Filed 4/16/21 (unmod ified opn. attached) CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

WARREN M. LENT et al.,

Plaintiffs, Appellants, and Cross

- respondents,

v.

CALIFORNIA COASTAL COMMISSION,

Defendant, Respondent, and Cross

- appellant,

CALIFORNIA STATE COASTAL CONSERVANCY et al.,

Real Parties in Interest. B292091

(Los Angeles County Super. Ct. No. BS167531)

ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN APPELLATE JUDGMENT]

THE COURT:

The opinion filed on April 5, 2021 and certified for publication, is modified as follows:2 1. On page 43, in the second sentence of the last paragraph, add the phrase “in their as

- applied challenge” after the word “contend,” so that the sentence reads:

They do not contend in their as

- applied challenge, for example, that they needed to cross

- examine or o therwise question a particular witness the Commission relied on or that they needed to subpoena a particular witness who was unwilling to testify.

2. In footnote 8 on pages 30 to 31, r eplace the second sentence in the footnote, which begins with the word “Because,” with: But the trial court did not remand based on either purported finding, instead determining the Lents did “not challenge the Commission’s calculation of the fine” in thei r petition. Therefore, we do not address the parties’ arguments on these issues.

Appellant’s petition for rehearing is denied.

This order does not change the appellate judgment.

PERLUSS, P. J. SEGAL, J. FEUER, J.F iled 4/5/21 (unmodified version) CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

WARREN M. LENT et al

. ,

P laintiff s , Appellants

, and Cross

- r espondents

,

v.

CALIFORNIA COASTAL COMMISSION

,

Defendant

, Respondent , and Cross

- a ppellant

,

CALIF ORNIA STATE COASTAL CONSERVANCY et al.

,

Real Parties in Interest. B 292091

(Los Angeles County Super. Ct. No. B S167531 )

APPEAL from a judgment of the Superior Court of Los Angeles County. James C. Chalfant, Judge

. Revers ed with
directions

. Pacific Legal Foundation, Damien M. Schiff, Joshua P. Thompson, and J eremy Talcott; FisherBroyles and Paul J.
Beard II for Pla intiffs, Appellants, and Cross

- r espondents.2 Law Offices of Thomas D. Roth and Thomas D. Roth for Center for Balanced Land Use, Inc. as Amicus Curiae on behalf of Plaintiffs, Appellants, and Cross

- respondents. Knipe Law Firm and V. Nicholas Knipe for Malibu
Association of Realtors as Am icus Curiae on behalf of Plaintiffs, Appellants, and Cross

- respondents. Berding Weil and Fredrick A. Hagen; Kara M. Rollins and Harriet H. Hageman for New Civil Liberties Alliance as Amicus Curiae on behalf of Plaintiffs, Appellants, and Cross

- respondents. Kara M. Rollins and Harriet H. Hageman for National Federation of Independent Business Small Business Legal Center as Amicus Curiae on behalf of Plaintiffs, Appellants, and Cross

respondents. Chris Scheuring for California Farm Bureau Federation as
Amicus Curiae on behalf of Plaintiffs, Appellants, and Cross

respondents. Xavier Becerra, Attorney General

, Daniel A. Olivas, Senior Assistant Attorney Gene ral, Christina Bull Arndt and David
Edsall Jr. , Deputy Attorney s General

, for Defendant

, Respondent , and Cross

- a ppellant

. Environmental Law Clinic, Mills Legal Clinic at Stanford Law School, Deborah A. Sivas, and Molly L. Melius for Surfrider Foundation and Azul as Amici Curiae on behalf of Defendant, Respondent, and Cross

- appellant.

________

_______________3 INTRODUCTION

A h o use sits on beachfront property in Malibu

. A five

- f oot

wide vertical easement

, owned by the California Coastal Conservancy for public access to the coast

, encumbers one side of the property

. By 1983 the property owner had built on the

easement area a deck providing private access to the beach , a staircase from the deck leading to the house , and a gate blocking public access to the easement area

. The California Coastal
Commission , which enforc es the California Coastal Act (Pub. Resources Code, § 30000 et seq.) 1 and remedies violations of permit conditions, did not approve these structures

. Warren and Henny Lent purchased the property in 2002.
In 2007 the Commission began asking the Lents to remove the

structures so the Conservancy could build a publi c access way over the easement area . The Lents refus ed

. In 2014 the
Commission served the Lents with a notice of intent to issue a
cease and desist order . The notice advised the Lents the Commission could impose administrative penalties under section
3 08 21 , a statute enacted that year authorizing the Commission to impose penalties on property owners who violate the public

access provisions of the Coastal Act

. Still, the Lents ref used to
remove the structures.
Two weeks before the scheduled hearing on the cease and
desist order, the Commission staff issued a report detailing the
Lents ’ alleged violations of the Coastal Act

. In the report the
Commission staff recommended that the Commission impose a penalty of between $ 80 0,000 and $1

, 5 00,000 (and specifically

1 Undesignated statutory references are to the Public Resources Code.4

recommended a penalty of $950,000 )

, but stated that the Commission was justified under the circumstances in imposing a penalty of up to $8,3 7 0,000

. At the hearing t he Commission
issued the cease and desist order and i mposed a penalty of $4

, 1 85,000

. The Lents filed a petition for writ of mandate asking the
trial c ourt to set aside the Commission’s order and penalty

. In addition to contending substantial evidence did not support the Commission’s determination that the Lents violated the Coastal Act, the Lents argued section 30821 is unconstitutional on its
face because it allows the Commission to impose substantial

pen alties at an informal hearing where the alleged violator does
not have the procedural protections traditionally afforded defendants in criminal proceedings. The Lents also argued that section 30821 is unconstitutional as applied to them and that the penal ty violated the constitutional prohibition on excessive fines.
The trial court granted the petition in part and denied it in part

, ruling substantial evidence supported the Commission’s decision
to issue the cease and desist order and to impose a penalt y

. The court ruled, however, the Commission violated the Lents ’ due process rights by not giving them adequate notice of the amount of the penalty the Commission intended to impose

. The refore,
the court set aside the penalty and directed the Commission to
allow the Lents to submit additional evidence. Both the Lents and the Commission appealed

. We conclude substantial evidence support ed the
Commission’s decision to issue the cease and desist order

. We
also conclude the Commissio n did not violate the Lents ’ due

process rights by imposing a $4,185,000 penalty , even though its
staff recommended a smaller penalty

, because the Commission5

had previously advised the Lent s it could impose a penalty of up to $11,250 per day and the Commission staff specifically advised
the Lents t hat t he Commission could impose a penalty of up to $8,3 7 0,000. Therefore, we reverse the trial court’s judgment remanding the matter to the Commission

. On the L ents’ appeal of the penalty, we conclude the Lents
failed to show section 30821 is unconstitutional

, either on its face or as applied to the m

. We also conclude the penalty does not
violate the constitutional prohibition on excessive fines. Therefore, we reverse the superior court’s judgment and affirm
the Commission’s order.

FACTUAL AND PROCEDURAL BACKGROUND

A. A Prior Owner Builds the House
The Lents own property in Malibu. South of the property is the ocean; north of the property is the Pacific Coast Highway

. In
1978 a prior owner of the property applied to the Commission for

a c oastal d evelopment p ermit to build a house . As a condition of approving the permit, the Commission required the prior owner to dedicate a vertical public

- access easement on the east ern side of the property. In 1980 the prior owner recorded an offer to
dedicate a five

- foot

- wide easement, and in 1982 the Conservancy
recorded a c ertificate of acceptance. A storm drainpipe, owned by
the County of Los Angeles, runs across the easement area

. N otwithstanding the permit condition and the easement, the prior owner built in the easement area a wooden deck that
sits above the drainpipe and a staircase that provides access from
the deck to the house

. The staircase occupies 27 inches of the
five

- foot

- wide easement. The deck provides access to the sand6

through a (diffe rent) staircase. The owner also constructed a fence and gate adjacent to the sidewalk that blocks access to the

easement area from the highway. The Commission did not issue a permit or otherwise approve any of these structures. This is a

v iew of the eas ement area from the north (i.e., PCH) :7 B. The Commission Attempts T o Obtain the Lents’
Consent T

o Remove the Unpermitted Structures In 1993 the Conservancy sent a letter to the owners of the property informing them of the easement and stating the Conservancy had “ the right to open for public use a five

- foot

- wide corridor for pedestrian access to and from the shoreline

. ” The Conservancy also stated , however, the easement would “remain
closed until the Conservancy locate [d] a management agency and

open [ed] this easement to public use

. ” Observing that the gate blocked access to the easement area, the Commission asked the

owners to “either remove the gate ” or “ seek the Conservancy’s permission to keep the gate in place during the period that the accessway is officially closed” and remove the gate once the Conservancy decided to open the easement. The Lents purchased the property in 2002 (with the gate intact)

. In April 2007 the Commission sent a letter to the Lents stating the structures in the easement area , including the deck
and the gate, were inconsistent with the easement and violated
the Coastal Act and asking the Lents to remove all structure s in
the easement area . The Commission also attached a copy of the house’s original permit conditions. The next month the
Commission served the Lents with a “ notice of intent to
commence cease and desist order proceedings

. ” The Lents did not

agree to remove the structures

. B ecause the topography of the easement area includes several steep elevation drops, the Conservancy determined it had
to build an accessway with stairs to make the easement usable
for the public. In 2008 the Conservancy hired a contractor to
conduct a surv ey of the easement area to assess the feasibility of building a n accessway , and i n 2010 an architect ural firm8

comp l eted conceptual plans for the accessway. L ater that year

, representatives from the Commission

, the Conservancy, and the
architectur al firm met at the property with the Lents and their attorneys to discuss development of the accessway

. During the next several years the Commission and the
Lents’ attorneys exchanged correspondence in which the
Commission asked t he Lents to r emove the structures in the
easement area and the Lents objected for various reasons. Having failed to resolve the issue, the Commission sent a letter to
counsel for the Lents in June 2014 stating that

, “ under the newly
enacted Section 30821

, . . . in cases involving violations of the public access provisions of the Coastal Act, the Commission is authorized to impose administrative civil penalties in an amount up to $11,250 per day per violation. ”

C

. Th e Commission Issues a Cease and D esist Order and Imposes a Monetary Penalty In September 2015 the Commission served the Lents with a
new notice of intent to issue a cease and desist order and to impose penalties under section 30821. In February 2016 the
Lents served the Commission with a stat ement of defense. Among other arguments, t he Lents contended th e Commission had approved the structures in t he easement area

, the doctrine of
laches barred the Commission from requiring the Lents to

remov e the stairway , and the Commission could not impose penalties on the Lents because the Lents had no t buil t the allegedly un permitted structures. On November 18, 2016 , two weeks before the scheduled hearing on the cease and desist order, the Commission staff
submitted a report with proposed findings and recommendations

.9

The report stated that under section 30821 “ [ t ] he potential penalty that the Commission could impose” was $8,370,000

— $11,250 per day for 744 days, beginning November 24, 2014 , the
date the Commission advised the Lents that th eir violations of
the Coastal Act could expose them to administrative penalties.
The staff report stated that a penalty of up to $8,370,000 was
warranted because the violations caused “significant blockage of public access” to the coast , there was limited coastal access in the area, the Lents refused to undertake any “voluntary restoration
efforts” despite the Commission’s efforts over many years to obtain the Lents’ consent, and the Lents used the property as a
vacation rental and market ed the property’s private beach access
on at least one vacation rental website

. The Commission staff, however, “taking the most conservative possible approach in weighing t he relevant statutory factors ,” recommended the Commission impose a penalty between $800,000 and $1,500,000, and specifically $950,000.
At the public hearing the Commission staff presented its findings and conclusions , again recommending the Commission impose a $950,000 penalty

. Counsel for t he Lents presented a defense

, and Warr e n Lent spoke at the hearing

. After the Lents’ presentation , several individuals spoke, including the executive
officer of the Conservancy

. The executive officer stated that the only impediment to opening the easement for public access was
the Lents’ refusal to remove the structures , and b oth the
executive officer and another member of the Conservancy stated
that t he Conservancy’s engineers had determined it was feasible
to build an accessway in the easement area

. After the presentations, the commissioners deliberated.
S everal commissioners stated the Lents’ conduct was10

particularly egregious and warranted a penalty higher than the
staff ’s r ecommend ation

. Ultimately

, t he Commission voted unanimously to issue the ceas e and desist order requiring the
Lents to remove the structures in the easement area and to impose a penalty of $4,185,000.

D. T he Lents File a Petition for Writ of Mandate , Which
the Trial Court Grants in Part In February 2017 the Lents filed a petition for a wri t of
mandate. In addition to making the arguments they made during the administrative proceedings , the Lents argued section
30821 is unconstitutional on its face because it allows the
Commission to impose substantial penalties without providing property owners sufficient procedural protections. The Lents also argued the penalty was an excessive fine under the federal and
state constitutions

. The trial court found that there was “overwhelming
evidence ” t he Lents violated the Coastal Act by “ interfering with the public’s right of access to the ocean via the easement” and that the “Conservancy has made clear that the stairway/gate has substantially impaired its ability to move forward with a public

accesswa y.” The court ruled that substantial evidence supported the Commission’s cease and desist order, that laches did not bar
the Commission from issuing the order, and that the Commission was authorized to impose penalties. Although t he court ruled the penalty was not constitutionally excessive

, the court also ruled
the Commission violated the Lents ’ due process rights by “deviat[ing] upward from the staff

- recommended $950,000” penalty without providing the Lents an “opportunity to arg ue against the Commission’s .

. . reasoning for imposition of a11

considerably larger fine.” The court stated: “The amount of the fine in this case is substantial and the hearing procedure did not give [the Lents] an opportunity to present all available ev id ence and argue against the $4.1 million penalty imposed. An additional opportunity to present evidence would have enhanced the reliability of the quasi

- criminal proceeding and the fine actually imposed, and a safeguard permitting [the Lents] to present additional penalty evidence would not adversely impact the Commission’s procedure.”
T he trial court entered judgment ordering the Commission to set aside the penalt y, inform the Lents of a specific proposed penalty, and give the Lents an opportunity to present additional
evidence. The trial court otherwise denied the Lents’ petition

. The Lents timely appeal ed , and the Commission timely cross

appealed

.

DISCUSSION

A. The Commission Did Not Abuse Its Discretion in Issuing the Cease and D esist Order

1. Standard of Review
Under the Coastal Act “ [a] ny aggrieved person” has the “right to judicial review of any decision or action of the commission by filing a petition for writ of mandate in accordance with [Code of Civil Procedu re] Section 1094.5 .

. . .” (§ 30801; see SLPR, L.L.C. v. San Diego Unified Port Dist. (2020)
49 Cal.App.5th 284, 321 [“‘a dministrative mandamus is the

“ proper and sole remedy ” for challenging or seeking review of ’ a [Commission] decision ”].) “[T]he trial court reviews the12

commission’s decision to determine whether the commission

‘ proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether ther e was any prejudicial abuse of
discretion. Abuse of discretion is established if the [ C ommission] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence. ’ ” ( Mountainlands Conservancy, LLC v. California Coastal Com. (2020) 47 Cal.App.5th 2 14, 230; see Code Civ. Proc., § 1094.5, subd. (b); San Diego Navy Broadway Complex Coalition v. California Coastal Com. (2019)
40 Cal.App.5th 563, 572 .) “‘O ur scope of rev iew is identical to
that of the trial court. [Citations.] We, like the trial court,
examine all relevant materials in the entire administrative record to determine whether the agency ’ s decision is supported by
substantial evidence. ’ ” ( San Diego Navy

, at p. 572; see Ross v. California Coastal Com. (2011) 199 Cal.App.4th 900, 922 .)

2. The Commission Proceeded in the Manner Required by Law in Issuing the Cease and
Desist Order
Section 306 00 requires “any person .

. . wishing to perform or undertake any development in the coastal zone” to “obtain a coastal development permit.” Under section 30810 the Commission may issue a cease and desist order after a public hearing if the Commission “ de termines that any person or governmental agency has undertaken, or is threatening to

u ndertake, any activity that (1) requires a permit from the
commission w ithout securing a permit or (2) is inconsistent with any permit previously issued by the commission

. . . .” The Lents

argue an owner who merely purchase s property containing13

unpermitted structures, but who did not build the structures,
does not undertake activity that requires a permit under the
Coastal Act . Therefore , according to the Lents, regardless of whether the structures in the easement area required a permit or violated the terms of the easement , the Commission erred in issuing the cease and desist order

. The law does not support the Lent s ’ interpretation of
section 30600

. Although the statute refers to the person “ wishing to perform or undertake ” de velopment , the requirement to obtain

a permit for any development in the Coastal Zone necessarily extends to subsequent owners of the property. “I t is well settled that the burdens of permits run with the land once the benefits have been accepted. ” ( Ojavan Investors, Inc. v. California Coastal
Com. (1994) 26 Cal.App.4th 516, 526 .) A successor obtains property “with the same limitation s and restrictions which
b ou nd” the prior owner. ( Id . at p. 527; see , e.g., City of Berkeley v. 1080 Delaware, LLC (2015) 234 Cal.App.4th 1144, 1151 [purchaser of property waives, “ by [its] purchase of deed

restricted lots, any right to a proper ty interest greater than that conveyed by [the] predecessors in interes t,” and the “ conditions of the permit remain enforceable against a subsequent owner of the property ”] ; Feduniak v. California Coastal Com. (2007)
148 Cal.App.4th 1346, 1379 [“ once the p eriod to challenge the [coastal development permit] restrictions had expired and they were recorded, they became immune from collateral attack by the original property owner and successor owners ”] ; Serra Canyon Co. v. California Coastal Com. (200 4) 120 Cal.App.4th 663, 668 [although the property owner “ was not a party to the original permits, it was bound by the inaction of its predecessor in
interest ”]; Ojavan

, at p. 525 [deadline for successors to challenge14

coastal development permits ran from the date the Commission issued the permit s , not the date the successor s purportedly violated the permit restrictions, because the successor s were

“ bound by what their grantee had to convey ”].) Therefore, a n owner who maintains a development on his or her property “undertakes activity” that requires a permit for purposes of
section 30810

, as does an owner who maintains a development inconsistent with a previously issued permit , regardless of whether he or she constructed the development. (See Ojavan
Invest ors, Inc. v. California Coastal Com. (1997) 54 Cal.App.4th
373 , 386 ( Ojavan II

) [former provision of the Coastal Act

, which provided that “ [a] ny person who violates any provision of this division shall be subject to a civil fine of not to exceed ten
thousa nd dollars

, ” applied to coastal permit violations and

“ extended to

. . . the successors

- in

- interest in the real property subject to the permits ”].)
Under the Lents’ theory, a property owner who develops coastal property has an obligation to obtain permit s under section
30600 , but a subsequent purchaser do es not. Developers could
avoid complying with the Coastal Act by simply selling the property before the Commission discove rs the development , a result inconsistent with the purposes and directives of the
Coastal Act. (See § 30001, subd. (d) [“[t]he Legislature hereby
finds and declares ” that “ future developments that are carefully planned and developed consistent with the po licies of this division, are essential to the economic and social well

- being of the people of this state ”]; § 30607 [“[a] ny permit that is issued or any development or action approved

. . . shall be subject to reasonable terms and conditions in order to ensure that such development or action will be in accordance with the provisions of [the Act]”]; see15

also § 30009 [ the Coastal Act “s hall be liberally construed to accomplish its purposes and objectives ”].)
The court in Leslie Salt Co. v. San Francisco Bay
Conservation & Development Com. (1984) 153 Cal.App.3d 605
reached a similar conclusion for nearly identical statutory language

. Leslie Salt involved a challenge to t he McAteer

- Pe tris
Act (Gov. Code, § 6660 0 et seq.) , which authorizes the San Francisco Bay Conservation and Development Commission (SFBCDC) to issue permits to any person or government agency seeking to place fill in the San Francisco Bay. (See id

. , §§ 66604, 66610, 66632.) The McAteer

- Petris Act has a provisio n nearly
identical to the cease and desist provision of the Coastal Act : T he
SFBCDC may issue a cease and desist order if it “ determines that a person or governmental agency has undertaken, or is threatening to underta ke, an activity that (1) requires a permit
from the commission wi thout securing a permit, or (2) is inconsistent with a permit previously issued by the
commission

. . . .” ( Id ., § 66638, subd. (a).) In Leslie Salt the
SFBCDC issued a cease and desist order requiring a property owner to remove fill that had been placed on the owner’s property, even though the SFBCDC did not prove the current owner placed or authorized the placement of the fill. ( Leslie Salt
Co

. , at p p. 609

- 610.) The court in Leslie Salt reversed the trial
court’s order issuing a writ of mandate to set aside the order,
hol d ing it was reasonable and necessary to construe the cease and desist provision so that its reference to “ one who ‘ has undertaken, or is threatening to undertake ’ the proscribed
activities refer s not simply to one responsible for the actual placement of unauthorized fill but also to one whose property is misused by others for that purpose

. . . . ” ( Id. at pp. 618, 622.)16 The Lents attempt to distinguish Leslie Salt on the ground that, unlike the McAteer

- Petris Act, the Coastal Act gives the
Commission an additional mechanism to remedy unlawful activity. Under section 30811 the commission may “ order
restoration of a site if it finds that the development has occurred without a coastal development permit

. . . , the development is
inconsistent with [the Coastal Act] , and the development is causing continuing resource damage .” According to the Lents

, the Commission may issue a restoration order against a property
owner who did not build an unpermitted development, but not a
cease and desist order. Section 3081 1 , however, does not say this.
Section 30811 does not specify against whom the Commission

m ay issue a restoration order, nor does it distinguish between developers and “mere” property owners

. C ontrary to the Lents’ assertion, nothing in the statutory scheme suggests that section
3081 0 appl ies only to persons who build an unpermitted development and that section 3081 1 appl ies more broadly to persons who buil d the development and to subsequent property

owners. Moreover, a lthough the Commission characterized its order requiring the Lents to remove the structures in the easement

area as a cease and desist order, the Commission’s findings
satisfied the requirements for issuing a restoration order under
section 30811. 2 The Commission determined that the Lents’ property c ontained unpermitted developments (an issue we will address) , that the developments were inconsistent with the easement and violated the public access provisions of the Coastal

2 The Commission’s 2007 notice to the Lents stated the Commission intended to issue both a cease and desist order under section 30810 and a restoration order under section 30811.17

Act

, and that “ the presence of the unpermitted development in a public easement is causing continuing resource damage ” by obstructing public a cce s s to the coast

. The Lents concede that

, under the regulations implementing section 30811, public access qualifies as a resource and that a Commission restoration order

may require an owner to remove an unpermitted development. (See Cal. Code Regs., tit. 14, § 13190, subd. (a) [“a s suc h term is
used in section 30811

. . . ‘ [r] es ource’ means any resource which is afforded protectio n under the policies of Chapter 3 of the Coastal Act, including but not limited to public access ”].)

3. Substantial Evidence Support ed the Commission’s Cease and D esist Order
In its cease and desist order

, t he Commission concluded
that the Lents , by retaining “solid material and structures” on the property, including “the separate placement of a gate, a staircase, decks, and supporting structures,” undertook activity that required a permit and that was inconsistent with a previously issued permit

. The Lents contend there was no
substantial evidence to support the Commission’s decision

. The re

was

. 3 As stated, with certain exceptions not applicable here, any person who wants to perform or undertake development in the coastal zone must obtain a coastal development permit.

3 Although the Lents apparently removed the unpermitted structures after the trial court entered judgment, they state they plan to rebuild them if they are successful in this litigation.18

(§ 30600.) 4 “‘[T] he Coastal Act’s definition of “ development ” goes beyond “ wha t is commonly regarded as a development of real property

. ”’” ( Surfrider Foundation v. Martins Beach 1, LLC (2017) 14 Cal.App.5th 238, 252; see 11 Lagunita, LLC v. California Coastal Com. (2020) 58 Cal.App.5th 904

, 919 [“ The
word ‘ development ’ as used in the Coastal Act is expansive. ”].) Not only does “d evelopment” include “ the placement or erection of any solid material or structure ” on land and “construction . . . or alteration of the size of any structure ,” it includes a ny “change
in

. . . access” to water. (§ 30106.) As the Commission found , the deck, staircase, and gate were developments that required a coastal development permit because they were solid materials or

structures built on land. ( See LT

- WR, L.L.C. v. California
Coastal Com. ( 200 7) 152 Cal.App.4th 770, 805 [“ gates and signs

are ‘ development ’ within the meaning ” of section 30106].) The deck, stairway

, and gate were also developments because they
altered access to water

— namely, by providing beach access to the occupants of the Lents’ property and restricting beach access to
all others. (See Surfrider Foundation , at p. 247 [landowners engaged in unpermitted development under section 30106 by closing a gate on a road to the beach, putting up a sign stating
the be ach was closed, cover ing a sign that advertised public access, and station ing security guards to deny public access] ; see also San Diego Unified Port Dist. v. California Coastal Com.

, supra , 27 Cal.App.5th at p. 1129 [“ a core principle of the [Coastal]
Act is to maximize public access to and along the coast as well as recreational opportunities in the coastal zone ”] .)

4 Exceptions include, for example, “[i]mmediate emergency work necessary to protect life or property.” (§ 30600, subd. (e)(1).) The Lents do not contend an exception applies.19 Substantial evidence support ed the Commission’s finding
the structures were not permitted . The plans the prior owner submitted in support of the original permit application do not depict any structures in the easement area (except the drainpipe)

. On the other hand, the plans do depict a deck on the
south side of the house facing the beach and an exterior stairwell

on t he western side of the house

— the side that does not include
the easement area

— providing access from the house to the beach

. In 198 0 the owner of the property also applied for, and the
Commission approved , an amended permit to extend the size of
the house toward the coast . Again, the prior owner submitted plans in support of the amendment that did not depict structures in the easement area, but that did depict the deck on the south
side of the house . The plans also depicted a proposed new staircase leading from the deck to the beach (which the Commission did not approve)

. Substantial evidence also support ed the Commission’s finding the structures in the easement were inconsistent with both the original permit and the amended permit . The original permit included a condition requiring all construction to “occur in accord with the proposal as set forth in the application,” with “[a]ny deviations from the approved plans” requiring review by
the Commission. The amended permit included the same condition, plus an additional condition requiring “[c]onstruction of the house and deck” to “occur in accord with the revised plans submitted by the applicant.” It also provided that “[a]ll conditions of the original permit not expressly altered by this amendment shall remain in effect.” The structures in the
easement area were inconsistent with these conditions.20 Notwithstanding this evidence

, t he Lents rely on two sets
of conceptual floor plan s to argue the Commission impliedly approved the deck and staircase in the easement area. The Lents

conten d the first set, which the prior owners submitted to the County of Los Angeles in 1980, depict s both the staircase in the
easement area and an exterior door on the east side of the house adjacent to the stairway. However, the Commission stated that this set of plans , while it may have been submitted to the county,
was not in the Commission’s permit file for the property , and it is

a reasonable inference (if not a self

- evident certainty) the
Commission would not have approved a stairway that encroach ed
two feet three inches into a five

- foot

- wide easement

— nearly half
the width of the easement

. And even if the Commission had approved these plans, the plans are largely illegible

, and the Lents provided no evidence the staircase and deck, as constructed, comply with these plans.
The second s et of plans, which the prior owner did submit
to the Co mmission, show s a n exterior door on the northeast
corner of the build ing adjacent to the easement area

. According to the Lents, th e existence of the door in the conceptual plan implies the Commission approved the stairway and deck.
However , the plans do not depict the stairway or the deck in the

easement area. Moreover , the prior owner submitted the plans in support of a 1981 amendment to the permit that had nothing to do with the purported exterior door. Th is third amendment

“ permit[ted] the applicant to extend the western corner of the .

. . house ”

— a corner not adjacent to the easement area

— an additional “ 18 inches beyond the stringline” between the corners of the adjacent buildings and stated that “[a]ll conditions of the21

original permit not expressly altered by this amendment shall remain in effect.” Finally, the Lents submitted the virtually identical declarations of two architects, both of whom stated that in the 1970s and 1980s they did not always depict “walkways, steps, planters and oth er landscape/ancillary features outside of the footprint of the residence ” on initial concept drawings submitted
to the Commission. This testimony , however, was not consistent
with either the original plans or the plans submitted in support
of the 19 80 am endment , each of which depicted a deck and stairway

—

just not the ones eventually built in the easement

area. The Commission did not have to find the architects’ declaration(s) credible or persuasive . ( See Ross v. California
Coastal Com.

, supra , 199 Cal.App.4th at p. 922 [“‘i t is for the Commission 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 i t” ].) And even if the Commission occasionally permitted stairways and decks t hat were not depicted o n conceptual plans, such action would have little bearing on whether the Commission approved the stairway and
deck here . Th e owners constructed the stairway and deck in a public

- access easement area, and the architects did not state they generally omit ted depictions of stairways and decks in public

access easement areas

. I n light of the numerous conceptual plans submitted to the Commission that did not depic t the se structures (but depicted similar structures elsewhere on the property), the permit condi tion requir ing the owner to dedicate

an easement for public access

, and the fact the structures22

encroached on the easement, there was substantial evidence the
Commission never issued permits for the structures

.

B

. Laches Did Not Bar the Commission from Issuing the
Cease and D esist Order The Lents argue laches barred the Commission’s
enforcement action because “ the Commission was guilty of unreasonable delay in seeking the [s] tructures’ removal, thereby unduly prejudicing the Lents and acquiescing as a matter of law
in their maintenance. ” The trial court did not err in ruling the Lents had not met their burden of showing laches barred the Commission from issuing the order.

“ Under appropriate circumstances, the defense of laches may operate as a bar to a claim by a public administrative

age ncy

. . . if the requirements of unreasonable delay and resulting prejudice are met. ” ( Robert F. Kennedy Medical Center
v. Belshe ( 1996 ) 13 Cal.4th 748 , 760
, fn. 9; accord, Krolikowski v. San Diego City Employees ’ Retirement System (2018 )

24 Cal.App.5th 5 37 , 56 8; Cedars

- Sinai Medical Center v. Shewry (2006) 137 Cal.App.4th 964, 985

- 986 .) 5 The standard of review for an order applying the doctrine of laches is generally
substantial evidence. ( Johnson v. City of Loma Linda (2000)

24 Cal.4th 61, 67 .) But because laches is an affirmative defense,

on which the defendant has the burden of proof ( Highland Springs Conference & Training Center v. City of Banning ( 2016 )

5 Laches, however, “‘“is not available where it would nullify an important policy adopted for the benefit of the public.”’” ( Krolikowski v. San Diego Employees’ Retirement System, supra, 24 Cal.App.5th at p. 568; see Fed uniak v. California Coastal Com.

, supra , 148 Cal.App.4th at p. 1381.)23

244 Cal.App.4th 26 7
, 282), the standard of review for an order refusing to apply laches is different. “‘ In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure

- of

- proof issue
as whether substan tial evidence supports the judgment

. . . .’ ” ( Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013)
218 Cal.App.4th 828, 838.) Instead, “‘ the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law ’” because “‘the appellant ’ s evidence was (1) “ uncontradicted and unimpeached ” and (2) “ of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding. ” ’” ( Ibid. ; see Eisen v. Tav angarian (2019) 36 Cal.App.5th 626, 647 [applying this standard to the defenses of waiver and estoppel]; Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 734 [applying this standard to an employer’s defense of undue hardship in an action under th e Fair Employment and Housing
Act ].) For purposes of laches, “‘“‘ [a] defendant has been prejudiced by a delay when the

. . . defendant has changed his position in a way that would not have occurred if the plaintiff had not delayed. ’” ’” ( George v. Shams

- Sh irazi ( 2020 ) 45 Cal.App.5th 134

, 142; see M

agic Kitchen LLC v. Good Things Internat., Ltd. ( 2007 )
153 Cal.App.4th 114 4, 1161.) The party asserting laches may
either “‘affirmatively demonstrate[ ]’” prejudice ( Highland Springs Conference & Training Center v. City of Banning

, supra , 244 Cal.App.4th at p. 282)

, or “ the element of prejudice may be

‘ presumed ’ if there exists a statute of limitations which is sufficiently analogous to the facts of the case, and the period of24

such statute of limitations ha s been exceeded by the public administrative agency in making its claim ” ( Fountain Valley Regional Hospital & Medical Center v. Bonta (1999)
75 Cal.App.4th 316, 323

- 324 ; see Malaga County Water Dist. v. St ate Water Resources Control B d

. (2020) 58 Cal.App.5th 447, 463 [discussing the two ways to show prejudice ] )

. The Lents do not contend in their opening brief that an analogous statute of
limitations creat es a presumption of prejudice (nor did they in the trial court)

. 6 They instead assert “ the Commission’s

6 In their reply brief the Lents cite the statutes of limitations applicable to an action alleging a patent or latent deficiency in construction of real property (Code Civ. Proc., §§ 337.1, subd. (a), 337.15, subd. (a)) and an “action upon a statute for a .

. . penalty to the people of this state” ( id.

, § 340, subd. (b)). To the extent the Lents argue these statutes of limitations create a presumption of prejudice, the Lents forfeited the argument by not making it in their opening brief. (See Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348, 356, fn. 5.) In any event, none of these statutes would create such a presumption here. A cause of action for construction defect is not analogous to a Commission cease and desist order, which is more akin to an action to enjoin activity inconsistent wi th easement rights. And even if an action to impose a penalty under Code of Civil Procedure section 340 were analogous, the Commission moved promptly to impose penalties here. The Legislature did not enact section 30821 until June 2014

— seven years after the Commission filed its first notice of intent to issue a cease and desist order and began trying to negotiate a resolution with the Lents. The Commission informed the Lents their conduct might expose them to penalti es only a few months after the L egisla ture enacted sect ion 30821 (see Stats. 2014, ch. 35, § 147), and shortly thereafter the Commission served the Lents with a new notice of intent to issue a cease and desist order and impose penalties.25

enforcement delay has resulted in the loss of significant evidence concerning the [s] tructures’ legality. ” A defendant may show prejudice for purposes of laches where delay causes “important evidence .

. . to become
unavailable.” ( City and County of San Francisco v. Pacello ( 1978 )
85 Cal.App.3d 637 , 645; see Bono v. Clark (2002) 103 Cal.App.4th 1409, 1420 [“ Death of important witnesses may constitute prejudice.” ].) But t he Lents have not shown there was such a loss of important evidence here. The Lents rely on a declaration
Warren Lent submitted to the Commission in January 2016 claiming that he had “recently attempted to communicate with the architect that developed the Property as well as the prior Property owner that oversa w the development,” but that his “attempts

. . . confirmed both these persons died within the past few years.” T he Lents’ argument , however, ignores that the
Commission first asked the Lents to remo ve the structures from
the easement area in April 2007

— nearly nine years before
Warren Lent stated he “recently” tried contacting the prior owner and the architect

. 7 There is no evidence the prior owner and the
architect were not alive and willing to discuss the history of the property with the Lents in April 2007 when the Commission sought the Lents ’ consent to remove the structures , nor is there evidence showing how long the Lents waited before attempting to

contact the prior owner and the architect

. The Lents ’ evidence did not compel the trial court to find the Commission ’s purported

7 In their opening brief the Lents assert the Commiss ion did not notify them until 2010 that the stairway was not permitted. This assertion is contradicted by the Commi ssion’s April 2007 letter stating that all “development obstructing the accessway” was unpermitted and should be removed, including the “dec k area” (on which the stairway sits).26

delay in seeking to enforce the terms of the easement caused the
Lents ’ claimed prejudice

. The Lents also suggest the Commission acquiesced in the
Lents ’ maintenance of the unpermitted structures because it
knew of the structures by 1993 or, at the latest, 2002. In contexts
other than administrative enforcement actions

, a defendant can establish laches by showing ei ther that the plaintiff’s
unreasonable delay cause d him or her prejudice or that “ th e plaintiff has acquiesced in the act about which the plaintiff complains .” ( Johnson v. City of Loma Linda, supra

, 24 Cal.4th at

p. 77 .) Even assuming l aches can bar an administrative
enforcement action where the agency acquiesce s to a defendant’s
conduct (and there is no showing of prejudice ) , the Lents’
evidence did not compel the trial court to f ind the Conservancy
and Commission acquiesced here. T he Conser vancy notified the prior owner in 1993 that the easement was closed temporarily
because the Conservancy had not retained a management agency to open the easement for public use, but that the gate violated the
terms of the easement and the owners would need to remove the gate either immediately or, at the latest, when the Conservancy was ready to develop the easement. The Lents submitted no
evidence the Commission or t he Conservancy agreed that any of
the structures could remain permanently . (See Pacific Hills
Homeowners Assn. v. Prun (2008) 160 Cal.App.4th 1557, 1565 [despite delays by a homeowners’ association in seeking to enforce setback requirements governing a ho meowner’s gate, the
homeowner could not show the association acquiesced where the association “ made its opposition to the gate known from the moment it was built, and it never changed its position or communicated to defendants it had changed its position ”] ; Wells27

Fargo Bank v. Goldzband ( 1997 ) 53 Cal.App.4th 596 , 632 [ the
California Division of Oil and Gas did not acquiesce by failing for 16 years to require a mineral rights owner to plug and abandon
oil wells

, where there was no evidence the agency agreed the

owner was not responsible for plugging and abandoning the wells] ; Tustin Community Hospital, Inc. v. Santa Ana Community Hospital Assn

. ( 1979 ) 89 Cal.App.3d 889, 899 [“ [m] ere delay on the part of the plaintiff does not necessarily
indicate an a ctual willingness that the defendant may continu e his invasion of the plaintiff’s rights ” sufficient to show acquiescence ].)

C

. The Lents Received Adequate Notice of the Penalty “[P] rocedural due process ‘ does not require any particular
form of notice

. . . .’” ( Lusardi Construction Co. v. Aubry ( 1992 )

1 Cal.4th 976 , 990; accord, Pacific Gas & Electric Co. v. Public
Utilities Com. (2015) 237 Cal.App.4th 812, 860 ( Pacific Gas ).)

“‘“ If the [administrative remedy] provides for reasonable notice

an d a reasonable opportunity to be heard, that is all that is required. ” ’” ( Jonathan Neil & Assoc., Inc. v. Jones ( 2004 )
33 Cal.4th 917 , 936, fn. 7
, brackets in original; see Pacific Gas

, at p. 860 [“ All that is required is that the notice be reasonable. ”]. )
The Lents had reasonable and sufficient notice. As the Commission correctly argues, due process does not require an administrative agency to notify an alleged violator of an exact penalty the agency intends to impose, so long as the agency provides adeq uate notice of the substance of the charge. For example, in Pacific Gas

, supra , 237 Cal.App.4th 812 a gas pipeline operator challenged a $14,350,000 penalty imposed by the Public Utilities Commission (PUC)

, which the PUC based in28

part on a provision autho rizing daily penalties of $50,000 for a continuing violation. ( Id . at pp. 832

- 833.) The court held the PUC provided adequate notice by sending the operator an order to show cause informing it of the rule it violated, of the conduct constituting the violation, and that the violation could expose the operator to penalties under an applica ble section of the Public Utilities Code, even though the PUC did not cite the section of the code permitting it to impose daily penalties for a continuing
violation . ( Id. at p. 861.) Here, the Commission in its 2015 notice of intent informed
the Lents how their conduct violated the Coastal Act and provided them with citations to all applicable statutes. And although the Commission did not indicate the specific penalty amount it would impose, it cited section 30821 and stated the
Lents’ conduct could wa rrant penalties of up to $11,250 “for each day the violation has persisted or is persisting, for up to five (5) years.” The rest was a matter of multiplication; the Lents at th at point knew all they needed to know about the potential penalty they faced, h ow the Commission would calculate it, and why. But there was more: Two weeks before the hearing the
Commission staff issued its recommended findings and order and

sent a copy to counsel for the Lents. Not only did the staff
describe in further detail how the Lents violated the Coastal Act and why their conduct warranted penalties under section 30821,
but the staff attached all of the evidence it relied on to reach its conclusions. While the Commission staff recommended a penalty
of between $800,000 and $ 1,500,000 “in an effort to be extraordinarily conservative in th[e] first unilateral imposition of administrative penalties,” it also specifically advised the Lents that the Commission could impose a penalty of “up to $8,370,000”29

and that “application of [ the statutory] factors would support the imposition of a higher end penalty in the matter close to the $8 million” or “a penalty in the middle range .

. . near $4 million

. . . .” Of course, under some circumstances an agency may violate due process by in dicating it intends to impose a certain penalty, but subsequently decid ing to impose a greater penalty

, without giving the person an additional opportunity to respond. For example, in Tafti v. County of Tulare (2011) 198 Cal.App.4th 891 the county served a notice ordering the owner of a gasoline station to pay a $138,824 penalty, but informed him he could request a hearing to challenge the order. ( Id. at pp. 894

- 895.)
The court in Tafti vacated the $1,148,200 penalty an administrative law judge subsequently imposed during the hearing, holding the county did not adequately inform the owner it might increase the penalty at the hearing. ( Id. at p p. 898

- 900.)
But the circumstances here are different . The Commission sta ff informed the Lents that its recommended penalty range of $800,000 to $1,500,000 was just that

— a recommendation

— and that the Commission could impose a penalty of up to $8,370,000. Moreover, by the time the Commission staff sent its notice of
intent to i ssue a cease and desist order and impose penalties, the Lents, th r ough counsel, had exchanged correspondence with the Commission about the unpermitted developments. T he Lents and their attorneys received adequate notice of the potential penalty.
The Lent s argue they “could not present” evidence of whether the penalty imposed by the Commission “might be ” constitutionally excessive

, a nd could not have “ fully appreciated” “the importance” of other evidence, until the c ommissioners30

bega n deliberating a potent ial penalty higher than the penalty recommended by the Commission staff . Therefore, according to the Lents, due process required the Commission to give them an opportunity to submit additional evidence after the Commission decided to impose the penalty. Not tru e. The Lents knew in September 2015, long before the Commission staff made a recommendation on the amount of a penalty, that the Commission might impose daily penalties of up to $11,250. The Lents filed a statement of defense and a supplemental st atement of defense, but never raised a constitutional objection to the potential size of the penalty. At the hearing, neither the Lents’ attorneys n or Warren Lent argued that the potential size of the penalty was constitutionally excessive or that the Lents needed additional time to submit evidence relevant to the statutory penalty factors u nder section 30820, subdivision (c) , even though the Commission had specifically informed the Lents two weeks before the hearing that the Commission cou ld impose a penalty of up to $8,170,000. In addition, even if the Commission somehow
reduced the Lents’ motivation or incentive to submit relevant evidence by recommending a penalty of “only” up to $1,500,000,
the Lents have not identified what additional evidence they
would have submitted had the Commission staff recommended a larger penalty. 8

8 In its cross

- appeal, the Commission asserts the trial court “erred by remanding based on finding that the Commission focused overly on deterrence” and “by finding that the second penalty factor, on susceptibility to remediation, did not support imposition of a penalty.” Because the trial court did not make either finding, and the Lents do not mention either finding in31 D

. The Lents Have Not Shown They Received In a dequate
Procedural Protections
The Lents contend that

, even if the y received sufficient
notice of the potential penalty, section 30821 is unconstitutional
on its f ace because it allows the Commission to impose substantial penalties without giving alleged violators sufficient procedural protections . In the alternative, the Lents contend
section 30821 is un constitutional as applied to the m

. Neither
contention has merit.

1. Applicable Law

“ Both the federal and state Constitutions compel the government to afford persons due process before depriving them of any property interest. ” ( Today’s Fresh Start, Inc. v. Los Angeles County Office of Education ( 2013 ) 57 Cal.4th 197 , 212 ( Today’s Fresh Start ) .) “‘ The essence of due process is the requirement that “ a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it. ” ’ [Citations

. ] The opportunity to be heard must be afforded ‘ at a meaningful time and in a meaningful manner. ’” ( Ibid. ) In determining “‘“t he quantum and quality of the process due in a particular situation ”’ .

. . the United States Supreme Court [ in
Mathews v. Eldridge (1976) 424 U.S. 319, 3 35 [96 S.Ct. 893,
47 L.Ed.2d 18] ( Mathews )] has rejected absolute rules in favor of balancing three considerations: ‘ First, the private interest that will be affected by the official action; second, the risk of an

their opening brief, we do not address the Commission’s assertion.32

erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government ’ s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement
would entail. ’ ” ( Today’s Fresh Start

, at pp. 212

- 213

. ) California courts “also consider a fourth factor, the ‘“dignitary i nterest in informing individuals of the nature, grounds, and consequences of the action and in enabling them to present their side of the story before a responsible government official.”’” ( Id. at p. 213.) “In other words, what would the proposed additio nal procedures add to the fairness and accuracy of the proceedi ngs actually held,
and is any such additional benefit constitutionally necessary in light of the respective interests at stake?” ( Id. at p p

. 228

- 229.)

2

. The Lents Have Not Shown Section 30821 Is
Unconstitutional on Its Face As the California Supreme Court stated in Today’s Fresh
Start

, supra , 57 Cal.4th 197, the “ standard for a facial constitutional challenge to a statute is exacting. It is also the subject of some uncertainty. ” ( Id. at p. 218.) Under one standard, courts “ will not invalidate a statute unless it ‘ pose[s] a present total and fatal conflict with applicable constitutional prohibitions. ’” ( California School Boards Assn. v. State of California ( 2019 ) 8 Cal.5th 713, 723

- 724 ; see California Teachers Assn. v. State of California (1999) 20 Cal.4th 327, 338.) Under “ ‘ a more lenient standard, ’” courts ask “‘ whether the statute is
unconstitutional “ in the generality or great majority of cases. ” ’” ( Californi a School Boards Assn.

, at p. 724; see Gerawan Farming, Inc. v. Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1118,33

1138 .) “ Either way, we consider only the text and purpose of the statute, and ‘ petitioners cannot prevail by suggesting that in
some fut ure hypothetical situation constitutional problems may

poss ibly arise as to the particular application of the statute. ’ ” ( California School Boards Assn

. , at p. 724.) T he Lents ’ facial
constitutional challenge , even under the more lenient standard,
fails.

“ [P] rocedural due process does not require a trial

- type hearing in every instance

. ” ( Oberholzer v. Commission on Judicial Performance ( 1999 ) 20 Cal.4th 371, 392

. ) “ To the contrary, ‘ [i]n general, “ something less ” than a full evidentiary hearing is sufficient prior to adverse administrative action. ’” ( Today ’ s Fresh Start

, supra , 57 Cal.4th at p. 228.) C ourts have rejected challenges to administrative proceedings that did not provide the kind of procedural protection s the Lents complain
section 30821 does not provide , including the right to call
witnesses and examine adverse witnesses (s ee , e.g., Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102

, 1122 ; James v. City of Coronado ( 2003 ) 106 Cal.App.4th 905 , 912; Stardust Mobile Estates, LLC v. City of San Buenaventura ( 2007 )
147 Cal.App.4th 1170

, 1189 ); the right to exclude unsworn testimony (see E.W.A.P., Inc. v. City of Los Angeles (1997)
56 Cal.App.4 th 310, 324 ; Mohilef v. Janovici ( 1996 )
51 Cal.App.4th 267

, 298 ) ; and the right to subpoena witnesses ( Mohilef

, at p. 303 ; cf. Cimarusti v. Superior Court ( 2000 )
79 Cal.App.4th 799 , 808

- 809 [“ [g] enerally, there is no due process right to prehearing discovery in administrative hearing case s ” ] )

. In support of their due process argument, t he Lents discuss primar il y the first Mathews factor, asserting that section 30821
allows the Commission to impose substantial penalties of up to34

$20,000,000 against property owners
, “ akin to th e deprivation of
one’s means of livelihood .” It is true that d ue process may require a proceeding that more closely resembles a t rial when , for example, “ action by the state significantly impairs an individual ’ s freedom to pursue a private occupation .” ( Oberholzer v. Commission on Judicial Performance

, supra , 20 Cal.4th at

p. 392 .) While the Commission certainly has the potential to impose significant penalties, this potential has less relevance to
the Lents ’ facial challenge because section 30821 does not require the Commission to impose a minimum penalt y if it determines a property owner has violated the Coastal Act

. (See People ex rel. Lockyer v. Fremont Life Ins. Co. ( 2002 ) 104 Cal.App.4th 50 8,
522

- 523 [statutory penalty is less likely to violate due process
where the statute gives the adjudicator discretion in determining the amount of the penalty].) To prevail on their facial challenge,
the Lents must show not only that the Commission has the potential to impose penalties large enough to violate due process
under the i nformal hea ring procedures of section 30821, but (under the standard more lenient to them) that in the generality
or the great majority of cases the Commission’s imposition of a fine would violate due process

. They did not make such a showing here

. T he C ommission h as discretion to impose a daily penalty of up to $11,250 for a violation of the Coastal Act

, but it does not have to do so, even where it determines a property

owner has violated the Coastal Act. Moreover, u nder section 30821, subdivision (h), the Commission may not impose a penalty
if the alleged violator can correct the violation within 30 days of receiving notification of the violation without undertaking additional development that requires a permit.35 Turning to the second Mathews factor , n either the Lents
nor the Commission discuss es the procedures available to alleged
violators in proceedings under section 30821. But several provisions of the Coastal Act and the regulations adopted by the
Commission are designed to ensure alleged viola tors have a meaningful opportunity to be heard

. The Commission may only impose penalties after “ a duly noticed public hearing ” on a cease
and desist or restoration order or after a hearing on a notice of
intent to record a violation of the Coastal Act

. (S ee § § 30810

- 30812, 30821, subd. (b)

. ) Prior to the hearing

, the

e xecutive d irector of the Commission must give the alleged
violator notice of the Commission’s intent to issue the order. (§ 30812, subd. (a); Cal. Code Regs ., tit. 14, §§ 131 81, subd. (a)

, 131 91 , subd. (a).) In the case of a notice of intent to issue a cease
and desist order (the procedure used here) or a restoration order,
the e xecutive d irector must attach a statement of defense form
and give the alleged violator at least 20 days to respond , with the executive director having discretion to grant additional time

. ( Cal. Code Regs., tit. 14, §§ 131 81, subd s

. (a) & (b) , 131 91
, subd s

. (a ) & (b) .) Prior to the hearing the director must prepare

a nd distribute to the alleged vio lator a written recommendation

on the proposed order that includes “ a brief summary of (A) any backgroun d to the alleged violation, (B) the allegations made by
staff in its violatio n investigation, (C) a list of all allegations
either admitted or not conte sted by the alleged violator(s), (D) all defenses and mitigating factors raised by t he alleged violator(s), and (E) any rebuttal evidence raised by the staff to matters raised in the alleged violator ’ s assertion of any defense or mitigating factor with references to supporting documents .” ( Id.

, § 13183, subd. (b)(2) ; see id ., § 13193, subd. (b)(2).) At the36

hearing the Commission staff must summarize its investigation and proposed findings , and the alleged violator may present his or her position. ( Id.

, §§ 131 85, subds. (c) & (d), 131 9 5.) The alleged violator may also ask to submit “ evidence that could not
have been set forth in a statement of defense form ,” in which case
the Commission may postpone the matter until later in the meeting or continue the matter to a subsequent meeting

. ( Id.

, §§ 131 85, subd. (d), 131 9 5 .) A ny speaker, including the alleged
violator , may submit questions to the Commission to ask other speakers. ( Id.

, §§ 13185, subd. (g), 13195 .) 9 Although not as robust as trial

- like proceeding s , these procedures guarantee that a property owner has notice of the alleged violations, an opportunity to present evidence, notice of
the recommendation by the Commission staff and supporting evidence prior to the hearing, and an opportunity to present a defense prior to and at the hearing. The Lents do not explain why these protections are insufficient in the general ity or in the great majority of cases. (See Today’s Fresh Start, supra

, 57 Cal.4th at p p. 2 29

- 230 [charter school had a meaningful opportunity to be heard where it had “ notice of the alleged deficiencies in its operations and numerous chances to respond, in writing and orally, with evidence and arguments for why its
charter should not be revoked ”].) Moreover, t o prove the existence of an unpermitted development, the Commission , as it did here, will generally rely

9 Title 14 of the California Code of Regulations does not include specific procedural requirements for hearings on a notice of intent to record a violation, but section 30812, subdivision (d)

, of the Public Resources Code requires that the owner have an opportunity to prese nt evidence at the public hearing.37

on documentary evidence

. “Unlike cases that turn upon the testimony of live witnesses, cases involving documentary
evidence do not carry a critical need to inquire into credibility via

cross

- examination

. ” ( Stardust Mobile Estates , LLC v. City of San
Buenaventura

, supra , 147 C al.App. 4th at p. 1189 ; s ee Oberholzer v. Commission on Judicial Performance

, supra , 20 Cal.4th at

p. 393 [ superior court judge was not entitled to a trial

- like evidentiary hearing to contest an advisory letter from the
Commission on J udicial P erformance because th at c ommission ’ s

“ inquiry lent itself well to proof th r ough documentary forms of
evidence ”]; cf. Manufactured Home Communities, Inc. v. County of San Luis Obispo ( 2008 ) 167 Cal.App.4th 705

, 711 [cross

examination “is especially important where findings against a party are based on an adverse witness ’ s testimony ”] .) And even
in cases where the Commiss ion’s findings may depend on the testimony of a percipient witness, the proceedings , as discussed,
allow the alleged violator to submit questions to the
commissioners to ask witnesses. (See Doe v. Regents of University of California ( 2016 ) 5 Cal.App.5th 1055 , 1084 [due process did not guarantee a student accused of sexual assault the right to cross

- examine the complainant where the student could submit written questions to the university’s disciplinary review panel, even though the panel’s fin dings we re “ likely to turn on the credibility of the complainant, and respondent face [d] very

severe consequences ”].)
Nor have the Lents shown that additional

, trial

- like procedures would significantly reduce the risk that the
Commission w ould impose a fin e that is not justified under the statutory penalty factors

. As the California Supreme Court explained in People v. Ramirez (1979) 25 Cal.3d 260

, whe n a38

decision “i s evaluative in nature ” and “ depends on consideration
of a host of intangible factors rather than on the existence of particular and contestable facts ,” formal hearing procedures aimed at “promoting accuracy and reliability

, ” like cross

examination

, are less important “ because of the difficulties inherent in challenging the subjecti ve aspects of an evaluative

type decision. ” ( I

d. at p p. 275

- 276.) Section 3082 0,
subdivision (c), lists five factors the Commission must consider before imposing the penalty. At least three of the m are or include intangible factors that do not necessari ly depend on contestable
facts : the “ nature, circumstance, extent, and gravity of the
violatio n” ; the “ sensitivity of the resource affected by the
violation ” ; and “ [w]ith respect to the violator,

. . . the degree of culpability

. . . and such other matters as justice may require. ” ( § 30820, subd

. (c)(1)

- (5).) 10 Regarding the final Mathews factor, the Commission argues it has an important interest in imposing penalties using informal procedures to efficiently resolve violations of the Coastal
Act and deter future violations. Certainly t he Commission has an
interest in efficiently remedying violations of the Coastal Act.
And although t he Commission could implement additional procedural protections for alleged violators in proceedings under
section 30821

, courts give some deference to the procedures an agency has adopted in enforcement proceedings, even if those proceedings do not include a full, trial

- like evidentiary hearing

.

10 Arguably, t he other factors the Commission must consider depend more on contestable facts, such as whether the violation is susceptible to restoration or remediation efforts, the cost to the state of bringing the action, and whether the violator has undertaken any re mediation efforts.39

A s the California Supreme Court stated in Today’s Fresh Start

, supra , 57 Cal.4th 197, “‘ “ l egislatures and agencies have significant comparative advantages over courts in identifying and measuring the many costs and benefits of alternative decisionmaking procedures. Thus, while it is imperative that courts retain the power to compel agenci es to use decisionmaking procedures that provide a constitutionally adequate level of protection

. . . , judges should be cautious in exercising that

power. In the vast bulk of circumstances, the procedures chosen by the legislature or by the agency are l ikely to be based on application of a Mathews

- type cost

- benefit test by an institution positioned better than a court to identify and quantify social costs
and benefits. ” ’” ( Id. at p. 230; s ee Marvin Lieblein, Inc. v. Shewry (2006) 137 Cal.App.4th 700, 723 [ acknowledging “ the administrative and fiscal burden of requiring a full evidentiary hearing with live testimony ”]; Mohilef v. Janovi ci

, supra , 51 Cal.App.4th at p. 301 [ “ ‘ Courts should be par ticularly cautious in deciding whether to require an agency to provide a procedure that has the potential to impose signi ficant costs, such as a right

to cross

- examine

. ’ ” ] .) 11

11 The Lents do not make any specific arguments regardin g the fourth factor California c ourts consider, the dignitary interests of the individual. The California Supreme Court has emphasized that this factor largely concerns ensuring in dividuals have the opportunity to meaningfully participate in proceedings. (See People v. Allen (2008) 44 Cal.4th 843, 869 [ defendants have a “dignitary interest in being heard ,” and the “ government has no interest in assuming a paternal role to prevent a defendant from pursuing a strategically misguided path”]; People v. Ramirez,

supra , 25 Cal.3d at p. 275 [“‘Only through [oral] participation can the individual gain a meaningful understanding of what is40 One of the Lents’ primary arguments is not based on any of
the three Mathews factors. They argue section 30821 is unconstitutional on its face because it permits the Commission to impose a “quasi

- criminal” penalty, but does not guarantee property owners and other alleged violators the “ formalities usually afforded the accu sed in the quasi

- criminal context

. ” The Lents contend that, by enacting the provision that allows the Commission to impose an administrative penalty, the Legislature intended, in part, to punish those who violate the Coastal Act. Citing Austin v. United States (1993) 509 U.S. 602 [113 S.Ct. 2801, 125 L.Ed.2d 488], the Lents argue that section 30821
therefore creates a quasi

- criminal proceeding

. 12
T he problem with the Lents’ argument is that it conflates different constitutional protections. I n Austin v. United States

, supra , 509 U.S. 602 the United States Supreme Court considered the Excessive Fines Clause of the Eighth Amendment to the

happening to her, and why it is happening. Moreover , providing the opportunity to react .

. . promote [s] the feeling that, notwithstanding the substantive result, one has been treated h umanely and with dignity by one’ s government.’”].) As d iscussed, the Commission’s procedures adequately account for the d ignitary interests of the individual.

12 The Lents also cite People v. Ruiz (2018) 4 Cal. 5th 1100

, where the California Supreme Court considered whether a criminal laboratory analysis fee and drug program were “punishment” for purposes of “Pena l Code section 182, subdivision (a)

— which provides that persons convicted of conspiring to commit a felony ‘ shall be punishable in the same manner and to the same extent as is provided for the punishment of that felony.’” ( Ruiz, at p. 1106.) Neither Ruiz nor Penal Code s ection 182 has anything to do with this case.41

United States Constitution

— not the due process balancing test
described in Mathews . (See Austin, at p. 604.) The Supreme
Court held that a “ ‘ civil sanc tion that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment ’ .

. . and, as such, is subject to the l imitations of the Eighth Amendment ’ s Excessive Fines Clause. ” ( Austin, at

pp. 621

- 622.) But even assuming a penalty imposed under section 30821 is a “fine” subject to the limitations of the Excessive Fines Clause (an issue we will discuss), that does not guarantee alleged violators all the “ formalities usually afforded the accused ”
in criminal proceedings. For example, it is the Sixth
Amendment , not the Eighth Amend m ent, that guarantees the accused in criminal prosecutions the right to confront witnesses ( one of the protections the Lents complain section 30821 does not
afford them ), and courts do not use the Excessive Fines analysis
of Austin to determine the proceedings to which the protections of
the Sixth Amendment apply

. (See, e.g., Lewis v. United States (1996) 518 U.S. 322 , 325 [116 S.Ct. 2163, 135 L.Ed.2d 590] ; Gardner v. Appellate Division of Superior Court ( 2019 ) 6 Cal.5th
998 , 1003

. ) The California Supreme Court in People v. Superior Court (Kaufman) (1974) 12 Cal.3d 421 similarly explained that the punitive nature of a penalty does not guarantee an accused the Fifth Amendment privilege against self

- incrimination. In that

case the government sought to impose civil penalties on an individual for deceptive advert ising, and the individual invoked
his Fifth Amendment privilege against self

- incrimination to avoid answering questions at a deposition, arguing the proceeding was criminal in nature because of the substantial penalties the42

individual faced. (See id. at p p. 424

- 425, 429.) In rejecting the individual’s privilege assertion , the Supreme Court explained that a civil penalty for deceptive advertising “ is unquestionably intended as a deterrent against future misconduct and does
constitute a severe punitive exaction by the state, but neither it nor the process by which it is imposed is deemed criminal in
nature for such reasons. The penalty does not include, for instance, the stigma of a criminal conviction nor does it permit such alternative punish ment as the loss of personal freedom with
which a defendant in a criminal action is threatened .” ( Id. at

p. 431 , fn. omitted .) In their reply brief the Lents assert that, “[b]y definition, a quasi

- criminal penalty is more serious than a purely civil
remed y, and that point is appropriately considered in the balancing

- factor analysis under procedural due process.” But the Legislature has characterized the penalty imposed under section 30821 as an “administrative civil penalt y” (§ 30821, subd. (a)), not a “c riminal” penalty or fine. Like the civil penalty the Supreme Court considered in Kaufma n , a penalty imposed under section 30821 does not expose the defendant to the stigma of a criminal conviction. The Lents do not explain why an individual has a greater interest in avoiding an administrative civil penalty simply because the Legislature intends the penalty (in part) to
deter future unlawful conduct.

3. The Lents Have Not Shown Secti on 3082 1 Is Unconstitutional as Applied to Them The party challenging a statute that is facially valid has “the burden of evincing facts to show that it was unconstitutional as applied.” (

Associated Homebuilders of Greater East Bay, Inc.43

v. City of Livermore ( 1961 ) 56 Cal.2d 847 , 854; accord, Coffman
S pecialties, Inc. v. Department of Transportation ( 2009 )
176 Cal.App.4th 1135 , 1145.) The Lents ’ opening brief (but not their petition) includes a one

- paragraph argument that section
30821 , even if not unconstitutional on its face, it is
unconstitutional a s applied to them because the Commission imposed a large penalty. There may b e instances where an

agency , by imposing a substantial penalty without giving the alleged viol ator a fair opportunity to present a defense, infringes

on the alleged violator’s due process rights. For example, in Manufactured Home Communities, Inc. v. County of San Luis Obispo

, supra , 167 Cal.App.4th 705 a county rent control board
determined , base d primarily on the testimony of tenants, that a mobil e home park operator violated a rent control ordinance

. ( Id

. at p. 708.) The court held the county violated the operator ’s due process rights because the county “ found the tenants ’ testimony
to be credible and ‘ never rebutted ,’” b ut “ did not allow [the operator ] to test the tenants ’ veracity or rebut the testimony through cross

- examination. ” ( I d. at p. 712

. ) The Lents, however, have not identified any specific procedural protecti on they contend was necessary to avoid an erroneous deprivation of their interests. They do not contend, for example, that they needed to cross

- examine or otherwise question

a particular witness the Commission relied on or that they
needed t o subpoena a particular witness who was unwilling to testify. The Lents simply reiterate that they were entitled to all
of the “traditional checks against arbitrary and unfair adjudication” afforded in trial

- l ike proceedings, without explaining how these additional protections , as applied to them,44

could have made any difference. Accordingly, the Lents ’ as

applied challenge fails.

E. The Lents Have Not Shown t he Commission ers Are Biased Adjudicator s The Lents next contend the c ommissioners are biased adjudicators in p r oceedings to impose penalties under section
30821. Where “ ‘ an administrative agency conducts adjudicative proceedings, the constitutional guarantee of due process of law requires a fair tribunal. ’ ” ( Today’s Fresh Start

, supra , 57 Cal.4th at p. 2 15; see Morongo Band of Mission Indians v. State Water
Resources Control Bd. (2009) 45 Cal.4th 731, 737.) Unlike California’s statutory scheme, in which “ an explicit ground for judic i al disqualification

. . . is a public p erception of partiality, that is, the appearance of bias ,” the constitutional due process guarantee of a fair tribunal “ focuses on actual bias.” ( People v.
Freeman (2010) 47 Cal.4th 993, 1001.) “ A fair tribunal is one in which the judge or other decision maker is free of bias for

or against a party. ” ( Morongo , at p. 737.) “ Violation of this due process guarantee can be demonstrated not only by proof of actual bias, but also by showing a situation ‘ in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable. ’” ( Ibid. ; see Freeman

, at p. 1001

. ) “ Claims that an adjudicator is biased are not subject to balancing under the federal Mathews or
state Mathews

- plus test. ” ( To day’s Fresh Start , at p. 216.) “ ‘ [T]he burden of establishing a disqualifying interest rests on the party making the assertion. ’ ” ( Id. at p. 221 .) Quoting (part of) section 30001.5, subdivision (c), t he Lents

argue the commissioners are biased adjudicators because the45

Coastal Act directs them to “ [ m ] aximize public access to and along the coast.” The Lents’ quotation , however, is misleadingly
selective. The complete text of s ection 30001.5 , subdivision (c),

states that the “basic goals of the state for the coastal zone”
include m aximiz ing “ public access to and along the coast a nd
maximiz [ing] public recreational opportunities in the coastal zone consistent with sound resources conservation principles and constitutionally protected rights of private property owners .” Section 30210, which the Lents also cite, states that access “shall be provid ed 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.” The Lents’ argument is also based on a false premise. Section 30001.5 does
not d irect or require the commissioners to do anything; it is a statement of the Legislature’s declarations and findings in adopting the Coastal Act. T hat commissioners “ may be sympathetic towards the objectives of the Act is not a valid
criticism.

. . . ‘ Adm inistrators who are unsympathetic toward the legislative program are very likely to thwart the democratic will; the way to translate legislative policies into action is to secure administrators whose honest opinions

— biases

— are favorable to those policies. ’ ” ( CEE E D v. California Coastal Zone Conservation
Com . (1974) 43 Cal.App.3d 306

, 328

- 329; see Today’s Fresh Start

, supra , 57 Cal.4th at p. 222 [w e “presum [e] that agency adjudicators are people of ‘“conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of
its own circumstances”’” ].)
The Lents also argue the commissioners are biased because
the y can raise revenue for the Commission by imposing penalties
under section 30821. “ [I] nstitutional financial i nterests alone,46

even without any corresponding personal benefit, may compromise due process. ” ( Today’s Fresh Start

, supra , 57 Cal.4 th at p. 217.) Here, the revenue derived from penalties imposed under section 30821 is not collected by the Commission; it is deposited into the Violation Remediation Account of the Coastal Conservancy Fund. ( See § 30821, subd. (j).) But section 30823 requires the Cons ervancy to expend funds “for carrying out the provisions” of the Coastal Act “when appropriated by the Legislature.” The Commission has “ primary responsibility for the implementation of the provisions ” of the Coastal Act (§ 30330), which includes “ manag [i ng] and budget [ing] any funds that may be appropriated, allocated, granted, or in any other way made available to the commission for expenditure

. ” (§ 30340.) Therefore, the c ommissioners know the revenue from penalties imposed under section 30821 will be us ed (if at all) to carry out the provisions of the Coastal Act, which by statute they are required to implement (although it is not clear from the record
how the Commission exercises

, and whether it delegates any of

, its executive authority). T hat indiv iduals with both executive and adjudicative functions can raise revenue by imposing penalties in adjudicative proceedings may, but does not necessarily

, show the individuals have a sufficient institutional financial interest to violate due process.
The U nited States Supreme Court has held that an official
is not an impartial adjudicator where the official has executive responsibilities

, the official can impose fines in adjudicat ive proceedings to fulfill his or her executive responsibilities , and the fines constitute a “substantial” or “major” part of the revenue of the organization the official oversees

. For example, i n Tumey v. State of Ohio (1927) 273 U.S. 510 [ 47 S.Ct. 437

, 71 L.Ed. 749 ]47

( Tumey ) the Supreme Court held tha t the mayor of a village was

not an impartial adjudicator for a defendant who was charge d with unlawfully possessing liquor because t he mayor was the “ chief executive of the village

. . . charged with the business of looking after the finances of the villag e” and “ substantial sums were expended out of the village treasury

, from the fund made up
of the fines ” imposed on defendants convicted under the applicable prohibition statutes

. ( I d

. at p p. 521, 532.) 13 The Supreme Court observed, however, that “ t he mere union of the executive power and the judicial power in [ a person ] cannot be said to violate due process of law ” and that t he “ minor penalties usually attaching to the ordinances of a village council, or to the misdemeanors in which the mayor may pronounce final judgment

. . . , do not involve any such addition to the revenue of the village as to justify the fear that the mayor wo uld be influenced in his judicial judgment by that fact. ” ( Ibid. ) Similarly, i n Ward v. Village of Monroeville (1972) 409 U.S. 57 [ 93 S.Ct. 80

, 34 L.Ed.2d
267 ] ( Ward ) the United States Supreme Court held that the mayor of a village who convicted and fine d a defendant for traffic offenses was not impartial where the mayor had “ wide executive

powers ,” “ account [ ed ] annually to the [village] council respecting village finances, ” and had “ general overall supervision of village
affairs ,” and where a “ major part of village income [wa s ] derived from the fines, forfeitures, costs, and fees imposed by him in his

mayor ’ s court .” ( I

d. at p p. 58, 60.)

13 The Supreme Court separately held the mayor was not impartial bec ause he personally received compensation if he convicted the defendant, but not if he acquitted the defendant. ( Tumey, supra , 273 U.S. at pp. 523, 531

- 532.)48 In contrast, the court in Alpha Epsilon Phi Tau Chapter Housing Ass n. v. City of Berkeley ( 9 th Cir. 1997) 1 14 F.3d 840 ( Alpha Epsilon ) held a city’s rent stabilization board that decided appeals over whether units were subject to the city’s rent control
ordinance was an im partial adjudicator , even though the board could impose fees and penalties to raise revenue . “In its executive capacity, the Board control [ l ed] the rents that landlords may charge for properties subject to the ordinance, ” administered

“ its own budget, ” and was “r esponsible for its own funding .” ( Id. at p. 842.) If the board ruled a un it was subject to rent control, the owner had to pay an annual registration fee and penalties for late payments , which went to the board’s budget

. Distinguishing Tumey and Ward , the court in Alpha Epsilon held the arrangement did not violate due process because the board did
not have a strong enough interest in adjudicat ing proceedings against landlords to “‘ reasonably warrant [ a ] fear of partisan influence on [the] judgment .’ ” ( Alpha Epsilon, at p p

. 846

- 8 47 ; see Commonwealth of the Northern Mariana Islands v. Kaipat (1996)
94 F.3d 574, 575 .) The court explained that

, although the b oard ’s
role as both “ adjudicator of coverage and executor of its finances may be a less than optimal design for due process purposes ,” the

“ amount of the budget at stake ” from the registration fees and penalties “ in any year

— at a maximum of five percent

— is rather
small. ” ( Alpha Epsilon

, at p. 847.) The court also concluded that
the board’s “ ability to recoup losses ” and “ seek funding from the City and other sources

. . . further attenuate [d its] financial
motivations ” and that the board “ regularly waive [d] penalties ”
and recently had a surplus. ( I bid. )
T he Coastal Act places some check on the Commission’s

a bility to use revenue derived from penalties imposed under49

section 30821 by requiring that the Legislature appropriate and
the Conservancy expend the funds. (See § 30823; see also § 3082 1 , subd. (i)(3) [ requiring the Commission to submit to the Legislature a report of administrative penalties imposed under section 30821].) M ore importantly, the Lents submitted no evidence in the trial court of how much money the Legislature generally appropriates or the Conservancy spends from the
Violation Remediation Account to carry out the provisions of the
Coastal Act. Nor did the Lents submit evidence of the Commission’s annual budget or of how much of its budget (if any)
the Commission generally receives from expenditures from the
Violation Remediation Account

. The Coastal Act may give the commissioners at least some incentive to impose substantial fines under section 30821, just as the budgetary system in Alpha Epsilon gave the board some incentive to recover registration fees
and impose l ate payment penalties on landlords

. (See Alpha Epsilon

, supra , 114 F.3d at p. 847.) But a bsent some additional
evidence showing how much the commissioners rely on the penalties to carry out their executive duty to implement the Coastal Act, we cannot determine whether the commissioners ’
motives are st rong enough to reasonably warrant a “ fear of partisan influence ” on the Commission’s judgment or to cause the commissioners “‘ not to h old the balance nice, clear, and true
between the state and the accused .’” ( Ibid. ; see Ward, supra , 409 U.S. at p. 60 .) T he Lents did not me e t their burden of showing the commissioners have a strong enough institutional
financial interest in the penalties they impose to create a constitutionally impermissible risk of bias. In connection with their opening brief, t he Lents ask us to take judicial notice of a memorandum of understanding (MOU)50

between the Commission and the Conservancy , titled Use an d Expenditure of Violation Remediation Account Funds. According to the Lents, the MOU shows the executive d irector of the
Commission has “final say” on how penalties deposited into the
Violation Remediation Account are used

. In their reply brief, the
Len ts ask us to take judicial notice of even more documents prepared by the Commission and the Conservancy. According to the Lents, these documents show that the Conservancy has made expenditures from the Violation Remediation Account that directly fund the Commission’s operations and that the penalty imposed on the Lents would have accounted for approximately 14 percent of the Commission’s annual budget for the 2017

- 2018 fiscal year.
We deny the requests for judicial notice of these documents

. T he Lents d id not ask the trial court to take judicial notice of any of these documents , nor do the Lents explain why they did not
submit this evidence in the trial court . (See Brosterhous v. State
Bar ( 1995 ) 12 Cal.4th 315 , 325

- 326 [“An appellate court may properly declin e to take judicial notice under Evidence Code
sections 452 and 459 of a matter which should have been presented to the trial court for its consideration in the first
instance. ”]; County of Los Angeles Department of Public Health v

. Sup erior Court ( 2021 ) 61 Cal.App.5th 478, 486, fn. 3 [same].) With respect to the MOU, e ven assuming we could take judicial notice of it as an official act of an agency (see Evid. Code, §§ 452, subd. (c) , 459)

, the Lents ask us to in terpret the MOU in a
manner that is not obvious from the face of the document

. While the MOU states the Conservancy must ask the Legislature to appropriate certain funds in the Violation R emediation A ccount for specific projects designated by the executiv e d irector of the51

Commission

, it also states that

, “[i]f the Executive Officer of the Conservancy finds the designation of the Executive Director infeasible, then the Conservancy and the Commission shall consider and agree upon an alternative proposal(s). ” I t is not
clear that , as the Lents assert
, the executive d irector has “final say” on the Conservancy’s expenditures, and t he extent of the

e xecutive d irector ’s control over expenditures is a factual question a trial court would have been in a better position to resolve had the Commission ha d an opportunity to respond

. In addition

, several of the documents the Lents ask us in their reply brief to judicially notice

, including the document purporting to describe the Commission’s annual budget, are
memorand a authored by members of the Conservancy and the
Commission

. “ W hile we may take judicial notice of

. . . official acts of state agencies [citation] , the truth of matters asserted in such documents is not subject to judicial notice .” ( Arce v. Kaiser Foundation Health Plan, Inc. ( 2010 ) 181 Cal.App.4th 471 , 482 ;

see Guarantee Forklift, Inc. v. Capacity of Texas

, Inc. ( 2017 )

11 Cal.App.5th 1066 , 1075.) T he Lents seek to use the
memorand a to prove the purported facts in those document s

— namely, that the Co nservancy in fact made various expenditures
from the Violation Remediation Account to the Commission and
that the b udget described in the memorand a is in fact the budget
the L egislature ap proved

. And e ven if we could take judicial notice of these documents, the Lents, by wait ing until their reply brief on appeal to request judicial notice

, prevented the Commission from having an adequate opportunity to respond

. (See Newhall County Water Dist. v . Castaic Lake Water Agency (2016) 243 Cal.App.4th 1430 , 1450 [“ [d] enial is particularly appropriate where judicial notice has been requested in support52

of a reply brief to which the oppos ing party has no opportunity to respond ”].) 14
The Lents also contend that statements by the individual
commissioners at the hearing show the commissioners were biased against them. “ A party must allege concrete facts that demonstrate the challenged judicial officer is contaminated with bias or prejudice. ‘ Bias and prejudice are never implied and must be established by clear averments. ’ ” ( Andrews v. Agricultural
Labor Relations Bd. ( 1981) 28 Cal.3d 781, 792.) The Lents take
issue with the fact that several commissioners recommended fines greater than $ 4
, 1 50,000

. Su c h statements, however, do not show the commissioners had a “personal bias” ( Hauser v. Ventura County Bd. of Supervisors ( 2018 ) 20 Cal.App.5th 572 , 580) against the Lents or advocated against them prior to hearing the evidence ( Nasha v. City of Los Angeles ( 2004 ) 125 Cal.App.4th
470 , 484)

. In fact, th e commissioners who suggested imposing higher fines justified their positions by discussing permissible

14 Having declined to take judicial notice of these documents, we do not reach the issue of whet her the documents show, as argued by the Lents, that the executive director of the Commission

— a person appointed by the commissioners who “serve[s] at the pleasure of his or her appointing power” (§ 30335)

— has significant input into the Conservancy’s expenditures and that those expenditures have occasionally provided funding for the Commission’s operations. If penalties imposed by the Commission directly fund the Commission’s operations without sufficient oversight and comprise a signifi cant portion of the Commission’s budget, there could be a concern the commissioners may have an impermissible institutional interest when deciding whether to impose significant penalties under section 30821 like the penalty the Commission imposed on the Le nts.53

penalty factors under section 30821, including the public’s loss of access to the beach, the many years Commission staff spent trying to remedy the violation, and the Lents’ unwillingness to cooperate

. (See § § 30820, subd. (c) (1), (4) & (5), 30821, subd. (c).) Finally, t he Lents argue the “the Commission ers and staff delighted in how they could put the money they raised to use” during the hearing. This is not an accurate description of what
occurred at the hearing. T here was a brief mention of how revenue is derived from penalties

. Commissioner Mark Vargas
asked Lisa Haage, the Commission staff ’s Chief of Enforcement, to clarify how the revenue collected from penalties is allocated

. She correctly responded

, “It goes to the V iolation Remediation
A ccount

. ” She also stated

, “ I f you had creative ideas of what to
do with $ 200,000, certainly there would be more that ’ s possible to
do with whatever am ount you impose today,” and she suggested
that “one option might be to fund the construction of this access way.” 15 While C ommissioner Vargas later repeated Haage’s suggestion, he emphasized that the Lents’ violation was “egregious” and that they were unw illing to remedy the violation.
N one of the other commissioner s discussed how the Commission
could potential ly use revenue derived from the penalty or justified imposing higher penalties on the Lents based on the potential revenue for the Commission

. Nor did the Commission discuss the potential revenue from the penalty in its adopted findings and order.

15 It is not clear what $200,000 Haage was referring to. The Commission staff did not recommend, and none of the commissioners discussed

, imposing a $200,000 fine on the Lents.54 F. The Lents Have Not Shown the Penalty Violated the
Constitutional Prohibition on Excessive Fines The Lents’ final argument is that t he $ 4,150,000 penalty
violates the federal and state constitutional prohibition on
excessive fines. It does not. Both the Eighth Amendment to the United States
Constitution and article I, section 17 of the California Constitution prohibit excessive fines. (See People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. ( 2005 ) 37 Cal.4th 707 , 727

- 728.) 16

“ ‘ [ T ]he touchstone of the constitutional inquiry under the Excessive Fines Clause is the pr inciple of proportionality ,’ ” which

courts assess by considering “ (1) the defendant ’ s culpability; (2) the relationship betwee n the harm and the penalty; (3) the penalties impos ed in similar statutes; and (4) the defendant ’ s ability to pay.” ( Ibid. ; see United States v. Bajakajian (1998)
524 U.S. 321, 334 [118 S.Ct. 2028, 141 L.Ed.2d 314] .) A fine is
constit ut ionally excessive only if it is “ grossly disproportionate to the offense [ ]

. . . .” ( People v. Braum ( 2020 ) 49 Cal.App.5th 342

, 359; see Bajakaji an , at p. 334 [“ a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproporti onal to the gravity of a defendant’s offense ”]; City and County of San
Francisco v. Sainez (2000) 77 Cal.App.4th 1302, 1322 [same]

. )
Because the Commission does not dispute that the penalty imposed on the Lents is a fine for purposes of the Excessive Fines
Clause

, we consider whether the penalty is grossly

16 The Excessive Fines Clause of the Eighth Amendment is applicable to t he state s through the Fourteenth Amendment. ( Timbs v. Indiana (2019)

___ U.S. ___, ___ [139 S.Ct. 682, 686

- 687 , 203 L.Ed.2d 11] .)55

disproportionate to the Lents’ violation under the factors in Lockyer and Baja kajian

.

“‘ We review de novo whether a fine is constitutionally
excessive and therefore violates the Eighth Amendment’s
Excessive Fines Clause. ’ [Citation s .] ‘[ F ] actual findings made by
the [ trial court ] in conducting the excessiveness inquiry, of course, must be accepted unless clearly erroneous

. ’ ” ( Sweeney v. California Reg ional Water Quality Control B d

. ( Feb. 18, 2021
, A153583 ) ___ Cal.App.5 th ___, ___ [ 2021 Cal.App.Lexis 243,

p. 81 ], as modified Mar. 18, 2021 .) We rev iew the “ underlying factual findings

. . . f

or substantial evidence, viewing the record in the light most favorable to the ruling .” ( People v. Braum,

supra , 49 Cal.App.5th at p. 360 .)

1. The Lents’ Culpability Relying on a declaration Warren Lent filed in the Commission proceeding, t he Lents contend they had “minimal culpability” because they believed in “good

- faith .

. . that they were not violating any public access provisions

. ” The trial court
found the Lents had a high degree of culpab ility be cause they willfully retained unpermitted structures and deliberately
refused to remove th os e structures for over nine years after the
Commission notified them the structures violated the Coastal
Act. The court’s finding was not clearly erroneous

. Althou gh
Warren Lent stated he did not realize the structures were unpermitted , the trial court was not required to find that

statement credible, particularly given that the Conservancy recorded its acceptance of the public easement and the
Commission notified the Lents in 2007 that the structures were not permitted and that they encroached on the public access56

easement. The C ommission sent multiple letters to the Lents or counsel for the Lents over the next several years asking them to

r emove the str uctures and explaining the Conservancy could not develop the accessway until they did so

. Still, the Lents refused

to remove the structures. Citing United States v. Goodwin (1982 ) 457 U.S. 368 [102 S.Ct. 2485, 73 L.Ed.2d 74]

, where the United States Supreme Court held that “t o punish a person because he has done what the law plainly allows him to do is a due process
violation ‘ of the most basic sort ’” ( id. at p. 372)

, the Lents argue the Commis sion impermissibly punished them for exercising their right to defend themselves in the enforcement proceeding. 17
But the trial court did not find the Lents culpab le because the y attempted to defend themselves

. The court found the Lents culpable because they continued to violate the law by refusing to remove the unpermitted structures

. And courts routinely consider a person’s unwillingness to comply with the law when considering whether a fine is excessive under the Eighth
Amendment. ( See People v. Braum

, supra , 49 Cal.App.5th at

p. 361 [landlord’s flagrant disobedience of city ordinances and court orders demonstrated his culpability]; City and County of
San Francisco v. Sainez

, supra , 77 Cal.App.4th at p. 1322 [ landlord ’s “ numerous instanc es of ignoring or disobeying orders to abate or rectify substandard housing conditions affecting the public health and safety ” demonstrated his culpability ] ;

17 The defendant in United States v. Goodwin, supra , 457 U.S. 368 moved to set aside a verdict on the ground of prosecutorial vindictiveness, contending the prosecutor indicted him on a felony charge in retaliation for not pleading guilty to a misdemeanor charge . (See id . at pp. 371

- 372.)57

Ojavan II

, supra , 54 Cal.App.4th at p. 398 [$9.5 million penalty imposed by the Commission was not excessive, in part because of
the investo r’s “ flagrant disregard of the

. . . restrictions ” on development] .)

2. The Relationship Between the Harm and the Penalty The trial court found the Conservancy could have built a public accessway if the Lents had removed the structures in the easement area, although the court stated it was not clear “ how long it would have taken” for the Conservancy to complete the

accessway. Again, t he trial court ’s finding was not clearly

erroneous . The Conservancy hired contractors in 2008 to complete a survey of the property and in 2010 to design conceptual plans. The executive officer of the Conservancy
submitted a letter to the Commis sion stating the Conservancy’s draft feasibility study showed no serious physical impediments

, other than the Lents’ refusal to remove the structures, to the development of public access improvements. And b oth the
executive officer and another member of t he Conservancy
confirmed this during the hearing

. Even if it was uncertain how long it would take the Conservancy to build the accessway, there

wa s substantial evidence the Lents delayed the Conservancy’s efforts, which in turn delayed the public’s abilit y to use the
easement to access the beach. 18
And t he re was other evidence showing the harm the Lents caused was proportional to the penalty. It was undisputed that

18 C iting a letter written by an engineer and submitted by the Lents in support of their defense during the Commission58

t he re is no public access to the beach near the Lents’ property ;
t he beach is part of a three

- mile stretch of the coast with no public access, with the closest public access point a mile away
from the Lents’ property. T here is no question the state places significant value on the public’s right to access the coast.

“ [T] i delands

— lands betwee n the lines of m ean high tide and
mean low tide

— are owned by the public, ” which the state holds
“in trust for the people for their use

. . . .” ( State of California v. Superior Court (Lyon) ( 1981 ) 29 Cal.3d 210 , 214.) Both t he
California Constitution and Coastal Act protect the public’s right
to access the coast (see Cal. Const., art. X, §§ 3, 4 ; § 30210 ), and the Coastal Act specifically recognizes the importance of the public’s ability to use oceanfront land for recreation (see § § 3 0220 [ “C oastal areas suited for water

- oriented recreational activities that cannot readily be provided at inland water areas shall be protected for such uses .”]; 3022 1 [“ Oceanfront land suitable for recreational use shall be protected for recreati onal use and development unless

. . . already adequately provided for in the

area. ”] )

. That the harm caused by the Lents ’ obstructing public

access to the coast may be difficult to quantify does not show the penalty is not proportional to the Lents’ violat ion. For example,
in Ojavan II

, supra , 54 Cal.App.4th 373 the Commission issued a

proceeding , the L ents contend that “the ha rm from any delay is uncertain.” The trial court was not required to find the statements by the Lents’ engineer credible, particularly because they conflicted with t he Conservan cy’s evidence. And even if it is not “certain” the Conservancy can eventually build an accessway in the easement area, there is substantial evidence the Lents at least delayed when the Conservancy can finally determine whether building an accessway is fea sible.59

permit requiring an owner of 77 lots to recombine them into two lots. (See id. at p. 378.) Despite the permit, a n investor purchased 54 of the 77 lots and attempted to resell them as individual lots. ( Id. at p. 379.) The court in Ojavan II held that the trial court’s $9.5 million penalty against the investor was not disproportiona te to the harm, even though the investor caused

“ ‘ very little or no physical damage to the properties involved

, ’ ”
because the investor “ engaged in activities contrary to the
Coastal Act ’ s goal of limiting development. ” ( Ojavan II, at

p p. 387, 397

- 398.) Similarly , even i f the Lents caused no physical damage to the prop erty by maintaining the structures, the Lents ’ conduct was inconsistent with the Coastal Act’s goal of ensuring public access to the coast and for many years impeded the Conservancy’s efforts to provide that access.

3. Penalties Imposed in Similar Statut es Citing various provisions of the Penal Code and the Fish and Game Code (see Pen. Code

, §§ 374.7 , subd. (b) [$250 to $3,000 fine for dumping waste matter into a body of water],
374.8 , subd. (b) [$50 to $10,000 fine for knowingly causing a hazardous substance to be deposited into or on a road, another person’s land, or waters of the state]; Fish & G

. Code

, §§ 12007 [$5,000 maximum fine for violating a streambed alteration agreement], 12008 [ $5,000 maximum fine f or violating certain provisions regarding endangered or protected species ]), t he Lents contend that the penalty the Commission imposed under section
30821 is disproportionate to the penalty the state may impose for
other violations that cause environmental harm. But the statutes the Lents cite impose fines for individual acts

, not for ongoing violations like maintaining an unpermitted development60

that violates the Coastal Act’s public access provisions. Moreover, there are plenty of statutes that impose daily penalties
for activity that can cause environmental harm

— including undertaking activity without obtaining a required permit

— some of which impose maximum penalties higher than the maximum penalty the Commission can impose under section 30821. (See

, e.g., Fish & G. Code, §§ 5901, 12025.1 [ daily penalty of up to $8,000 for constructing or maintaining a device in a str eam that impedes passing of fish]; Gov

. Code, §§ 66632, 66641.5, subd. (b) [$100 to $10,000 daily penalty for knowingly plac ing fil l,

extract ing materials, or mak ing any substantial change in use of any wate r, land

, or structure in the San Francisco Bay without obtaining a permit]; Health & Saf. Code, § 25191 [daily penalty of up to $25,000 for the first violation, and $50,000 for the second violation, of provisions relat ing to the handling of hazardous

waste ] ; Pub. Resources Code

, § § 29610 [$50 to $5000 daily penalty for “i ntentionally and knowingly commenc [ing] any development in violation of ” the Suisun Marsh Preservation Act

, § 29000 et seq. ] , 45023 [$10,000 daily penalty for violating provisions of the Integrated Waste Management Act , § 40050 et

seq. ] ; Wat. Code, §§ 13265, subd. (d) [regional water board may impose a daily penalty of up to $5,000, and the sup erior court may impose a daily penalty of up to $25,000, for discharg ing hazardous waste], 133 85, subd. (b)(1) [ daily civil liability of up to $25,000 for violations of the federal Clean Water Act , 33 U.S.C. § 1251 et seq. ]

. ) And courts have rejected excessive fine challenges to civil penalties of several million dollars imposed under statutes authorizing daily penalties like the daily penalty the Commission imposed her e . (See Pacific Gas

, supra , 237 Cal.App.4th at pp. 866

- 867 [$14.35 million penalty against a61

gas pipeline operator for failing to report information]; People v. Braum

, supra , 49 Cal.App.5th at p. 359 [$5,967,500 penalty against a landlord who leased property to marijuana dispensary operator in violation of local ordinance]; Ojavan II

, supra , 54 Cal.App.4th at p. 398 [$9.5 million penalty against an investor for violations of Coastal Act].)

4. Ability T

o Pay Although the defendant’s ability to pay is a proper factor
for the court to consider when analyzing whether a penalty
violates the federal and state constitutional prohibition s on excessive fines, the defendant has the burden of proving his or her inability to pay. (See People v. Cowan ( 2020 ) 47 Cal.App.5th
32 , 49

- 50 , review granted June 17, 2020 , S261952 ; People v. Kopp (2019) 38 Cal.App.5th 47, 96 , review granted Nov. 13, 2019, S257844 ; cf. People v. First F ederal Credit Corp. (2002)
104 Cal.App .4th 721

, 728

- 729 [ to obtain penalties for violations of
the u nfair c ompetition l aw and false advertising law, the government was “ not required to present evidence of defendants ’
wealth ” where the relevant statute s did not state that the defendant’s ability to pay was “essential for determining the penalty”] .) During the Commission proceedings, the Lents never argued or submitted any evidence they could not pay a fine of up to $8,400,000, even though Commission staff notified them prior

t o the hearing the Commission could impose such a fine. T he
trial court stated in its order on the Lents’ petition that the Lents ( again ) did not contest their ability to pay the penalty , and the Lents make no showing on appeal they submitted any such
evid ence in the trial court. T he Lents simply state, without explanation, they “ are prepared ” to present evidence on “ their62

inability to pay a substantial fine ” if the matter is remanded

. The Lents fail ed to meet their burden.

DISPOSITION

The judgment is reversed

. The superior court is directed to vacate its order granting the petition in part and to enter a new order denying the petition. The parties’ motions for judicial
notice are denied. Th e Commission is to recover its costs on

appe al.

SEGAL

, J.

We concur:

PERLUSS

, P. J.

FEUER

, J.