West Washington Properties v. Cal. Dept. of Transportation

Filed 10/1/09 West Washington Properties v. Cal. Dept. of Transportation CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Superior Court of Los Angeles County. James C. Chalfant, Judge. Dismissed.

Luce, Forward, Hamilton & Scripps and Gerald M. Murphy, for Petitioner and Appellant.

Ronald W. Beals, Chief Counsel, Thomas C. Fellenz, Deputy Chief Counsel, Cristiana I. Rojas and Joann Georgallis, Assistant Chief Counsels, and O.J. Solander, Deputy Attorney for Respondent.

________________________________

In an administrative proceeding, the California Department of Transportation (Caltrans) found West Washington Properties, LLC (West Washington) was in violation of the Outdoor Advertising Act, Business and Professions Code section 35200, et seq. (the Act), because it did not have a permit for a wallscape it owned, and the display was larger than the Act permits. Caltrans rejected an administrative law judges proposed decision that equitable estoppel and laches barred the agency from enforcing the Act. West Washington petitioned the superior court for a writ of administrative mandate, and also asserted a claim for violation of its civil rights under 42 United States Code, section 1983 (section 1983). The trial court denied the petition and assigned the case for trial of the section 1983 claim. Pursuant to a stipulation with Caltrans, West Washington dismissed the section 1983 claim without prejudice, and appealed from the order denying the petition for writ of administrative mandate. We dismiss the appeal for lack of jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

Underlying Facts

In 1999, West Washington bought an office building at 155 West Washington Boulevard in Los Angeles. On the side of the building was an advertising space, referred to as a wallscape, measuring approximately 8,000 square feet. The wallscape had been in place since 1984, when it was first installed in connection with the 1984 Olympics. When West Washington purchased the building, it conducted a certain amount of due diligence and located permits from the City of Los Angeles for the wallscape. The companys due diligence did not include contacting Caltrans. The wallscape displayed advertising that could be seen from Interstate 10.

In March 2006, a Caltrans field inspector took note of the wallscape and determined that it violated the Outdoor Advertising Act because it did not have a permit (Bus. & Prof. Code,  5350), and exceeded 1,200 square feet (Bus. & Prof. Code,  5408). Although the wallscape had been in use since 1984 without a permit, Caltrans had never before issued a notice of violation. In November 2006, Caltrans issued an amended notice of violation to West Washington.

Administrative Proceedings

West Washington contested the notice of violation.[1] At a January 2007 administrative hearing, West Washington argued Caltrans should be estopped from enforcing the Act as to the wallscape because so much time had passed without the agency taking any action. West Washington contended the opportunity to profit from the wallscape was the significant motivation for its purchase of the building. It also represented that it had rejected offers in the millions of dollars for the sale of the sign, based on the assumption that it would be able to continue legally operating the wallscape. West Washington asserted its agreement to temporarily reduce the size of the wallscape would cost it $50,000 per month in revenue. It further contended that if it was forced to permanently reduce the size of the wallscape, it would lose the entire capitalized future value of the gross revenue (net of agency commissions) generated by the wallscape which calculated at conventional industry cap rates exceeds $12,000,000.

West Washington asserted Caltrans knew or should have known of the wallscape years before it issued a citation. To support this assertion, West Washington claimed Caltrans investigators must have driven past the extremely conspicuous wallscape and could not have missed it because it was so large. West Washington further pointed to photographs in Caltrans files that reflected both portions of the highway and the wallscape. West Washington also argued there were no similarly situated sign owners, thus applying estoppel would not create a precedent. However, Caltrans offered evidence demonstrating that in 2005 and 2006, it cited the owners of seven unrelated advertisement signs for violations of the Acts size requirements.

The administrative law judge issued a proposed decision finding that the wallscape violated the Act, but that Caltrans was barred from enforcing the Act due to equitable estoppel and laches. The Caltrans Director only partially adopted the administrative law judges findings. The Director determined that under People Ex Rel. Dept. of Transportationv. Outdoor Media Group (1993) 13 Cal.App.4th 1067, the equitable defenses of estoppel and laches did not apply because the Legislature had specified that violations of the Act are a nuisance per se.

Superior Court Proceedings

West Washington filed a petition for writ of administrative mandate in the superior court. The petition included a complaint for damages. The joint petition asserted a claim under section 1983 alleging Caltrans violated West Washingtons civil rights. West Washington charged that Caltrans violated [its] procedural due process rights found in the Fifth and Fourteenth Amendment to the United States Constitution, and further that [b]y depriving [West Washington] of substantially all reasonable use of the Wallscape based on arbitrary and capricious government action, Caltrans violated [West Washingtons] substantive due process guarantees found in the Fifth and Fourteenth Amendment.

The trial court agreed that equitable defenses would not bar Caltrans from enforcing the Act as to the wallscape and denied the petition for writ of mandate. The court sent the case to a different department for further proceedings on the section 1983 claim. West Washington filed the instant appeal from the order denying the petition for writ of administrative mandate. The parties subsequently stipulated to the dismissal of the section 1983 claim without prejudice. The stipulation provided:

The cause of action for violation of Civil Rights under U.S.C. section 1983 is hereby dismissed, without prejudice; Petitioner may file and amend the current complaint to restate the existing cause of action and add a cause of action for inverse condemnation. The statute of limitations on all claims shall be tolled during the period of the appeal, up to and including the period following the remittitur at which time jurisdiction is returned to the Superior Court. Except for any statute of limitations defense on all claims, this stipulation and agreement by Respondent does not preclude Respondent from contesting the merits of, or raising any defense to, any cause of action of the reinstated original and/or amended complaint.

DISCUSSION

I. Appealability

We first consider whether we have jurisdiction to consider this appeal.[2] The existence of an appealable judgment or order is a jurisdictional prerequisite to an appeal. [Citations.] (Harrington-Wisely v. State of California (2007) 156 Cal.App.4th 1488, 1494 (Harrington-Wisely).) There was no judgment entered in this case. We therefore must consider whether the order denying the petition for writ of administrative mandate was appealable, either as an effective judgment, or an order. After doing so, we conclude that there is no appellate jurisdiction at this time.

A. The One Final Judgment Rule

In general, a petition for writ of administrative mandate is a special proceeding under Code of Civil Procedure section 1067, and an order denying the petition is appealable. (MCM Construction, Inc. v. City and County of San Francisco (1998) 66 Cal.App.4th 359, 367, fn. 3.) However, when the request for a writ of administrative mandate is combined with another claim that is not resolved by the denial of the petition, the order denying the petition is not appealable because of the one final judgment rule. As expressed in the seminal case of Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725 (Morehart), an appeal cannot be taken from a judgment that fails to complete the disposition of all the causes of action between the parties even if the causes of action disposed of by the judgment have been ordered to be tried separately, or may be characterized as separate and independent from those remaining.[3] (Id. at p. 743.)

In Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688 (Griset II)[4], the California Supreme Court explained that [w]hen an order denying a petition for writ of administrative mandate does not dispose of all causes of action between the parties, allowing an appeal from the denial order would defeat the purpose of the one final judgment rule by permitting the very piecemeal dispositions and multiple appeals the rule is designed to prevent. (Id. at p. 697.) In Griset II, the court specified that an order denying a petition for writ of administrative mandate is neither an appealable order, nor an appealable judgment, if it leaves other causes of action pending between the parties. (Id. at p. 698; Nerhan v. Stinson Beach County Water Dist. (1994) 27 Cal.App.4th 536.)

In this case, we find the order denying West Washingtons petition for a writ of administrative mandate did not dispose of all of the causes of action between the parties. It therefore was not an appealable order.

B. Parties May Not Create Appellate Jurisdiction by Stipulation

It appears West Washington attempted to solve the one final judgment rule problem by dismissing the section 1983 claim without prejudice. West Washington entered into a stipulation with Caltrans that provided for dismissal of the section 1983 claim and included a waiver of the relevant statute of limitations. But we agree with the numerous courts that have held that this tactic does not in fact solve the problem. For example, in Don Joses Restaurant, Inc. v. Truck Ins. Exchange (1997) 53 Cal.App.4th 115 (Don Jose), the plaintiffs sued the defendant insurance companies on multiple causes of action. After the trial court granted summary adjudication of two of the causes of action, the parties stipulated that the plaintiffs would dismiss all of the remaining causes of action without prejudice, and with a waiver of all applicable statutes of limitation. (Id. at p. 117.) The court of appeal condemn[ed] the artifice of trying to create an appealable order from an otherwise nonappealable grant of summary adjudication by dismissing the remaining causes of action without prejudice but with a waiver of applicable time bars. (Id. at p. 116.) The court indicated the case was not one in which there was in substance a final disposition of all issues, and the parties lacked only a formal final judgment. (Ibid.) The court concluded it was clear that all of the issues between the parties had not been resolved, and further that the one final judgment rule does not allow contingent causes of action to exist in a kind of appellate netherworld. (Id. at p. 118.) The appeal was dismissed for lack of jurisdiction. (Id. at p. 119.)

Several other appellate courts have adopted the Don Jose courts reasoning when an appeal is taken from a trial court order that does not terminate all claims, and the parties have entered into a stipulation that dismisses remaining claims without prejudice and includes a waiver of applicable statutes of limitations. (Hoveida v. Scripps Health (2005) 125 Cal.App.4th 1466; Hill v. City of Clovis (1998) 63 Cal.App.4th 434 (Hill); Four Point Entertainment, Inc. v. New World Entertainment, Ltd. (1997) 60 Cal.App.4th 79 (Four Point); Jackson v. Wells Fargo Bank (1997) 54 Cal.App.4th 240 (Jackson).) In Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422 (Tudor), the court allowed an appeal from a stipulated judgment that did not resolve all claims, but only after the appellant unequivocally confirmed that its dismissal of the unadjudicated claims was with prejudice. (Id. at pp. 1429-1430.)

Similarly, in Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288 (Sullivan), our high court addressed a judgment that did not dispose of all of the plaintiffs causes of action. Although some claims were inadvertently left out of the judgment, one cause of action truly remained pending. The court noted that at the time a retrial was ordered of the one remaining claim, [the plaintiff] could have removed this impasse by voluntarily dismissing the sixth cause of action with prejudice, and further determined that the plaintiff had effectively done so in her reply brief by declaring that she waived any right to a retrial on the cause of action. (Id. at pp. 307-308.) When a party expressly waives on appeal the right to litigate an unresolved cause of action that deprived the judgment as entered of finality, the appellate court may give effect to the waiver by amending the judgment to reflect a dismissal of that cause of action with prejudice. [Citation.] (Id. at pp. 308-309.)

Here however, the section 1983 claim was dismissed without prejudice, expressly to allow West Washington to re-file the claim in the future. Moreover, just as in Don Jose and cases adopting its reasoning, the stipulation included a waiver of the statute of limitations applicable to the dismissed claim and a related but not yet pleaded claim for inverse condemnation.[5] It is obvious from the stipulation that this appeal does not follow a final disposition of all issues between the parties. (Don Jose, supra, 53 Cal.App.4th at p. 117.) Instead, the section 1983 claim was deliberately held in abeyance, and the stipulation attempts to clear the way for appellate jurisdiction where none otherwise exists. (Id. at pp. 118-119.)

In its supplemental brief, West Washington asserts that the dismissal of the section 1983 without prejudice is simply a red herring. We disagree. As numerous cases cited above have explained, it is the dismissal without prejudice that runs afoul of the one final judgment rule. Had West Washington dismissed the section 1983 claim with prejudice, there would be no jurisdictional issue. (Sullivan, supra, 15 Cal.4th at pp. 307-309; Tudor, supra, 65 Cal.App.4th at pp. 1429-1430.)

C. The Order Denying West Washingtons Petition for a Writ of

Administrative Mandate Did Not Resolve All Causes of Action

West Washington argues that the trial courts denial of its petition for writ of mandate effectively disposed of the section 1983 claim. In its supplemental brief on appeal, West Washington represented that the section 1983 claim was pled to allow for recovery of damages for Appellants lost use of the billboard during the course of this litigation if the court determines that [Caltrans] enforcement was unlawful. In other words, if this Court upholds the trial courts decision on the Petition for Writ of Administrative Mandamus, Appellant will not have any basis for maintaining its 1983 cause of action. West Washington argues that under Griset, the appeal is proper. We disagree.[6]

As explained above, in Griset, the court held that an order denying a petition for writ of mandate is neither an appealable order nor an appealable judgment if other claims remain unresolved and pending. However, if the order or judgment effectively disposes of all causes of action between the parties, it is appealable, even though there was no formal entry of judgment in the lower court. Thus, in Griset,the petition for a writ of mandate concerned whether Government Code section 84305 (section 84305) was unconstitutional. The complaint alleged four causes of action: (1) a petition for writ of administrative mandate; (2) a request that the court declare section 84305 unconstitutional; (3) an injunction to prevent the Fair Political Practices Commission (FPPC) from collecting any fine pursuant to section 84305; and (4) an injunction to prevent the FPPC from enforcing section 84305 in the future. (Griset, supra, 25 Cal.4th at p. 693.) The trial court denied the petition for a writ of mandate on grounds that addressed and resolved the constitutionality of the statute as it applied to each of the causes of action. [B]ecause the superior courts ruling reviewed [in a previous appeal] disposed of all causes of action framed by the pleadings, leaving no substantive issue for future determination, it was an appealable judgment. When . . . a trial courts order from which an appeal has been taken disposes of the entire action, the order may be amended so as to convert it into a judgment encompassing actual determinations of all remaining issues by the trial court or, if determinable as a matter of law, by the appellate court, and the notice of appeal may then be treated as a premature but valid appeal from the judgment. [Citations.] (Id. at p. 700.)

This case differs significantly from Griset. Although West Washington now claims that its section 1983 claim was inseparable from the issues decided in the petition for a writ of mandate, two factors undercut this characterization of the claim. First, the claim itself is pled far more broadly than West Washington now suggests. Without referring to specific individual facts, the claim alleges procedural due process and substantive due process violations. The pleading does not appear to limit the section 1983 claim to damages incurred during the litigation of whether Caltrans would be barred by equitable principles from enforcing the Act against West Washington.[7] In fact, the 1983 claim includes an inverse condemnation claim.

The resolution of the sole question addressed belowwhether Caltrans was estopped from enforcing the Act against West Washingtondid not clearly or automatically terminate the section 1983 claim. (Cf. People Ex Rel. Depart. of Pub. Wks. v. Ryan Outdoor Advertising, Inc. (1974) 39 Cal.App.3d 804, 814 [suggesting that although estoppel could not bar government enforcement of the Act, estoppel could prevent the government from denying a claim for damages should the plaintiff pursue an inverse condemnation claim]; Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064, 1073-1074 [order denying issuance of writ of mandate resolved a statute of limitations issue that was fatal to all causes of action and therefore constituted a final judgment].)

Second, the actions of all parties below indicate that they did not view the trial courts denial of the petition for a writ of mandate as effectively disposing of the section 1983 claim. The trial court did not enter a judgment; instead it assigned the case to a trial court for litigation of the section 1983 claim. Caltrans did not demur or take other action to dispose of the section 1983 claim as no longer viable. (Don Jose, supra, 53 Cal.App.4th at p. 118.) And West Washington and Caltrans entered into a stipulation designed specifically to preserve the section 1983 claim so that West Washington might restate the claim later.

We are not faced with a situation in which, due to an oversight, the section 1983 claim remained in name only. This is evidenced by West Washingtons deliberate attempt to create appellate jurisdiction without hampering its ability to pursue the claim later. We cannot conclude that the order denying the petition for writ of administrative mandate necessarily resolved the section 1983 claim, since the order considered only the applicability of equitable doctrines as a bar to enforcement of the Act. Further, West Washington has not waived any right to litigate the section 1983 claim. Unlike the appellant in Sullivan and Tudor, West Washington has not unequivocally confirmed its consent to the dismissal of the unadjudicated [claim] with prejudice. (Tudor, supra, 65 Cal.App.4th at p. 1430; Sullivan, supra, 15 Cal.4th at p. 308 [in a reply brief, plaintiff declared that she waived any right to retrial on the one pending cause of action].)

Thus, the trial courts order denying West Washingtons petition for a writ of administrative mandate was not appealable because another claim remained pending between the parties. Further, the stipulation entered by the parties dismissing the section 1983 claim without prejudice and tolling all limitations periods cannot create appellate jurisdiction.

While Caltrans acknowledges that we have the discretion to treat the appeal as a petition for writ of mandate, the parties do not request such treatment. (Morehart, supra, 7 Cal.4th at p. 746; Hill, supra, 63 Cal.App.4th at p. 446; Jackson, supra, 54 Cal.App.4th at p. 245.) Moreover, such discretion is properly exercised only in the face of unusual circumstances, which are not present here. (Morehart, supra, 7 Cal.4th at p. 746.) There is significant caselaw establishing that the order denying West Washingtons petition for a writ of mandate was not appealable, and that entering into a stipulated dismissal of the remaining claim without prejudice and with a tolling of applicable limitations periods does not create appellate jurisdiction. As our colleagues in Division One noted in Four Point, supra, 60 Cal.App.4th at p. 83, We see no reason to permit . . . any party to get in line for appellate review ahead of those who are awaiting entry of appealable orders and final judgments.

Nothing we say in this opinion should in any way be construed as bearing on the merits of the remaining cause of action, which we leave in the hands of the able trial judge.

DISPOSITION

The appeal is dismissed. Each party is to bear its own costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BIGELOW, J.

We concur:

FLIER, Acting P. J.

BENDIX, J.*

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] Clear Channel Outdoor, Inc. was also originally cited with violating the Act. Pursuant to a settlement agreement between the parties, Caltrans dismissed the accusation against Clear Channel. West Washington also agreed to reduce the advertising area of the wallscape to 1,200 square feet while the litigation was pending.

[2] A reviewing court must raise the issue on its own initiative whenever a doubt exists as to whether the trial court has entered a final judgment or other order or judgment made appealable by Code of Civil Procedure section 904.1. [Citation.] (Harrington-Wisely, supra, 156 Cal.App.4th at p. 1494.) Pursuant to Government Code section 68061, we asked the parties to provide supplemental briefing on the issue of our jurisdiction.

[3] The Morehart court set forth the sound reasons for the one final judgment rule, including the obvious fact that piecemeal disposition and multiple appeals tend to be oppressive and costly. [Citation.] (Morehart, supra, at p. 741, fn. 9.) Other reasons include that interlocutory appeals tend to clog the appellate courts with multiple appeals and create delay and uncertainty in the trial court. (Ibid.) In addition, in some cases, later actions by the trial court may obviate the need for the interlocutory appeal, or may provide a record that establishes error did not occur or was harmless. (Ibid.)

[4]Griset II stemmed from an earlier case involving the same parties, Griset v. Fair Political Practices Com. (1994) 8 Cal.4th 851 (Griset I), in which the California Supreme Court determined Government Code section 84305 does not violate the First Amendment rights of candidates or candidate-controlled committees. (Id. at p. 853.) The complaint in Griset I included a petition for writ of administrative mandate as well as other causes of action, which were resolved by summary adjudication. The Griset I plaintiffs appealed only from the order denying the petition for writ of mandate, and the Supreme Court addressed the issues in that case without analyzing the one final judgment rule. After Griset I was decided, the plaintiffs renewed their motions for summary adjudication and judgment based on intervening authority from the United States Supreme Court. In Griset II, the court was then called upon to determine whether it was appropriate to rule on some of the same issues resolved by Griset I.

[5] The stipulation also expressly reserved West Washingtons ability to amend the complaint to add an inverse condemnation claim.

[6] We also note that the court in Don Jose rejected an argument similar to West Washingtons justification of appealabilityessentially that if the appeal fails, the claims dismissed without prejudice will also fail. The stipulation in Don Jose provided that if the appellants were successful in having the summary adjudication reversed on appeal, they could restate all of the causes of action from the original complaint, including those dismissed without prejudice. But if the court of appeal affirmed the trial court order, the appellants would dismiss their remaining causes of action with prejudice. The court of appeal noted: The stipulation here virtually exudes an intention to retain the remaining causes of action for trial. True, the dismissed causes of action would not be brought back to life if the defendants prevailed. That scenario, however, is functionally indistinguishable from the conventional situation in which the trial courts disposition of one cause of action has the practical effect of substantially weakening a plaintiffs case, but other, weaker, causes of action still remain to be tried. The plaintiff might still possibly prevail on those causes of action. If the effect of the summary adjudication on two causes of action here really was to eliminate the remaining causes of action, then the defendant should have been able to bring another summary adjudication motion to mop up the rest of the plaintiffs case. And if not, then it is clear that all issues between the parties on appeal have not been adjudicated. (Id. at p. 118, fn. omitted.)

[7] Section 1983 may be used as the vehicle for any number of claims generically described as violations of procedural or substantive due process. For example, in Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, the plaintiff joined a petition for writ of administrative mandate on a land-use issue with a section 1983 claim. The section 1983 claim asserted that the defendant deprived plaintiff of his right to substantive due process by arbitrarily and capriciously denying a permit. (Id. at p. 180.) The claim also included an equal protection violation based on the allegation that the defendant rejected the plaintiffs permit application but approved projects by similarly situated applicants. (Id. at p. 186.) Finally, the section 1983 claim sought damages for an alleged taking. (Id. at p. 188.) All versions of the section 1983 claim were eliminated on a demurrer. While the vague nature of West Washingtons section 1983 cause of action may ultimately be a sign of its fallibility, (see Breneric, at p. 180 [to survive demurrer, a section 1983 must plead more than constitutional buzzwords; plaintiff must allege specific facts showing the defendants acts deprived him of a right secured by federal law]), here Caltrans did not challenge the section 1983 claim by demurrer in the trial court.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.