Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS102404, David P. Yaffe, Judge.
Sonnenschein Nath & Rosenthal, Martin J. Foley and David S. Alverson for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, J. Matthew Rodriguez, Assistant Attorney General, Jamee Jordan Patterson and Hayley Peterson, Deputy Attorneys General, for Defendants and Respondents California Coastal Commission and California Coastal Conservancy.
Law Office of David J. Weinsoff and David J. Weinsoff for Defendant and Respondent Access for All.
VOGEL, Acting P.J.
A public access easement was created in 1985 by a Malibu landowner’s grant given as a condition of the landowner’s request to the California Coastal Commission for a permit to remodel their beach-front home. By December 31, 2005 at the latest, the adjacent property owner had actual knowledge of the easement and its effect on the value of his property, but waited until March 2006 to file this petition for a writ of administrative mandate against the Commission. The trial court sustained the Commission’s demurrer on the ground that this action is barred by the 60-day period of limitations found in Public Resources Code section 30801. We agree that the action is time-barred and affirm the judgment.
FACTS
A.
Jack Roth owns and lives in a beach-front house on Pacific Coast Highway in Malibu, California. Lisette Ackerberg lives next door to Roth (the property is owned by the Lisette Ackerberg Trust).
In November 1984, Mrs. Ackerberg and her now-deceased husband, Norman Ackerberg, applied to the California Coastal Commission for a permit to demolish their house and build a new 6,400 square foot home, swimming pool, three-car garage, and septic system on their property. As required by the Commission’s regulations, the Ackerbergs included in their application the names and addresses of all owners and occupants of property within 100 feet of the Ackerbergs’ property, including Roth, and enclosed pre-addressed, postage-paid envelopes for the Coastal Commission to use to give notice of the Ackerbergs' permit application and any related proceedings. In addition, the Ackerbergs posted a “Notice of Pending Permit” on their property (the notice described the proposed development and included the Commission’s contact information).
The Commission originally scheduled a hearing on the Ackerbergs' permit application for December 1984, but (before any notices were sent out) continued it to January 24, 1985, prepared a notice of that hearing noting, among other things, that the staff report was available on request, and sent the notice to everyone on the Ackerbergs' list (although not in their envelopes), including Roth. The staff report recommended approval of the Ackerbergs' project, but extracted from the Ackerbergs an offer to dedicate a 10-foot wide vertical public access easement along the property line they shared with Roth.
The public hearing was held, the easement was recorded (on April 4, 1985), the Ackerbergs’ application was approved, and Roth watched as the Ackerbergs demolished their old house and built the new structures.
B.
In 2003, Access for All (AFA), a California nonprofit corporation, applied to the Coastal Commission and the California Coastal Conservancy for the right to open and operate the Ackerberg easement. The Commission approved the application on December 17, 2003, and recorded an instrument to that effect. In 2005, AFA commissioned a survey of the easement and, based on the survey results, demanded that Mrs. Ackerberg undertake certain remedial measures to make the easement available for public use.
In November 2005, Roth entered a contract to sell his property for $19.5 million, but in December learned that the prospective buyer had cancelled the transaction when he discovered the easement during a title search of the neighboring properties. On March 24, 2006, Roth wrote to the Coastal Commission, demanding revocation of the easement and stating that he “did not discover the [e]asement until 2005, when a purchaser of [his] property terminated the purchase agreement after discovering the [e]asement during a title search of adjacent properties.” On March 27, 2006, the Commission wrote to Roth, explaining that it lacked legal authority to revoke an easement.
C.
On March 29, 2006, Roth filed a verified complaint and petition for a writ of mandate, naming the Commission, the Conservancy, and AFA as respondents and defendants and alleging that, in 2005, he had entered into an agreement to sell his property to a third party for $19.5 million, that the “sale would have netted a tremendous profit” for him, but that during the escrow period the purchaser’s title search revealed the existence of the easement and, as a result, the purchaser terminated his purchase agreement, “expressly cit[ing] the easement as the reason he was canceling the agreement.” According to Roth, he “was unaware of the easement until he learned about it in 2005 from the proposed purchaser of [his] property.”
The Commission, the Conservancy, and AFA demurred, relying on the Coastal Act’s 60-day statute of limitations. (Pub. Resources Code, § 30801.) The demurrers were sustained with leave to amend, and Roth filed an amended pleading in which he alleged that, at about the time the prospective buyer cancelled, Roth’s real estate agent told him that she had heard from the purchaser’s representative that there was a possibility of an easement on the Ackerberg property, and that the purchaser elected to cancel the purchase agreement on that ground. “Thus,” he alleged, he “first became aware of the possibility of an easement in late November-December 2005.”
Undesignated section references are to the Public Resources Code.
The Commission, the Conservancy, and AFA again demurred and this time, over Roth’s opposition, the demurrers were sustained without leave to amend -- on the ground that the 60-day period of limitations began to run when Roth had constructive notice of easement by way of the documents recorded in 1985 or, at the latest, in December 2005, at which point Roth had actual notice of the easement when his buyer told him about it (and this action was not filed until March 2006).
Roth appeals from the judgment thereafter entered.
At about the same time Roth filed his notice of appeal, he filed a petition for a writ of supersede as in which he asked us to stay any action vis-à-vis the easement pending resolution of this appeal. After we requested but did not receive opposition, we granted the supersede as petition and issued a stay.
DISCUSSION
Roth contends the 60-day period of limitations did not begin to run until he received the March 27, 2006 letter from the Commission confirming the existence of the easement and refusing to revoke it. We disagree. As explained below, any defect in the notice to Roth at the time of the 1985 Ackerberg hearing or the Ackerbergs’ dedication of the easement is irrelevant in light of Roth’s admission in his verified pleadings that he had actual notice of the easement in November or December 2005 -- when the prospective buyer refused to complete the sale because of the easement. At the latest, the 60-day period was triggered in December 2005 and expired 28 days before this lawsuit was filed in March 2006.
We exercise our independent judgment on this de novo review of the legal issue presented by the demurrers. (Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110, 1115.)
A.
In his original pleading, Roth alleged that, “[d]uring 2005, [he] entered into an agreement to sell [his] property to a third party for $19.5 million” but that, during “the escrow period, the potential purchaser . . . conducted title searches for the two properties sitting on either side of the Roth property and, in so doing, discovered the easement. [¶] The purchaser . . . terminated the purchase agreement . . . and expressly cited the easement as the reason he was cancelling the agreement. . . . [¶] Roth was unaware of the easement until he learned about it in 2005 from the proposed purchase of [his] property.” (Emphasis added, capitalizations omitted.)
In his amended pleading, Roth changed the relevant provision to allege: “At or about the time [the prospective buyer cancelled the deal], Roth’s real estate agent advised Roth that she had heard from the . . . purchaser’s representative that there was the possibility of an easement on the Ackerberg property and that the purchaser elected to cancel the purchase agreement. Thus Roth first became aware of the possibility of an easement in late November-December 2005.” (Emphasis added, capitalizations omitted.) This action was not filed until March 29, 2006.
B.
At the time the Ackerbergs applied for permission to build a new house, the Commission’s regulations required notice to all parties interested in any application for a coastal development permit. (Cal. Code Regs., tit. 14, §§ 13054(a), (c) [1984-1985 version].) Under the California Coastal Act of 1976, any aggrieved person, including one who has not received notice of the application, has the right to obtain judicial review of the Commission’s decision by filing a petition for a writ of administrative mandate within 60 days after the challenged decision becomes final. (§ 30801; see Pillsbury v. South Coast Regional Com. (1977) 71 Cal.App.3d 740, 749, 751.) With regard to the 60-day limitation of section 30801, the law is settled that the statutory period within which an administrative mandamus petition may be filed is not jurisdictional, and that the limitations period may be tolled. (Liberty v. California Coastal Com. (1980) 113 Cal.App.3d 491, 496; Patrick Media Group, Inc. v. California Coastal Com. (1992) 9 Cal.App.4th 592, 617.)
As relevant, section 30801 provides: “Any 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. [¶] For purposes of this section . . ., an ‘aggrieved person’ means any person who, in person or through a representative, appeared at a public hearing of the commission, local government, or port governing body in connection with the decision or action appealed, or who, by other appropriate means prior to a hearing, informed the commission, local government, or port governing body of the nature of his concerns or who for good cause was unable to do either. ‘Aggrieved person’ includes the applicant for a permit and, in the case of an approval of a local coastal program, the local government involved.”
C.
Assuming for the sake of discussion that Roth did not receive notice of the Ackerberg hearing, he could have filed an administrative mandamus action within 60 days from the date he obtained actual notice of the easement (an unstated day in November or December 2005). Assuming further that he acquired actual notice on the last day of December, he could have filed a petition on or before March 1, 2006. (Patrick Media Group, Inc. v. California Coastal Com., supra, 9 Cal.App.4th at p. 617 [PMG] [in an action where the petitioner had no notice of the hearing but later acquired actual notice, Division Three of our court explained that, had “an administrative mandamus action been filed within 60 days of [the date of actual notice], it would not in fairness have been found to be time-barred”].) But as PMG holds, an action filed more than 60 days after actual notice is barred by section 30801. (Patrick Media Group, Inc. v. California Coastal Com., supra, 9 Cal.App.4th at p. 618.)
To avoid this result, Roth contends the rule announced in PMG requires “that the Coastal Commission provide ‘direct and unequivocal notice’ to [him] of the easement condition before the time limit for [him] to challenge the easement condition [began] to run. As alleged in [his amended pleading], the . . . Commission did not provide such ‘direct and unequivocal notice’ to [him] until March 27, 2006 [the date of the Commission’s letter confirming the existence of the easement].” Roth misconstrues PMG, in which there was no notice of the problem until the Commission communicated with the plaintiff.
The coastal property in PMG was vacant except for three billboards leased to an advertising company (PMG), with the lease giving the owner the right to terminate it upon 60 days notice if a building was to be constructed on the property. In 1985 and 1986, the owner sought a permit to develop the property, which (after a hearing held without notice to PMG) was granted subject to a condition that the owner remove the billboards. The owner notified PMG that it was terminating the lease on April 1, 1986, and asked PMG to remove the billboards by May 1. PMG complied but on April 22, wrote to the Commission to demand compensation under a specific section in the Business and Professions Code. On April 28, the Commission replied, telling PMG to discuss compensation with the owner. PMG then filed a formal claim for compensation, which was rejected in October 1986. On February 24, 1987, PMG filed an inverse condemnation action against the Commission and prevailed in the trial court -- but lost on appeal, where Division Three held that PMG’s only remedy was a petition for administrative mandate under section 30801 -- which was time-barred by the date the compensation action was filed. (Patrick Media Group, Inc. v. California Coastal Com., supra, 9 Cal.App.4th at pp. 598-601.)
PMG does not announce a general rule that actual notice depends upon direct and unequivocal notice of the problem (here, the easement), or that such notice must come from the Commission, and Roth’s notion about this issue is wholly inconsistent with the established rule that a statute of limitations is tolled only “until the plaintiff discovers, or has reason to discover, the cause of action.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 398, fn. 3.) In PMG, the aggrieved party had no reason to believe his statutory demand for compensation would be denied until it was, in fact denied. In our case, by contrast, Roth admits in his verified pleading that he had “direct and unequivocal notice” of the existence of the easement and his damages by December 2005.
In sum, Roth’s petition had to be filed by March 1, 2006. Because it was not filed until March 29, it was 28 days late and thus barred by the 60-day period of limitations. (§ 30801.)
Our conclusion that Roth’s petition was time barred based upon his actual notice of the existence of the easement makes it unnecessary to consider the other arguments advanced on this appeal.
DISPOSITION
The judgment is affirmed, respondents are awarded their costs of appeal, and the stay granted in response to the supersedeas proceeding shall dissolve on the day this opinion becomes final.
We concur: ROTHSCHILD, J., JACKSON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.