Filed 4/16/21 (unmodified 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 otherwise 

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, replace 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 their 

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.
Filed 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.,

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)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. James C. Chalfant, Judge. Reversed with 

directions.

Pacific Legal Foundation, Damien M. Schiff, Joshua P. 

Thompson, and Jeremy Talcott; FisherBroyles and Paul J. 

Beard II for Plaintiffs, Appellants, and Cross-respondents. 
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 Amicus 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 Crossrespondents.

Chris Scheuring for California Farm Bureau Federation as 

Amicus Curiae on behalf of Plaintiffs, Appellants, and Crossrespondents.

Xavier Becerra, Attorney General, Daniel A. Olivas, Senior 

Assistant Attorney General, Christina Bull Arndt and David 

Edsall Jr., Deputy Attorneys General, for Defendant, 

Respondent, and Cross-appellant.

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 house sits on beachfront property in Malibu. A five-footwide 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 enforces 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 public accessway 

over the easement area. The Lents refused. 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 

30821, 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 refused 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 $800,000 and $1,500,000 (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 $8,370,000. At the hearing the Commission 

issued the cease and desist order and imposed a penalty of 

$4,185,000. 

The Lents filed a petition for writ of mandate asking the

trial court 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 

penalties 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 

penalty 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 penalty. 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. Therefore, 

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 supported the 

Commission’s decision to issue the cease and desist order. We 

also conclude the Commission 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 Commission 
5

had previously advised the Lents it could impose a penalty of up 

to $11,250 per day and the Commission staff specifically advised

the Lents that the Commission could impose a penalty of up to 

$8,370,000. Therefore, we reverse the trial court’s judgment

remanding the matter to the Commission. 

On the Lents’ appeal of the penalty, we conclude the Lents 

failed to show section 30821 is unconstitutional, either on its face 

or as applied to them. 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 coastal development permit 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 eastern 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 certificate of acceptance. A storm drainpipe, owned by 

the County of Los Angeles, runs across the easement area.

Notwithstanding 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 sand 
6

through a (different) 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 

view of the easement area from the north (i.e., PCH):
7

B. The Commission Attempts To Obtain the Lents’ 

Consent To 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 structures 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.

Because 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 survey of the easement area to assess the feasibility of 

building an accessway, and in 2010 an architectural firm 
8

completed conceptual plans for the accessway. Later that year, 

representatives from the Commission, the Conservancy, and the 

architectural 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 the Lents to remove 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. The Commission Issues a Cease and Desist 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 statement of defense. 

Among other arguments, the Lents contended the Commission 

had approved the structures in the easement area, the doctrine of 

laches barred the Commission from requiring the Lents to

remove the stairway, and the Commission could not impose

penalties on the Lents because the Lents had not built the 

allegedly unpermitted 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 their 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 marketed 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 the 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 the Lents presented a

defense, and Warren 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 both the 

executive officer and another member of the Conservancy stated

that the Conservancy’s engineers had determined it was feasible 

to build an accessway in the easement area.

After the presentations, the commissioners deliberated. 

Several commissioners stated the Lents’ conduct was 
10

particularly egregious and warranted a penalty higher than the 

staff’s recommendation. Ultimately, the Commission voted 

unanimously to issue the cease and desist order requiring the 

Lents to remove the structures in the easement area and to 

impose a penalty of $4,185,000. 

D. The 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 writ 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” the 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 

accessway.” 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 the 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 argue 

against the Commission’s . . . reasoning for imposition of a 
11

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 evidence 

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.” 

The trial court entered judgment ordering the Commission 

to set aside the penalty, 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 appealed, and the Commission timely crossappealed. 

DISCUSSION

A. The Commission Did Not Abuse Its Discretion in 

Issuing the Cease and Desist 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 Procedure] Section 1094.5 . . . .” (§ 30801; see 

SLPR, L.L.C. v. San Diego Unified Port Dist. (2020) 

49 Cal.App.5th 284, 321 [“‘administrative mandamus is the 

“proper and sole remedy” for challenging or seeking review of’ a 

[Commission] decision”].) “[T]he trial court reviews the 
12

commission’s decision to determine whether the commission 

‘proceeded without, or in excess of, jurisdiction; whether there 

was a fair trial; and whether there was any prejudicial abuse of 

discretion. Abuse of discretion is established if the [Commission] 

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 214, 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.) “‘Our scope of review 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 30600 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 “determines that any person or 

governmental agency has undertaken, or is threatening to 

undertake, any activity that (1) requires a permit from the 

commission without securing a permit or (2) is inconsistent with 

any permit previously issued by the commission . . . .” The Lents 

argue an owner who merely purchases property containing 
13

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 Lents’ interpretation of 

section 30600. Although the statute refers to the person “wishing 

to perform or undertake” development, the requirement to obtain 

a permit for any development in the Coastal Zone necessarily 

extends to subsequent owners of the property. “It 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 limitations and restrictions which 

bound” 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 deedrestricted lots, any right to a property interest greater than that 

conveyed by [the] predecessors in interest,” 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 period 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. (2004) 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 challenge
14

coastal development permits ran from the date the Commission 

issued the permits, not the date the successors purportedly 

violated the permit restrictions, because the successors were

“bound by what their grantee had to convey”].) Therefore, an 

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 

Investors, 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 

thousand 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 permits under section 

30600, but a subsequent purchaser does not. Developers could 

avoid complying with the Coastal Act by simply selling the 

property before the Commission discovers 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 policies 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]”]; see 
15

also § 30009 [the Coastal Act “shall 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 the McAteer-Petris 

Act (Gov. Code, § 66600 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 provision nearly 

identical to the cease and desist provision of the Coastal Act: The 

SFBCDC may issue a cease and desist order if it “determines that 

a person or governmental agency has undertaken, or is 

threatening to undertake, an activity that (1) requires a permit 

from the commission without 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 pp. 609-610.) The court in Leslie Salt reversed the trial 

court’s order issuing a writ of mandate to set aside the order, 

holding 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 refers 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 30811, however, does not say this. 

Section 30811 does not specify against whom the Commission 

may issue a restoration order, nor does it distinguish between 

developers and “mere” property owners. Contrary to the Lents’ 

assertion, nothing in the statutory scheme suggests that section 

30810 applies only to persons who build an unpermitted 

development and that section 30811 applies more broadly to 

persons who build the development and to subsequent property 

owners.

Moreover, although 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 contained 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 access 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) [“as such term is 

used in section 30811 . . . ‘[r]esource’ means any resource which is 

afforded protection under the policies of Chapter 3 of the Coastal 

Act, including but not limited to public access”].)

3. Substantial Evidence Supported the 

Commission’s Cease and Desist Order

In its cease and desist order, the 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. There 

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 “what 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 “development” 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 any “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. (2007) 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 beach was closed, covering a sign that advertised public 

access, and stationing 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 supported 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 the western side of the house—the side that does not include 

the easement area—providing access from the house to the beach. 

In 1980 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 supported 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, the Lents rely on two sets 

of conceptual floorplans to argue the Commission impliedly

approved the deck and staircase in the easement area. The Lents 

contend the first set, which the prior owners submitted to the 

County of Los Angeles in 1980, depicts 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 encroached

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 set of plans, which the prior owner did submit 

to the Commission, shows an exterior door on the northeast 

corner of the building adjacent to the easement area. According 

to the Lents, the 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. This 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 the 
21

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 other 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 1980 amendment, 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 [“‘it 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 it”].) And even if the Commission 

occasionally permitted stairways and decks that were not 

depicted on conceptual plans, such action would have little 

bearing on whether the Commission approved the stairway and 

deck here. The owners constructed the stairway and deck in a

public-access easement area, and the architects did not state they 

generally omitted depictions of stairways and decks in publicaccess easement areas. In light of the numerous conceptual 

plans submitted to the Commission that did not depict these

structures (but depicted similar structures elsewhere on the 

property), the permit condition requiring the owner to dedicate 

an easement for public access, and the fact the structures 
22

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 Desist 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 

agency . . . 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 537, 568; 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 Feduniak v. California Coastal 

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

244 Cal.App.4th 267, 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 substantial 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. Tavangarian (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 the 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-Shirazi (2020) 45 Cal.App.5th 134, 

142; see Magic Kitchen LLC v. Good Things Internat., Ltd. (2007) 

153 Cal.App.4th 1144, 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 of 
24

such statute of limitations has 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. 

State Water Resources Control Bd. (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 creates 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 with 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 penalties only a few months after the Legislature 

enacted section 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 the 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 oversaw the development,” but that his 

“attempts . . . confirmed both these persons died within the past 

few years.” The Lents’ argument, however, ignores that the 

Commission first asked the Lents to remove 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 Commission did 

not notify them until 2010 that the stairway was not permitted. 

This assertion is contradicted by the Commission’s April 2007 

letter stating that all “development obstructing the accessway” 

was unpermitted and should be removed, including the “deck 

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 either that the plaintiff’s 

unreasonable delay caused him or her prejudice or that “the 

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 laches can bar an administrative 

enforcement action where the agency acquiesces to a defendant’s

conduct (and there is no showing of prejudice), the Lents’ 

evidence did not compel the trial court to find the Conservancy 

and Commission acquiesced here. The Conservancy 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 the 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 homeowner’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”]; Wells 
27

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 actual willingness that the defendant may continue 

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 

and 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 adequate 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 in 
28

part on a provision authorizing 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 applicable 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 warrant 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 that

point knew all they needed to know about the potential penalty 

they faced, how 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 indicating it intends to impose a certain penalty, 

but subsequently deciding 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 pp. 898-900.) 

But the circumstances here are different. The Commission staff 

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 issue a cease and desist order and impose penalties, the 

Lents, through counsel, had exchanged correspondence with the 

Commission about the unpermitted developments. The Lents 

and their attorneys received adequate notice of the potential 

penalty.

The Lents argue they “could not present” evidence of 

whether the penalty imposed by the Commission “might be”

constitutionally excessive, and could not have “fully appreciated” 

“the importance” of other evidence, until the commissioners 
30

began deliberating a potential 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 true. 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 statement 

of defense, but never raised a constitutional objection to the 

potential size of the penalty. At the hearing, neither the Lents’ 

attorneys nor 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 under section 30820, subdivision (c), even though 

the Commission had specifically informed the Lents two weeks 

before the hearing that the Commission could 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 in 
31

D. The Lents Have Not Shown They Received Inadequate 

Procedural Protections

The Lents contend that, even if they received sufficient 

notice of the potential penalty, section 30821 is unconstitutional 

on its face 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 unconstitutional as applied to them. 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 “‘“the 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, 335 [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 interest 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 additional procedures 

add to the fairness and accuracy of the proceedings actually held, 

and is any such additional benefit constitutionally necessary in 

light of the respective interests at stake?” (Id. at pp. 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.”’” 

(California 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 future hypothetical situation constitutional problems may 

possibly arise as to the particular application of the statute.’” 

(California School Boards Assn., at p. 724.) The 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.) Courts have 

rejected challenges to administrative proceedings that did not 

provide the kind of procedural protections the Lents complain 

section 30821 does not provide, including the right to call 

witnesses and examine adverse witnesses (see, 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.4th 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 cases”]).

In support of their due process argument, the Lents discuss 

primarily the first Mathews factor, asserting that section 30821 

allows the Commission to impose substantial penalties of up to 
34

$20,000,000 against property owners, “akin to the deprivation of 

one’s means of livelihood.” It is true that due process may 

require a proceeding that more closely resembles a trial 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 penalty 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 508, 

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 informal hearing 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. The Commission has 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, under 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, neither the Lents 

nor the Commission discusses 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 violators 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. (See 

§§ 30810-30812, 30821, subd. (b).) Prior to the hearing, the 

executive director 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, §§ 13181, subd. (a), 

13191, 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 executive director 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, §§ 13181, subds. (a) & (b), 13191, 

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

and distribute to the alleged violator a written recommendation

on the proposed order that includes “a brief summary of (A) any 

background to the alleged violation, (B) the allegations made by 

staff in its violation investigation, (C) a list of all allegations 

either admitted or not contested by the alleged violator(s), (D) all 

defenses and mitigating factors raised by the 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 the 
36

hearing the Commission staff must summarize its investigation 

and proposed findings, and the alleged violator may present his 

or her position. (Id., §§ 13185, subds. (c) & (d), 13195.) 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.,

§§ 13185, subd. (d), 13195.) Any 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 proceedings, 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 generality or in the 

great majority of cases. (See Today’s Fresh Start, supra, 

57 Cal.4th at pp. 229-230 [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, to 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 present 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 Cal.App.4th at p. 1189; see 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 Judicial Performance because that commission’s 

“inquiry lent itself well to proof through documentary forms of 

evidence”]; cf. Manufactured Home Communities, Inc. v. County 

of San Luis Obispo (2008) 167 Cal.App.4th 705, 711 [crossexamination “is especially important where findings against a 

party are based on an adverse witness’s testimony”].) And even 

in cases where the Commission’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 findings were “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 would impose a fine that is not justified under the 

statutory penalty factors. As the California Supreme Court 

explained in People v. Ramirez (1979) 25 Cal.3d 260, when a 
38

decision “is 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 crossexamination, are less important “because of the difficulties 

inherent in challenging the subjective aspects of an evaluativetype decision.” (Id. at pp. 275-276.) Section 30820, 

subdivision (c), lists five factors the Commission must consider 

before imposing the penalty. At least three of them are or include

intangible factors that do not necessarily depend on contestable 

facts: the “nature, circumstance, extent, and gravity of the 

violation”; 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 the Commission has an 

interest in efficiently remedying violations of the Coastal Act. 

And although the 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, the 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 remediation efforts.
39

As the California Supreme Court stated in Today’s Fresh Start, 

supra, 57 Cal.4th 197, “‘“legislatures 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 agencies 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 likely 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; see 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. Janovici, supra, 

51 Cal.App.4th at p. 301 [“‘Courts should be particularly cautious 

in deciding whether to require an agency to provide a procedure 

that has the potential to impose significant costs, such as a right 

to cross-examine.’”].)11

11 The Lents do not make any specific arguments regarding 

the fourth factor California courts consider, the dignitary 

interests of the individual. The California Supreme Court has 

emphasized that this factor largely concerns ensuring individuals 

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 is 
40

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 accused 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

 

The problem with the Lents’ argument is that it conflates 

different constitutional protections. In 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 

humanely and with dignity by one’s government.’”].) As 

discussed, the Commission’s procedures adequately account for 

the dignitary 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 “Penal 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 section 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 sanction 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 limitations 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 Amendment, 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 advertising, 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 the 
42

individual faced. (See id. at pp. 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 punishment 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 

remedy, 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 penalty” (§ 30821, subd. (a)), 

not a “criminal” penalty or fine. Like the civil penalty the 

Supreme Court considered in Kaufman, 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 Section 30821 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 

Specialties, 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 as applied to them because the Commission 

imposed a large penalty. There may be instances where an 

agency, by imposing a substantial penalty without giving the 

alleged violator 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, based primarily on the testimony of tenants, that a 

mobilehome 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,’” but “did not allow [the 

operator] to test the tenants’ veracity or rebut the testimony 

through cross-examination.” (Id. at p. 712.)

The Lents, however, have not identified any specific 

procedural protection 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 to 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-like proceedings, without

explaining how these additional protections, as applied to them,
44

could have made any difference. Accordingly, the Lents’ asapplied challenge fails.

E. The Lents Have Not Shown the Commissioners Are

Biased Adjudicators

The Lents next contend the commissioners are biased 

adjudicators in proceedings 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. 215; 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 

judicial disqualification . . . is a public perception 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.” (Today’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), the Lents 

argue the commissioners are biased adjudicators because the 
45

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 section 30001.5, subdivision (c),

states that the “basic goals of the state for the coastal zone” 

include maximizing “public access to and along the coast and 

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 provided for all the people consistent with public safety needs 

and the need to protect public rights, rights of private property 

owners, and natural resource areas from overuse.” The Lents’ 

argument is also based on a false premise. Section 30001.5 does 

not direct or require the commissioners to do anything; it is a 

statement of the Legislature’s declarations and findings in

adopting the Coastal Act. That commissioners “may be 

sympathetic towards the objectives of the Act is not a valid 

criticism. . . . ‘Administrators 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.’” (CEEED 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 [we “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 

they can raise revenue for the Commission by imposing penalties 

under section 30821. “[I]nstitutional financial interests alone, 
46

even without any corresponding personal benefit, may 

compromise due process.” (Today’s Fresh Start, supra, 57 Cal.4th

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 Conservancy 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[ing] 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 commissioners know the revenue from penalties 

imposed under section 30821 will be used (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). That individuals 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 United 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 adjudicative 

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, in Tumey v. 

State of Ohio (1927) 273 U.S. 510 [47 S.Ct. 437, 71 L.Ed. 749] 
47

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

not an impartial adjudicator for a defendant who was charged

with unlawfully possessing liquor because the mayor was 

the “chief executive of the village . . . charged with the business of 

looking after the finances of the village” 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. (Id. at pp. 521, 532.)13 The 

Supreme Court observed, however, that “the mere union of the 

executive power and the judicial power in [a person] cannot be 

said to violate due process of law” and that the “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 would be influenced in his 

judicial judgment by that fact.” (Ibid.) Similarly, in 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 fined 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 [was] derived 

from the fines, forfeitures, costs, and fees imposed by him in his 

mayor’s court.” (Id. at pp. 58, 60.) 

13 The Supreme Court separately held the mayor was not 

impartial because 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 Assn. v. City of Berkeley (9th Cir. 1997) 114 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 impartial adjudicator, even though the board 

could impose fees and penalties to raise revenue. “In its 

executive capacity, the Board control[led] the rents that landlords 

may charge for properties subject to the ordinance,” administered 

“its own budget,” and was “responsible for its own funding.” (Id. 

at p. 842.) If the board ruled a unit 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 adjudicating proceedings 

against landlords to “‘reasonably warrant [a] fear of partisan 

influence on [the] judgment.’” (Alpha Epsilon, at pp. 846-847; see 

Commonwealth of the Northern Mariana Islands v. Kaipat (1996)

94 F.3d 574, 575.) The court explained that, although the board’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. (Ibid.) 

The Coastal Act places some check on the Commission’s 

ability to use revenue derived from penalties imposed under 
49

section 30821 by requiring that the Legislature appropriate and 

the Conservancy expend the funds. (See § 30823; see also 

§ 30821, subd. (i)(3) [requiring the Commission to submit to the 

Legislature a report of administrative penalties imposed under 

section 30821].) More 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 late payment penalties on landlords. (See Alpha 

Epsilon, supra, 114 F.3d at p. 847.) But absent 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 strong enough to reasonably warrant a “fear of 

partisan influence” on the Commission’s judgment or to cause the 

commissioners “‘not to hold the balance nice, clear, and true 

between the state and the accused.’” (Ibid.; see Ward, supra, 

409 U.S. at p. 60.) The Lents did not meet 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, the Lents ask us to 

take judicial notice of a memorandum of understanding (MOU)
50

between the Commission and the Conservancy, titled Use and 

Expenditure of Violation Remediation Account Funds. According 

to the Lents, the MOU shows the executive director of the 

Commission has “final say” on how penalties deposited into the 

Violation Remediation Account are used. In their reply brief, the 

Lents 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. 

The Lents did 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 decline 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. 

Superior Court (2021) 61 Cal.App.5th 478, 486, fn. 3 [same].) 

With respect to the MOU, even 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 interpret 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 Remediation Account 

for specific projects designated by the executive director of the 
51

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).” It is not 

clear that, as the Lents assert, the executive director has “final 

say” on the Conservancy’s expenditures, and the extent of the 

executive director’s control over expenditures is a factual 

question a trial court would have been in a better position to 

resolve had the Commission had 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 

memoranda authored by members of the Conservancy and the 

Commission. “While 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.) The Lents seek to use the 

memoranda to prove the purported facts in those documents—

namely, that the Conservancy in fact made various expenditures 

from the Violation Remediation Account to the Commission and 

that the budget described in the memoranda is in fact the budget 

the Legislature approved. And even if we could take judicial 

notice of these documents, the Lents, by waiting 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 support 
52

of a reply brief to which the opposing 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 $4,150,000. Such 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, the 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 whether 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 significant 

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 

Lents.
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, the Lents argue the “the Commissioners 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. There 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 Violation Remediation 

Account.” She also stated, “If you had creative ideas of what to 

do with $200,000, certainly there would be more that’s possible to 

do with whatever amount you impose today,” and she suggested 

that “one option might be to fund the construction of this access 

way.”15 While Commissioner Vargas later repeated Haage’s 

suggestion, he emphasized that the Lents’ violation was 

“egregious” and that they were unwilling to remedy the violation. 

None of the other commissioners discussed how the Commission 

could potentially 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 the $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 principle of proportionality,’” which 

courts assess by considering “(1) the defendant’s culpability; 

(2) the relationship between the harm and the penalty; (3) the 

penalties imposed 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 

constitutionally excessive only if it is “grossly disproportionate to

the offense[ ] . . . .” (People v. Braum (2020) 49 Cal.App.5th 342, 

359; see Bajakajian, at p. 334 [“a punitive forfeiture violates the 

Excessive Fines Clause if it is grossly disproportional 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 the states 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 Bajakajian.

“‘We review de novo whether a fine is constitutionally 

excessive and therefore violates the Eighth Amendment’s 

Excessive Fines Clause.’ [Citations.] ‘[F]actual findings made by 

the [trial court] in conducting the excessiveness inquiry, of 

course, must be accepted unless clearly erroneous.’” (Sweeney v. 

California Regional Water Quality Control Bd. (Feb. 18, 2021, 

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

p. 81], as modified Mar. 18, 2021.) We review the “underlying 

factual findings . . . for 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, the 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 culpability because they 

willfully retained unpermitted structures and deliberately 

refused to remove those structures for over nine years after the 

Commission notified them the structures violated the Coastal 

Act. The court’s finding was not clearly erroneous. Although 

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 access 
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easement. The Commission sent multiple letters to the Lents or 

counsel for the Lents over the next several years asking them to 

remove the structures 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 “to 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 Commission impermissibly punished them for exercising 

their right to defend themselves in the enforcement proceeding.17 

But the trial court did not find the Lents culpable because they

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 instances 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 investor’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, the 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 Commission 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 both the 

executive officer and another member of the Conservancy 

confirmed this during the hearing. Even if it was uncertain how 

long it would take the Conservancy to build the accessway, there 

was substantial evidence the Lents delayed the Conservancy’s 

efforts, which in turn delayed the public’s ability to use the 

easement to access the beach.18

And there was other evidence showing the harm the Lents 

caused was proportional to the penalty. It was undisputed that 

18 Citing a letter written by an engineer and submitted by the 

Lents in support of their defense during the Commission 
58

there is no public access to the beach near the Lents’ property; 

the 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. There is no question the state places 

significant value on the public’s right to access the coast. 

“[T]idelands—lands between the lines of mean 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 the 

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 §§ 30220 

[“Coastal areas suited for water-oriented recreational activities 

that cannot readily be provided at inland water areas shall be 

protected for such uses.”]; 30221 [“Oceanfront land suitable for 

recreational use shall be protected for recreational 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’ violation. For example, 

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

proceeding, the Lents contend that “the harm 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 the Conservancy’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 feasible. 
59

permit requiring an owner of 77 lots to recombine them into two

lots. (See id. at p. 378.) Despite the permit, an 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 

disproportionate 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 

pp. 387, 397-398.) Similarly, even if the Lents caused no physical 

damage to the property 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 Statutes

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 for violating certain

provisions regarding endangered or protected species]), the 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 development 
60

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 stream that 

impedes passing of fish]; Gov. Code, §§ 66632, 66641.5, subd. (b) 

[$100 to $10,000 daily penalty for knowingly placing fill, 

extracting materials, or making any substantial change in use of 

any water, 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 relating to the handling of hazardous 

waste]; Pub. Resources Code, §§ 29610 [$50 to $5000 daily 

penalty for “intentionally 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 superior court 

may impose a daily penalty of up to $25,000, for discharging

hazardous waste], 13385, 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 here. (See Pacific Gas, supra, 

237 Cal.App.4th at pp. 866-867 [$14.35 million penalty against a 
61

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 To 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 prohibitions 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 Federal Credit Corp. (2002) 

104 Cal.App.4th 721, 728-729 [to obtain penalties for violations of 

the unfair competition law and false advertising law, the 

government was “not required to present evidence of defendants’

wealth” where the relevant statutes 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 

to the hearing the Commission could impose such a fine. The 

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 

evidence in the trial court. The Lents simply state, without 

explanation, they “are prepared” to present evidence on “their 
62

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

The Lents failed 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. The Commission is to recover its costs on 

appeal.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.