OF FACTS

On September 12, 2006, the Board approved 14 conditional use permits (CUP's) allowing Outdoor to erect a series of billboards in three desert areas of the County adjacent to Interstates 15 and 40. At the same public meeting the Board also adopted several amendments to its general plan that included rezoning these areas to "highway commercial." This rezoning was necessary to allow the Board to approve the CUP's. Appellant appeared at this public hearing to oppose the CUP's. Appellant alleges in the Complaint and Petition that he is a resident of Newberry Springs, an unincorporated community located within the County, and that he brings this action on behalf of the public interest in protecting the scenic vistas along public highways, to prevent visual pollution from billboards, and to vindicate the goals, letter and spirit of the federal Highway Beautification Act and the Act.

On October 11, 2006, Appellant filed suit to challenge the CUP's and rezoning approvals. The initial complaint purported to state causes of action for declaratory relief, injunctive relief and violation of the Act. On October 31, 2006, Appellant filed a first amended complaint and petition, in which he added causes of action for traditional mandate and administrative mandamus. Appellant also added the allegation that he is the owner of real property in the vicinity of some of the proposed billboards and will be adversely affected if the billboards are constructed.

The main basis for the Complaint and Petition is that the County issued the CUP's only after rezoning the land upon which Outdoor wanted to place its billboards, and that the rezoning took place for the sole purpose of allowing the billboards to be placed upon the land, in violation of state and federal law, as set forth in United Outdoor Advertising Co. v. Business, Transportation & Housing Agency (1988) 44 Cal.3d 242 [242 Cal.Rptr. 738, 746 P.2d 877] (United Outdoor Advertising). "[T]he zoning must have independent validity. Action that is not part of comprehensive zoning and is intended primarily to permit outdoor advertising structures is not recognized for outdoor advertising control purposes. [Citation.]" (Id. at p. 248.) Appellant alleged that the County violated the Act, including Business and Professions Code section 5405, "by adopting `phony zoning' for the purpose of allowing billboards" in areas not otherwise compatible with billboards. This is because, Appellant alleged, the desert areas at issue are not "business areas" as defined in Business and Professions Code section 5205² and United Outdoor Advertising; that is, they are not "traditional commercial and industrial zones, in which such uses predominate."

On December 4, 2006, Outdoor filed a demurrer to the Complaint and Petition. After briefing by all parties, the trial court held a hearing on the demurrer on March 15, 2007. At the conclusion of the hearing, the trial court sustained the demurrer to the first three causes of action because they challenged a government agency's discretionary land use decisions, which are reviewable only by administrative mandate under section 1094.5.

The trial court also found that the fourth cause of action for administrative mandate was barred by the 21-day statute of limitations found in section 1094.8: "Despite the fact that no message has been placed on the proposed billboards, the billboards will be used to express free speech. To deny billboards is to restrict speech. [Citation.] [¶] The court finds that the expedited procedure afforded by section 1094.8 applies to this case since First Amendment protections are involved here."

This appeal followed.

DISCUSSION

1. Standard of Review

On appeal from an order of dismissal after an order sustaining a demurrer, the standard of review is de novo: we exercise our independent judgment about whether the complaint states a cause of action as a matter of law. (Holcomb v. Wells Fargo Bank, N.A. (2007) 155 Cal.App.4th 490, 495 [66 Cal.Rptr.3d 142].) First, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. Next, we treat the demurrer as admitting all material facts properly pleaded. Then we determine whether the complaint states facts sufficient to constitute a cause of action. (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865 [62 Cal.Rptr.3d 614, 161 P.3d 1168], citing Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 [119 Cal.Rptr.2d 709, 45 P.3d 1171].)

We do not, however, assume the truth of contentions, deductions, or conclusions of law. (Lazy Acres Market, Inc. v. Tseng (2007) 152 Cal.App.4th 1431, 1435 [62 Cal.Rptr.3d 378].) If a complaint is insufficient on any ground specified in a demurrer, the order sustaining the demurrer must be upheld even though the particular ground upon which the court sustained it may be untenable. (Saks v. Damon Raike & Co. (1992) 7 Cal.App.4th 419, 426 [8 Cal.Rptr.2d 869].)

2. Applicability of Section 1094.8

(1) By its terms, section 1094.8 requires that "an action or proceeding to review the issuance, revocation, suspension or denial of a permit or other entitlement for expressive conduct protected by the First Amendment to the United States Constitution shall be conducted in accordance with" its provisions. If the party bringing the action is the permit applicant, the action must be in the form of a petition for writ of mandate. (§ 1094.8, subd. (d)(2).) In any case, the action must be filed within 21 days after the public agency's final decision on the permit. (§ 1094.8, subd. (d)(3).) The public agency must make available the administrative record within five court days following receipt of the written notice of appeal. (§ 1094.8, subd. (d)(1).) The trial court must set the hearing on the petition to be held within 25 calendar days after filing. (§ 1094.8, subd. (d)(4).) The court must render its decision no later than 20 calendar days after submission, or 50 calendar days after filing, whichever is earlier. (§ 1094.8, subd. (d)(5).) If other court business makes the court unable to meet the deadlines, the presiding judge shall request temporary assignment of a judicial officer to hear the matter. (§ 1094.8, subd. (e).) The parties may jointly waive these time limits. (§ 1094.8, subd. (f).)

Section 1094.8, subdivision (d)(2) clearly states that "Either the public agency or the permit applicant may bring an action in accordance with the procedure set forth in this section." Appellant is neither.

Further, the legislative history of section 1094.8 makes it clear that the Legislature enacted it to: (1) provide constitutionally required procedural safeguards, i.e., prompt judicial review, for license or permit applicants whose application for expressive conduct is denied by a public agency; and (2) provide prompt judicial review and confirmation for public agencies who deny such a permit.³ There is no mention whatsoever in the legislative history about providing prompt judicial review of third party challenges.

(2) The Legislature enacted section 1094.8 in 1999 as urgency legislation, in response to the 9th Circuit's decision in Baby Tam & Co., Inc. v. City of Las Vegas (9th Cir. 1998) 154 F.3d 1097 (Baby Tam I).⁴ (Sen. Bill No. 1165 (1999-2000 Reg. Sess.) § 2.) The court in Baby Tam I ordered the trial court to enjoin the City of Las Vegas from enforcing its business licensing scheme for adult bookstores. The court...