Filed 3/18/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

SANDRA BOWMAN, as Cotrustee, etc., et al.,
Plaintiffs and Appellants,

v.
CALIFORNIA COASTAL COMMISSION,
Defendant and Respondent. 2d Civil No. B243015 (Super. Ct. No. CV100611) (San Luis Obispo County)

The California Coastal Commission (Commission) grants a party a development permit. After the time for appe al has passed, the party may not collaterally attack the permit. A collateral attack is not a substitute for an appeal. (Pub. Resources Code, § 30600.) The County of San Luis Obispo (the County) issued a co astal development permit on condition the landowner dedicate a lateral public access easement across the oceanfront portion of the property. The landowner did not app eal the condition, but later, after the permit became final, requested re moval of the easement condition in a second coastal development permit app lication to the County. The County allowed the condition to be removed. Other parties appealed the removal of the condition to the Commission.
The Commission refused to remove the easement condition imposed in the first permit. The landowner petitioned for a writ of admini strative mandate. The trial court gave judgment to the Commission. We affirm.2 Collateral estoppel bars the landown er from attacking in a second permit application the validity of a condition that became final in the first permit application.
FACTS Walton Emmick owned approximatel y 400 acres in San Luis Obispo County. At the time he purchas ed the property, it contained a single family residence and
a barn. The residence was uninhabitable and the barn was in disr epair. The property includes approximately one mile of shorelin e along noncontiguous parcels. The parcels are separated by a parcel owne d by another property owner. In May 2002, Emmick applied to th e County for a coastal development permit (CDP) to rehabilitate the residence. The permit application included interior and exterior improvements, installation of a ne w septic system, and a connection of an existing water well to the house. While the CDP application was pending, in June 2002, Emmick applied to the County for construction permits coveri ng much of the same work as the CDP application. The County issued the permits over the counter. Emmick began work on the residence pursuant to the construction permits. A county inspector told Emmick he had to st op work until the County issued the CDP. Emmick complied. The County did not issue a formal stop-work order.
Emmick died in March 2003. SDS Family Trust (SDS) succeeded to the property. 1 In March 2004, the County approv ed the CDP for which Emmick had applied. The parties refer to it as "CDP-1 ." CDP-1 was conditioned upon SDS's offer to dedicate a lateral easement for public access al ong the shorefront por tion of the property. The County's reason for the easement conditi on was that the residence had not been occupied for several years and its occupa tion would increase the intensity of the property's use.

1 Plaintiffs and appellants, Cotruste es Sandra Bowman, Denise McLaughlan and Sharyn Schrick of the SDS Family Tr ust, are collectively referred to as SDS.3 The notice of approval in formed SDS that it had 14 days to appeal. SDS did not appeal. Nine months later, in December 2 004, SDS applied to the County for another coastal development permit (CDP-2) Th is application was for the construction of a 4,576 square-foot barn to replace the existing barn, which had collapsed. The application included remodel of the existing residence, connection to an existing well and installation of a new septic system, all of which had been approved under CDP-1. Significantly, the application requested the re moval of the condition requiring an offer to dedicate a lateral coastal access easement imposed by CDP-1. The County approved th e CDP-2 application, including the removal of the coastal access condition. The County removed the condition in spite of finding that SDS is "currently in violation" of the lateral easement condition because the remodeling of the residence had begun but SDS has not recorded an offe r to dedicate. The Sierra Club, the Surfrider Foun dation and two coastal commissioners appealed the County's approval of CDP-2 to the Commission. The parties appealing were concerned that the County had elimin ated a valid existing easement condition imposed by CDP-1. The Commission accepted jurisdiction. After hearing, the Commission determ ined that the easement condition contained in CDP-1 is permanent and bind ing on the landowner, and removal of the
easement condition would violate the policy favoring public access to coastal resources. The Commission conditioned its permit on the im plementation of the easement condition
contained in CDP-1.
DISCUSSION
I. In reviewing a judgment from a petiti on for writ of administrative mandate,
our function is the same as th at of the trial court. ( LT-WR, LLC v. Cal. Coastal Com. (2007) 152 Cal.App.4th 770, 780.) We must determine whether the Commission's decision is supported by substantial evidence. ( Paoli v. Cal. Coastal Com. (1986) 178 Cal.App.3d 544, 551-553.)4 In viewing the eviden ce, we look only to th e evidence supporting the prevailing party. ( GHK Associates v. Mayer Group, Inc. (1990) 224 Ca l.App.3d 856, 872.) We discard evidence unfavorable to th e prevailing party as not having sufficient verity to be accepted by the trier of fact. ( Ibid. ) Where the trial court or jury has
drawn reasonable inferences fro m the evidence, we have no power to draw different inferences, even though differe nt inferences may also be reasonable. (9 Witkin, Cal. Procedure (5th ed. 2008 ) Appeal, § 376, p. 434.) The trier of fact is not required to believe even uncontradicted testimony. ( Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1028.)
II.
SDS contends the access easement condition constitutes an unlawful exaction of its property under Nollan v. California Coastal Commission (1987) 483 U.S.
825 and Dolan v. City of Tigard (1994) 512 U.S. 374, beca use the condition is not roughly proportional to the burden the project places on the public interest. SDS also
contends the easement condition vi olates the local coastal plan. The Commission responds that it did not create the easement condition. The condition was created by the County in approving CDP-1. SDS's failure to appeal
CDP-1 rendered the condition final and bi nding. The Commission argues it did nothing
more than refuse to remove a valid and bi nding condition.
Where an administrative tribunal has rendered a quasi-judicial decision that could be challenged by admi nistrative mandamus pursuant to Code of Civil Procedure section 1094.5, a party's failure to pursue that remedy will give rise to collateral estoppel. (See Mola Development Corp. v. City of Seal Beach (1997) 57 Cal.App. 4th 405, 410.) The failure to pursue administrative mandamu s will preclude the litigation of claims that were actually litigated in a prior proceeding or that could have been litigated. ( Patrick Media Group, Inc. v. Cal. Coastal Com. (1992) 9 Cal.Ap p.4th 592, 617.)
Here when the Coun ty granted CDP-1 it made a quasi-judicial
determination that the lateral easement condi tion was valid for the proposed development because development would lead to an increased use of th e property. When SDS failed5 to appeal, that determination became fina l. SDS may not collaterally attack the determination of validity. SDS argues, without citation to aut hority, that a permit applicant who is dissatisfied with a permit condition may simp ly "walk away" from the permit and apply for a new one. SDS may be able to walk away from the permit, but it cannot walk away from collateral estoppel. Collateral estoppel does not depend on the permit. It applies even in cases where no permit is involved. (See, e.g., Weil v. Barthel (1955) 45 Cal.2d 835, 839 [final judgment barring equity of redemption not subj ect to collateral attack].) The purpose of collateral estoppel is to protect the finality of judgments, or in th is case, administrative decisions. (See 7 Witkin, Cal. Procedure (5 th ed. 2008) Judgment, § 334, p. 938.) A party dissatisfied with an administrative decisi on must attack it directly on appeal, or the
issues decided therein will be deemed conclu sively determined against the party. (See
Weil , supra , at p. 839.) It is the finality of that determination, not the permit, from which the collateral estoppel arises. For the same reason, SDS's argument th at CDP-1 has expired is unavailing. Collateral estoppel does not depend on the permit. Here SDS is attempting to use its application for CDP-2 to collaterally
attack the easement condition im posed in CDP-1. The latera l access condition was based on the projected increase in use generated by the development projec t. This condition had been conclusively determined. SDS is precluded from attacking it in a collateral proceeding. Whether the imposition of th e access easement condition violates the
Nollan/Dolan test or the local coastal plan is be side the point. Even an erroneous decision is as conclusive as a correct one. ( Weil v. Barthel , supra , 45 Cal.2d at p. 839.) SDS points out that a permit condition can be modified. But SDS points to nothing that would compel the Commission to modify the access easement condition, a condition the validity of which is not subject to attack. SDS claims that the Commission expa nded the width of the easement beyond that required by CDP-1. But the Co mmission stated under "Special Conditions":6 "Compliance with CDP-1. PRIO R TO ISSUANCE OF THE COASTAL DEVELOPMENT PERMIT, the Pe rmittee shall submit to th e Executive Director for review and approval proof that the offer to dedicate (OTD) a lateral public access trail easement along the shoreline portion of the property as required by CDP[-1] has been
recorded consistent with th e terms and conditions verifyi ng its recordation, and shall include written evidence of review and appr oval by San Luis Obis po County." The easement condition goes no further than requir ing compliance with CDP-1. It does not expand the requirement.
III. SDS contends that it never accepted CDP-1. SDS cites no authority for the propos ition that acceptance of the permit by the applicant is necessary for collateral es toppel. Collateral estoppel is not based on a party's acceptance of the result of a judicial or quasi-judicial determination. Instead, it is based on the policy insulating final decisions from collateral attack . (See 7 Witkin,

supra , § 334 at pp. 938-939.) Thus, even if SDS did not accept CDP-1, it would be precluded from collaterally attacking the easement condition. In any event, the Commission as the tr ier of fact could reasonably conclude SDS accepted CDP-1 by implication. Here SDS completed the work on the house restoration that CDP-1 authorized. SDS did not appeal CDP-1. Inst ead, SDS accepted the benefit of the house restoration and improvements, and that benefit c ontinues to this day. A party who fails to challenge the validity of a pe rmit condition and accept its be nefits has acquiesced in the permit and is bound by the conditions. ( County of Imperial v. McDougal (1977) 19 Cal.3d 505, 510, 511.) SDS argues that it is not enough to acce pt the benefit of a permit in order to be bound; a party must also accept its burden. That one can accept the benefits of a permit and avoid its burdens simply by igno ring or rejecting them is untenable. The cases on which SDS relies, i nvolve permit holders who accep ted the benefits of the permit, but also performed the permit conditions. (Citing County of Imperial v.7 McDougal , supra , 19 Cal.3d at p. 510; Ojavan Investors, Inc. v. Cal. Coastal Com. (1994) 26 Cal.App.4th 516, 527; Rossco Holdings, Inc. v. State of California (1989) 212 Cal.App.3d 642, 646.) But in none of those cases do the courts consider any requirement that a permit holder must accep t the burdens of a permit in order to be found to have accepted the permit. A case is not authority for matters not considered therein. ( Contra
Costa Water Dist. v. Bar-C Properties (1992) 5 Cal.App.4th 652, 660.) Instead, the cases all hold that a party is bound by the conditions of a permit wh en he fails to challenge the permit and accepts its benefits. ( County of Imperial , supra , at pp. 510-511; Ojavan Investors, Inc. , supra , at p. 527; Rossco Holdings, Inc. , supra , at p. 654.) SDS argues that all the improvements were constructed under the County's over-the-counter building permits. It points to evidence that all th e improvements to the house were completed over a year prior to the issuance of CDP-1, and that no improvements have been constructed since. But because SDS's property is in the coastal zone, the County's building permits alone are not sufficient. A CDP is also required. (Pub. Resources Code, § 30600, subd. (a).) SDS appears to argue that becaus e Emmick completed the improvements prior to the time CDP-1 was i ssued, it cannot be said that SDS has accepted the benefits
of CDP-1. But CDP-1 had the potential, at least, to re troactively make the illegally constructed improvements legal. That alone is a benefit. SDS did not, after all, withdraw its application for CDP-1 once the improvement s were completed; nor has it removed the illegally constructed improvements. Moreover, SDS's argument amounts to no thing more than that it has gained an advantage by illegally constructing the im provements instead of waiting for CDP-1 to be issued and complying with its conditions. A party who wa its for the proper permit to legally construct improvements may be said to have accepted the benefit of the permit. But in SDS's view, a party wh o illegally constructs improvements prior to obtaining a permit, may not be said to have accepted th e benefit of the permit, and thus, may escape8 its burdens. Suffice it to say, SDS will not be allowed to obt ain an advantage from illegal
activities. The judgment is affirmed. Costs are awarded to respondent Commission.
CERTIFIED FOR PUBLICATION.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.Dodie A. Harman, Judge
Superior Court County of San Luis Obispo

________________ ______________

Pacific Legal Foundation, Paul J. B eard II, Damien M. Schiff for Plaintiffs and Appellants.
Richard M. Ross for California Cattle men's Association as Amicus Curiae
on behalf of Plainti ffs and Appellants. Briscoe Ivester & Bazel, John Brisco e, Peter Prows for Building Industry Association of the Bay Area as Amicus Curiae on behalf of Plaintiffs and Appellants. Kamala D. Harris, Attorney General, John A. Saurenman, Senior Assistant Attorney General, Christin a Bull Arndt, Supervising De puty Attorney General, for Defendant and Respondent.