The opinion
Filed 10/24/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
ARTHUR D‟EGIDIO, as co-trustee etc., B269095
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC549246)
v.
CITY OF SANTA CLARITA,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court for Los Angeles
County, Gail R. Feuer, Judge. Affirmed.
Callanan, Rogers & Dzida and Joseph S. Dzida for Plaintiffs and
Appellants.
Burke, Williams & Sorensen, Joseph M. Montes and Joseph P.
Buchman for Defendant and Respondent.
The Outdoor Advertising Act (Bus. & Prof. Code, § 5200 et seq. (the
1 2
Act)) regulates advertising displays (i.e., billboards) adjacent to interstate
or primary highways in California. Section 5270 of the Act states: “The
regulation of the placing of advertising displays by this chapter, insofar as
such regulation may affect the placing of advertising displays within view of
the public highways of this state in unincorporated areas, shall be exclusive
of all other regulations for the placing of advertising displays within view of
the public highways of this state in unincorporated areas whether fixed by a
law of this state or by a political subdivision thereof.” Despite this statement
of exclusivity, the Act also contains several provisions that authorize counties
and cities to enact regulations or ordinances affecting the placing of
billboards, imposing restrictions on advertising displays adjacent to any
highway, or requiring permits and/or licenses for the placing of billboards in
view of any highway. (E.g., §§ 5227, 5230, 5231.)
The primary question presented in this case is whether section 5270
precludes application of county or city billboard ordinances with respect to a
billboard that was placed in an area that was unincorporated at the time of
3
its placement. The trial court concluded that in light of the entire statutory
scheme, section 5270 does not preempt county- or city-enacted limitations on
1
Further undesignated statutory references are to the Business and
Professions Code.
2
We use the terms “advertising displays” and “billboards”
interchangeably throughout this opinion.
3
Although other issues have been raised in this appeal, we find that
none of those issues has merit in light of our resolution of the primary
question.
2
billboards in unincorporated areas that are stricter than the limitations set
forth in the Act. We agree, and affirm the judgment in favor of City of Santa
Clarita (City).
BACKGROUND
The relevant facts of this case are for the most part undisputed.
Plaintiffs Arthur D‟Egidio, co-trustee of the Restated D‟Egidio Trust dated
October 26, 1989, and Carol A. D‟Egidio, trustee of the Carol A. D‟Egidio
Irrevocable Trust dated July 19, 1996, are co-owners, along with other
members of the D‟Egidio family, of a parcel of property that currently is
within the city limits of City. The D‟Egidios bought the property in May 1984
from Kaufman & Broad/Marion Land Company. At the time of the purchase,
the property was in an unincorporated area of Los Angeles County (County).
State Route 14, also known as the Antelope Valley Freeway, runs along
the southern border of the property. Before the D‟Egidios bought the
property, Kaufman & Broad had erected a billboard nine feet from the
freeway, designed to be viewed from the freeway, that was used to advertise
new homes it was developing in the subdivision located across the street from
the property. When Kaufman & Broad conveyed the property to the
D‟Egidios, it reserved an easement to allow it to maintain the billboard for
three years, to 1987. Throughout its management of the billboard, Kaufman
& Broad used the billboard solely to advertise its new development.
After Kaufman & Broad‟s easement expired, Arthur D‟Egidio took over
the management of the billboard. He obtained an outdoor advertising permit
from the California Department of Transportation (Caltrans) and began
leasing out the billboard for general commercial advertising.
3
Under County ordinances as they existed in 1987, signs advertising
subdivisions that were being offered for sale or lease for the first time were
allowed to be placed on the subdivision property, oriented to be read from the
street or highway, without any restriction as to the distance from the street
or highway. (L.A. County Code, §§ 22.08.190 [definition of “Subdivision sales
sign”], 22.52.980 [rules governing subdivision sales signs].) A sign that
advertised a business, profession, product, or service that was not offered or
sold on the property on which the sign was placed (i.e., an “outdoor
advertising sign”), however, could not be placed within 660 feet of the edge of
right-of-way of a freeway or scenic highway if the sign was designed to be
viewed primarily by persons traveling on that freeway or highway. (L.A.
County Code, §§ 22.08.190 [definition of “Outdoor advertising sign”],
22.52.840, subd. (D) [placement condition on outdoor advertising sign].)
City, which had incorporated in December 1987, annexed the area in
which the property was located in 1990. At the time of its incorporation, City
adopted as City‟s ordinances all ordinances codified in the Los Angeles
County Code. In 1989, City amended its sign ordinances to require a
conditional use permit to erect or maintain any outdoor advertising sign, and
to prohibit such signs within 1000 feet of the edge of right-of-way of a freeway
or scenic highway if the sign was designed to be viewed partially or primarily
by persons traveling on the freeway or highway. (Santa Clarita Ord. No. 89-
17, amending Santa Clarita Mun. Code, § 22.52.840.) Those requirements
remained in effect (codified in 1992 as Santa Clarita Mun. Code, § 17.19.050
(A), (E)) until 2003, when City again amended its sign regulations to provide
that outdoor advertising signs (which it called “off-site signs”) were not
permitted at all, except that such signs that were lawfully erected before the
effective date of the amendment could be lawfully maintained as a legal
4
nonconforming use. (Santa Clarita Ord. No. 03-17, amending and restating
Santa Clarita Mun. Code, §§ 17.19.240 (M) [prohibiting off-site signs, with
exceptions for legal nonconforming use], 17.19.160 [allowing existing lawfully
erected signs as legal nonconforming use].) The provisions prohibiting off-
site signs, but permitting such signs that previously were lawfully erected to
be maintained as legal nonconforming uses currently are found at
subdivisions (M) and (U)(12) of Santa Clarita Municipal Code section
17.51.080. However, in 2014, City passed an ordinance that amended the
regulations and required, among other things, the removal within five years
of offsite signs that were lawfully erected before November 13, 1990. (Santa
Clarita Ord. No. 14-01, amending Santa Clarita Mun. Code, § 17.05.050.)
In 2007, City asserted (for the first time) that the D‟Egidios‟ billboard
was illegal because it was not properly permitted. City and the D‟Egidios
entered into negotiations concerning the billboard, but failed to reach a
4
settlement. On May 27, 2014, City sent a letter to counsel for the D‟Egidios,
stating that, in accordance with Santa Clarita Municipal Code section
5
17.05.050 (B)(3), the D‟Egidios were required to remove their billboard by
April 24, 2019.
4
The D‟Egidios allege a settlement was reached, but admit that City
declined to sign the proposed settlement agreement.
5
City quoted Santa Clarita Municipal Code section 17.05.050 (B)(3) as
follows: “In the case of outdoor advertising signs or structures (i.e., billboards
and other off-site signs) in non-residential zones lawfully erected prior to
November 13, 1990, except where approved pursuant to Sections 17.26.100
(Billboard Reduction and Relocation Agreement) or 17.28.100 (Development
Agreements), such signs and structures shall be discontinued and removed
within five (5) years of the effective date of this subsection (which is 04-24-
2014) pursuant to and as allowed by California Business and Professions
Code Section 5412.”
5
The D‟Egidios filed a complaint for declaratory relief three weeks later.
They alleged that at all times during its existence, the billboard was
authorized by permits issued by Caltrans, which they believed in good faith
were the only permits required. They also alleged on information and belief
that before City was incorporated, County did not require any permit to
maintain the billboard and that, even if County did require such a permit,
that requirement was preempted by state law. Finally, the D‟Egidios alleged
that City‟s demand for removal of the billboard is barred by the doctrines of
laches and estoppel. They asked for a judicial determination as to the rights
and obligations of the parties regarding the billboard.
After City‟s demurrer to the complaint was overruled and its motion to
strike portions of the complaint was denied, City filed a cross-complaint
against the D‟Egidios, alleging that the billboard was not lawfully erected
under the Act and the County Code in effect in 1987, and therefore cannot be
deemed a legal nonconforming use. It alleged claims for violation of the
Santa Clarita Municipal Code and maintenance of a public nuisance, and
sought declaratory relief and an injunction prohibiting the D‟Egidios from
maintaining the billboard. City also sought attorney fees under Santa
Clarita Municipal Code section 23.30.130.
City filed a motion for summary judgment on the complaint and cross-
complaint, contending that (1) the Act does not preempt local government
regulations regarding billboards; (2) the undisputed evidence shows that the
D‟Egidios‟ billboard did not comply with the Los Angeles County Code when
its use was modified in 1987 from a subdivision sales sign to an outdoor
advertising sign; (3) because the billboard was not lawfully erected, it is
unlawful under City‟s municipal code and must be removed; and (4) City
6
cannot be estopped from enforcing its municipal code with regard to the
billboard. The D‟Egidios did not dispute in any meaningful way City‟s facts
6
in support of its motion. The trial court granted summary judgment in favor
of City in a detailed ruling. It entered judgment finding that the billboard
was not lawfully erected in 1987 when the D‟Egidios changed its use to an
outdoor advertising sign because its placement violated Los Angeles County
Code section 22.52.840, it is prohibited under the Santa Clarita Municipal
Code, and it constitutes a public nuisance. The court ordered that the
D‟Egidios were permanently enjoined and prohibited from maintaining the
billboard on their property.
City moved for its attorney fees under California Rules of Court, rule
3.1702, Code of Civil Procedure section 1033.5, subdivision (a)(10)(B),
Government Code section 38773.5, and Santa Clarita Municipal Code section
1.01.220(D). The court granted City‟s motion, awarding City attorney fees in
the amount of $48,633.20. The D‟Egidios timely filed notices of appeal from
the judgment and the postjudgment order granting City attorney fees.
DISCUSSION
On appeal, the D‟Egidios contend the trial court erred in granting
summary judgment because (1) the court improperly relied upon County and
6
For example, the D‟Egidios disputed certain facts related to technical
issues regarding Kaufman & Broad‟s placement and maintenance of the
billboard and the 1987 Los Angeles County Code, but some of those disputes
actually are legal disputes and the others are not relevant to the issues to be
determined by the summary judgment. The D‟Egidios also presented
additional facts, which they asserted precluded summary judgment; most of
those facts either were not disputed by City or were not supported by the
evidence in light of City‟s sustained objections.
7
City regulations, which were preempted by section 5270, to conclude that the
billboard was illegal; (2) the court failed to apply the rebuttable presumption
of legality as set forth in section 5216.1; (3) there were disputed issues of fact
regarding whether the doctrines of laches and estoppel precluded City from
asserting the billboard is illegal. The D‟Egidios also challenge the award of
attorney fees to City on the grounds that the award penalizes citizens who
seek guidance in a declaratory relief action regarding an issue of first
impression concerning an inconsistent statutory scheme, and, to the extent
the award was based upon City‟s nuisance claim, the claimed nuisance was
pretextual.
A. Section 5270 Does Not Preempt Local Regulations That Are More
Restrictive Than the Act
The D‟Egidios observe in the appellants‟ opening brief that “the
meaning and interpretation of the exclusivity provision [set forth in section
5270] is the primary question” in this appeal. We agree.
“„“As in any case involving statutory interpretation, our fundamental
task here is to determine the Legislature‟s intent so as to effectuate to law‟s
purpose.”‟” (Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles
(2012) 55 Cal.4th 783, 803 (Pacific Palisades).) Ordinarily, “„“[i]f the statute‟s
text evinces an unmistakable plain meaning, we need go no further.”‟” (Ibid.)
In this case, there is no question that the language of section 5270 -- that the
Act‟s regulations affecting the placing of advertising displays within view of
public highways in unincorporated areas “shall be exclusive of all other
regulations for the placing of advertising displays within view of the public
highways of this state in unincorporated areas whether fixed by a law of this
state or by a political subdivision thereof” -- appears to preclude the
8
application of any county or city regulation to advertising displays within
view of public highways in unincorporated areas. This seemingly
unambiguous language, however, is made ambiguous by several other
provisions of the Act that expressly allow, or contemplate, the enactment and
enforcement by counties and/or cities of local regulations affecting the placing
of advertising displays.
For example, section 5227 appears to directly contradict the exclusivity
provision of section 5270. It provides, in relevant part: “It is the intention of
the Legislature to occupy the whole field of regulation by the provisions of
this chapter except that nothing in this chapter prohibits . . . the passage by
any county of reasonable land use or zoning regulations affecting the placing
of advertising displays in accordance with the provisions of the Planning
Law, Chapter 1 (commencing with Section 65000) of Title 7 of the
Government Code, relating to zoning . . . .” (§ 5227, italics added.) Similarly,
section 5230 contradicts the exclusivity provision of section 5270 by expressly
granting cities and counties the authority to pass such regulations or other
ordinances: “The governing body of any city, county, or city and county may
enact ordinances, including, but not limited to, land use or zoning ordinances,
imposing restrictions on advertising displays adjacent to any street, road, or
highway equal to or greater than those imposed by this chapter, if Section
[7]
5412 is complied with. No city, county, or city and county may allow an
advertising display to be placed or maintained in violation of this chapter.”
(§ 5230.) And section 5231 grants cities and counties authority to enact
7
Section 5412 provides that an advertising display that was lawfully
erected in compliance with state laws and local ordinances in effect when the
displays were erected cannot be compelled to be removed or its customary use
be limited without payment of compensation under the eminent domain law.
9
ordinances requiring licenses and/or permits in addition to those imposed by
the Act for placing of advertising displays in view of any highway.
Other provisions of the Act make clear that those locally-enacted
ordinances apply to all advertising displays adjacent to highways. For
example, section 5229 states that “[t]he provisions of this chapter shall not be
construed to permit a person to place or maintain in existence on or adjacent
to any street, road or highway, including any interstate or state highway, any
outdoor advertising prohibited by law or by any ordinance of any city, county
or city and county.” Similarly, section 5366 provides that “[t]he issuance of a
permit pursuant to this chapter does not allow any person to erect an
advertising display in violation of any ordinance of any city, county, or city
and county.” That the Legislature contemplated that cities and counties
would enact ordinances regulating outdoor advertising displays also is shown
in its declaration of intent regarding the Act: “It is declared to be the intent
of the Legislature in enacting the provisions of this chapter regulating
advertising displays adjacent to highways included in the national system of
interstate and defense highways or the federal-aid primary highway system
to establish minimum standards with respect thereto.” (§ 5228.) In other
words, the Legislature intended that counties and cities could enact
regulations that were more restrictive than the regulations under the Act.
Given these provisions of the Act -- which make no distinction between
billboards in incorporated areas and in unincorporated areas -- it seems clear
that the Legislature did not intend that section 5270 would preclude the
application of all local ordinances to billboards in unincorporated areas.
Therefore, to determine what the Legislature did intend, “„we may “look to a
variety of extrinsic aids, including the ostensible objects to be achieved, the
evils to be remedied, the legislative history, public policy, contemporaneous
10
administrative construction, and the statutory scheme of which the statute is
a part.”‟ [Citation.]” (Pacific Palisades, supra, 55 Cal.4th at p. 803.)
1. History of the Act
8
We begin our inquiry with the original codification of the Act in 1939.
(Stats. 1939, ch. 32, § 1, pp. 333-340.) As originally codified, the Act was very
limited in scope. It applied “only to the placing of advertising displays within
view of the public highways located in any of the territory of the State of
California, other than the territory within incorporated cities and towns.”
(Stats. 1939, ch. 32, § 1, p. 334, adding § 5226.) It required persons who
engaged in the business of outdoor advertising to pay a license fee and to
obtain a permit from the director of the Department of Public Works to place
an advertising display, it regulated the size, placement, and types of
advertising displays allowed (almost all of which regulations were directed at
ensuring the safety of travelers on the highway), and it set forth the crimes
and penalties for violations of the Act. (Stats. 1939, ch. 32, § 1, pp. 335-339,
adding former §§ 5240-5314.)
Only two of the provisions quoted above were in the Act in 1939. The
language now found in section 5270 was found in former section 5225 of the
original codification. (Stats. 1939, ch. 32, § 1, p. 334, adding § 5225 [“The
regulation of the placing of advertising displays by this chapter, in so far as
such regulation may affect the placing of advertising displays within view of
the public highways of this State in unincorporated areas, shall be exclusive
of all other regulations for the placing of advertising displays within view of
8
The Act originally was enacted in 1933 (Stats. 1933, ch. 341, p. 938),
but was not codified until 1939.
11
the public highways of this State in unincorporated areas whether fixed by a
law of this State or by a political subdivision thereof”].) The language from
section 5227 quoted above also appeared in former section 5227 of the 1939
codification, although it cited to the zoning statutes in effect at that time: “It
is the intention of the Legislature to occupy the whole field of regulation by
the provisions of this chapter except that nothing in this chapter prohibits . . .
the passage by any county of reasonable land use or zoning regulations
affecting the placing of advertising displays in accordance with the provisions
of Chapter 838 of the Statutes of 1929, relating to zoning.” (Stats. 1939, ch.
32, § 1, p. 334, adding former § 5227.) In a subsequent amendment made
during the 1939 legislative session, the Legislature made clear that
billboards were required to comply with county zoning ordinances by adding
the following paragraph to former section 5268: “The issuance of a permit
[under the Act] does not affect the obligation of the owner of the advertising
display to comply with a zoning ordinance applicable to the advertising
display under the provisions of this chapter nor does the permit prevent the
enforcement of the applicable ordinance by the county.” (Stats. 1939, ch.
1121, § 11, p. 3070, amending former § 5268.)
The scope of the Act was significantly expanded in 1964, when the
Legislature enacted the Collier-Z‟berg Act of 1964. (Stats. 1964, 1st Ex. Sess.,
ch. 128, §§ 1-14, pp. 393-397.) The impetus for this expansion came from
federal legislation in 1958 that provided a bonus of federal-aid highway funds
to states that enacted expanded controls over billboards along interstate
highways. As explained in a report of the Assembly Committee on Natural
Resources, Planning, and Public Works (which was chaired by
Assemblymember Edwin L. Z‟berg), “[a]s the result of intensive study of the
subject, the committee recommended enactment of the Collier-Z‟berg Act of
12
1964, which, based on the need to restore and preserve scenic resources and
urban amenities and contribute to increased traffic safety, established the
principle of expanded control of outdoor advertising in California by
regulating advertising along interstate highways.” (Assem. Com. on Natural
Resources, Planning, and Public Works, Rep. on Highway Beautification, etc.
(Jan. 1967), Supp. To Appendix to the Journal of the Assembly (1967 Reg.
Sess.), p. 9.) The Collier-Z‟berg Act of 1964 thus expanded the scope of the
Act to regulate all billboards along interstate highways, not just those in
unincorporated areas, except for certain segments of interstate highways that
traverse and abut on certain commercial or industrial zones in incorporated
municipalities. (Stats. 1964, 1st Ex. Sess., ch. 128, §§ 2-3, pp. 394-395,
adding former §§ 5288, 5288.1.) To that end, former section 5288 was added
to express the purpose of the Act: “The regulation of advertising structures
adjacent to any state highway included in the national system of interstate
and defense highways as herein provided is hereby declared to be necessary
to promote the public safety, health, welfare, convenience and enjoyment of
public travel, to protect the public investment in such highways, to preserve
the scenic beauty of lands bordering on such highways, and to insure that
information in the specific interest of the traveling public is presented safely
and effectively, recognizing that a reasonable freedom to advertise is
necessary to attain such objectives.” (Stats. 1964, 1st Ex. Sess., ch. 128, §§ 2-
3, p. 394, adding former § 5288.) No changes were made to former section
5225 (now section 5270), nor were there any provisions (other than former
section 5227 and former section 5268) related to local ordinances to regulate
billboards.
The next significant changes to the Act came in the Collier-Z‟berg Act of
1967, which arose out of the passage of the federal Highway Beautification
13
Act of 1965 championed by First Lady Lady Bird Johnson.
(https://www.fhwa.dot.gov/infrastructure/beauty.cfm; Stats. 1967, ch. 1408,
§ 1, p. 3306 [“It is the intention of the Legislature, in enacting this act, to
provide for the effective control of outdoor advertising required by the
Highway Beautification Act of 1965”].) Among other things, the Collier-
Z‟berg Act of 1967 amended former section 5226 to provide: “The provisions
of this chapter apply only to the placing of advertising displays within view of
highways located in unincorporated areas of this state, except that the placing
of advertising displays within 660 feet from the edge of the right-of-way of,
and the copy of which is visible from, interstate highways or primary
highways, including the portions of such highways located in incorporated
areas, shall be governed by this chapter.” (Stats. 1967, ch. 1408, § 14, p. 3309,
amending former § 5226, italics added.)9
The Collier-Z‟berg Act of 1967 also added former section 5288.7, which
declared the Legislature‟s intent that the provisions of the Act establish
minimum standards with respect to regulating billboards adjacent to
interstate and primary highways, and authorizing cities and counties to
enact ordinances imposing restrictions that were equal to or greater than
those imposed by the Act. Importantly, former section 5288.7 also authorized
cities and counties to enact such ordinances with respect to billboards
adjacent to any highway within their boundaries. (Stats. 1967, ch. 1408,
§ 28.5, p. 3316, adding former § 5288.7 [“It is declared to be the intent of the
Legislature in enacting the provisions of this chapter regulating advertising
9
A provision defining “primary highway” -- “any highway, other than an
interstate highway, at any time officially designated as a part of the federal-
aid primary system by the director and approved by appropriate authority of
the federal government” -- also was added to the Act. (Stats. 1967, ch. 1408,
§ 4, p. 3307, adding former § 5207.2.)
14
displays adjacent to highways included in the national system of interstate
and defense highways or the federal-aid primary highway system to establish
minimum standards with respect thereto. The governing body of any city,
county, or city and county may enact ordinances, including but not limited to
land use or zoning ordinances, imposing restrictions on advertising displays
adjacent to any street, road, or highway equal to or greater than those
imposed by this chapter. The governing body of any city or city and county
may enact ordinances requiring licenses or permits, or both, for the placing of
advertising displays in view of any highway, including a highway included in
the national system of interstate and defense highways or the federal-aid
primary highway system, within its boundaries”].)
In 1970, the entire Act was repealed and replaced, without substantive
change, for the purpose of rearranging and renumbering the provisions.
(Stats. 1970, ch. 991, §§ 1-2, pp. 1764-1782.) Former section 5225 was
enacted, without change, as section 5270. (Stats. 1970, ch. 991, § 2, p. 1768.)
The Act was amended again in 1983. The most significant changes for
purposes of this case were the addition of provisions defining “lawfully
erected,” providing a rebuttable presumption that a billboard was lawfully
erected if it had been in existence for at least five years during which no
governmental entity provided the owner with written notice stating that that
the billboard was not lawfully erected (§ 5216.1), and expressly stating that
the issuance of a permit under the Act does not allow any person to place a
billboard in violation of local ordinances (§ 5366). (Stats. 1983, ch. 653, §§ 2,
13, pp. 2580, 2582, adding §§ 5216.1, 5366.) In addition, the Legislature
amended section 5231 to make clear that a city or county may enact
ordinances to require a billboard owner or operator to obtain a license or
15
permit in addition to any license or permit required by the Act. (Stats. 1983,
ch. 653, § 6, p. 2581, amending § 5231.)
As this history shows, the Act went from a very limited statutory
scheme to regulate billboards adjacent to highways in unincorporated areas
of the state for the purpose of protecting the safety of travelers on public
highways, to a wide ranging scheme to regulate billboards adjacent to all
highways, not only for safety reasons, but also to “promote the public . . .
health, welfare, convenience and enjoyment of public travel, to protect the
public investment in such highways, to preserve the scenic beauty of lands
bordering on such highways, and to insure that information in the specific
interest of the traveling public is presented safely and effectively.” (§ 5226.)
Despite the significant change in the scope and purpose of the Act, the
Legislature never addressed or amended the exclusivity provision of section
5270, or its apparent contradiction with the language in section 5227 -- that
nothing in the Act prohibits counties from regulating the placing of billboards
through land use or zoning laws -- even though both provisions have been a
part of the Act since its original codification.
2. Prior Interpretations
Although the Legislature has never addressed the apparent
contradiction between sections 5270 and 5227 (or the many other provisions
allowing local regulation), the Attorney General did so in 1953, in an opinion
requested by State Senator Hugh M. Burns. Senator Burns asked the
Attorney General for an opinion regarding whether a county may “enact an
ordinance prohibiting billboards within five hundred feet of freeways in
unincorporated areas.” (21 Ops.Cal.Atty.Gen. 43 (1953).)
16
In answering the Senator‟s question, the Attorney General noted that,
despite the exclusivity provision of (former) section 5225 (now section 5270),
there were two other provisions of the Act that demonstrated the
Legislature‟s intent to allow counties to regulate billboards through zoning
ordinances: section 5227 and (former) section 5268, which at the time of the
Attorney General‟s opinion provided in relevant part: “The issuance of a
permit does not affect the obligation of the owner of the advertising display to
comply with a zoning ordinance applicable to the advertising display under
the provisions of this chapter nor does the permit prevent the enforcement of
the applicable ordinance by the county.” (Stats. 1939, ch. 1121, § 11, p. 3070,
amending former § 5268.) From these provisions, the Attorney General
concluded that “it is clear that a county by appropriate ordinance may enforce
any or all of the provisions of the Outdoor Advertising Act. Further, a county
may adopt reasonable land use or zoning regulations to affect the placing of
advertising displays in accordance with the provisions of chapter 838 of the
Statutes of 1929 relating to zoning.” (21 Ops.Cal.Atty.Gen. 43, 44.)
Addressing the apparent contradiction between this conclusion and the
exclusivity provision, the Attorney General examined the regulations set
forth in the Act, and found that the Act “prohibits placing signs in designated
locations or under stated conditions, all of which, with one inapplicable
exception . . . , are concerned with safety, not only of the signs themselves,
but particularly as they might affect traffic on highways.” (21
Ops.Cal.Atty.Gen. 43, 45.) Therefore, the Attorney General concluded that
the Act “taken as a whole appears to be a clear intention on the part of the
Legislature to place with the State itself exclusive domination and control of
advertising upon the public highways in unincorporated areas from the
standpoint of safety, that is, to provide State regulation so that advertising
17
structures will not interfere with the safe use of such highways. This is a
proper use of the police power of the State. [¶] However, the act recognizes
the need and authorizes counties to regulate advertising displays as a part of
county zoning. Thus, it seems clear that in unincorporated areas a county
may in the course of district zoning, as commonly practiced, control
advertising.” (Ibid.)
The only case we have found in which a court addressed the exclusivity
provision and its apparent contradiction with section 5227 and other
provisions allowing local regulation of billboards is Viacom Outdoor, Inc. v.
City of Arcata (2006) 140 Cal.App.4th 230 (Viacom). In that case, the City of
Arcata sought to enforce its ordinances requiring permits before Viacom
could rebuild its wind-destroyed billboards. (Id. at p. 234.) Viacom
contended that the Act allowed cities only the power to regulate the location
and placement of new billboard structures and otherwise preempted the
entire field of regulation of billboards. (Id. at pp. 234-235.) The trial court
agreed with Viacom, and found that the Act (and regulations promulgated
thereunder) set forth the criteria by which billboards may be re-erected, and
preempts the field. (Id. at p. 235.)
The appellate court reversed. The court noted that, as originally
codified, “the Legislature intentionally extended the exclusive reach of the . . .
Act only to counties, and only to the unincorporated parts of counties
adjacent to what were then state highways. These provisions [i.e., former
section 5225 and former section 5227], read together did not purport to
extend any exclusive state power to state highways located within cities [such
as the incorporated City of Arcata].” (Viacom, at p. 238.) The court found
that, in light of the many provisions of the Act that expressly allowed
counties and cities to enact ordinances regulating billboards or required
18
compliance with those ordinances, “the Legislature clearly contemplated that
local regulation would augment the State Act, and might in some instances
go beyond it.” (Id. at p. 241.)
3. Section 5270 Must Be Interpreted Not to Preempt Local
Ordinances
The D‟Egidios seize upon the language in Viacom that “the Legislature
intentionally extended the exclusive reach of the . . . Act only to counties, and
only to the unincorporated parts of counties adjacent to what were then state
highways” (Viacom, supra, 140 Cal.App.4th at p. 238) to argue that although
the Act is not exclusive to the extent it applies to billboards in incorporated
areas, it is exclusive with regard to billboards in unincorporated areas. We
disagree.
First, this passage in Viacom is dictum, inasmuch as the billboards at
issue in that case were located in an incorporated city. But more
importantly, the court‟s observation was made with regard to the Act as
originally codified in 1939. (Viacom, supra, 140 Cal.App.4th at pp. 237-238.)
The court did not discuss the Attorney General‟s conclusion -- with which we
agree -- that the Act (as it existed in 1953) placed with the state exclusive
control of billboards in unincorporated areas from the standpoint of safety,
but authorized counties to control billboards in unincorporated areas through
zoning ordinances. (21 Ops.Cal.Atty.Gen. 43, 45.) Moreover, as we have
discussed, the Act has undergone significant changes, both in scope and
purpose, since the Act was codified in 1939. The fact that the Legislature has
added even more provisions allowing counties and cities to enact and enforce
regulations that are as restrictive or more restrictive than the regulations set
forth in the Act reinforces our view that the Attorney General‟s conclusion
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was correct, and that section 5270 does not preclude application of county
regulations to billboards in unincorporated areas.
We recognize that under our interpretation, the exclusivity provision of
section 5270 has little effect. At most, it might preclude a county regulation
that related solely to the safety of travelers on state highways. But it is not
this Court that has limited the exclusivity provision, it is the Legislature that
has expanded and made clear the authority of counties to regulate billboards
within its boundaries, including in unincorporated areas.
B. The Trial Court Correctly Found the D’Egidios’ Billboard Was Illegal
As noted, the trial court found that the D‟Egidios‟ billboard was illegal
because it was not lawfully erected in 1987 under the Los Angeles County
Code, and therefore is prohibited under the Santa Clarita Municipal Code.
The D‟Egidios argue that the trial court made two errors (other than its
conclusion that County‟s regulations were not preempted by section 5270) in
making this finding. First, they argue that the court improperly found that
the billboard, which was lawful when it was originally erected by Kaufman &
Broad, became unlawful when the D‟Egidios took over control of the billboard
and began leasing it for general commercial advertising. Second, they argue
the court failed to apply the presumption of legality set forth in section
5216.1. Neither argument has merit.
1. The Change in Use in 1987 Violated the County Code
In 1987, the D‟Egidios changed the use of the billboard, from
advertising the sales of new homes in the subdivision across the street from
the billboard (while Kaufman & Broad controlled the billboard), to general
commercial advertising. Under the Los Angeles County Code in effect at
20
that time, billboards used for general commercial advertising could not be
placed less than 660 feet of the edge of right-of-way of a freeway if designed
to be viewed primarily by persons travelling on the freeway, unless the owner
or operator obtained a conditional use permit allowing a deviation from this
restriction. (L.A. County Code, §§ 22.08.190 [definition of “Outdoor
advertising sign”], 22.52.840, subd. (D) [placement condition on outdoor
advertising sign]; 22.56.110 [regulations apply unless modified by a
conditional use permit].)
The D‟Egidios do not dispute that the billboard is only nine feet from
the Antelope Valley Freeway right of way. Nor do they dispute that they did
not seek approval or a conditional use permit from County with respect to the
billboard. Instead, they appear to argue that, because the billboard was legal
when it originally was erected by Kaufman & Broad (because the provisions
governing subdivision sales signs, section 22.52.980 of the Los Angeles
County Code, did not impose any restriction with regard to the placement of
the sign relative to the right-of-way of a freeway), it was “lawfully erected”
and its change of use in 1987 could not cause the billboard to be unlawfully
erected. They are incorrect.
The Act specifically provides that when the use of a billboard is
modified after it was erected in a manner that causes it to become illegal
under state or local ordinances, the billboard no longer is “lawfully erected.”
(§ 5216.1 [“„Lawfully erected‟ means, in reference to advertising displays,
advertising displays which were erected in compliance with state laws and
local ordinances in effect at the time of their erection . . . except that the term
does not apply to any advertising display whose use is modified after erection
in a manner which causes it to become illegal”], italics added.) Therefore, the
21
trial court did not err in finding that, as of the change in use of the billboard
in 1987, the billboard was not lawfully erected.
2. City Rebutted the Presumption of Legality
In addition to defining “lawfully erected,” section 5216.1 provides “a
rebuttable presumption pursuant to Section 606 of the Evidence Code that an
advertising display is lawfully erected if it has been in existence for a period
of five years or longer without the owner having received written notice
during that period from a governmental entity stating that the display was
not lawfully erected.” The D‟Egidios argue that it presented undisputed facts
that the billboard had been in existence for more than 20 years and neither
City nor County provided written notice that it was not lawfully erected, and
therefore the trial court erred by failing to apply this presumption, which the
D‟Egidios contend would raise disputed issues precluding summary
judgment. They are mistaken.
What the D‟Egidios fail to acknowledge is that the presumption is a
rebuttable presumption pursuant to Evidence Code section 606. Under that
statute, “[t]he effect of a presumption affecting the burden of proof is to
impose upon the party against whom it operates the burden of proof as to the
nonexistence of the presumed fact.” (Evid. Code, § 606.) Thus, the D‟Egidios‟
undisputed evidence simply placed on City the burden to prove that the
billboard was not lawfully erected. City met its burden by presenting
undisputed facts that the D‟Egidios modified the use of the billboard in 1987
in a manner that made it illegal under the Los Angeles County Code in effect
at that time. Therefore, the presumption no longer applied.
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C. The D’Egidios Failed to Raise a Disputed Issue of Fact Regarding
Estoppel or Laches
In opposition to the summary judgment motion, the D‟Egidios
contended there were triable issues of fact as to whether the doctrines of
estoppel or laches applied because City‟s 17-year delay has caused them
prejudice in that evidence to show their compliance with the Act has been
lost. The trial court found that equitable estoppel was inapplicable because
the billboard was an ongoing nuisance and because, absent a showing of
prejudice, the D‟Egidios‟ reliance on mere inaction by City is insufficient to
establish estoppel. The court also found that laches did not apply because the
D‟Egidios failed to present evidence of any prejudice caused by the delay.
On appeal, the D‟Egidios argue that estoppel and laches apply in this
case because there were disputed issues of fact regarding whether the
injustice to them in allowing City to declare the billboard a public nuisance
after so many years outweighed the impact on public interest and policy if
City is barred from seeking to declare the billboard a public nuisance. They
contend they raised a triable issue as to whether they were prejudiced by
City‟s delay because Arthur D‟Egidio testified that he had lost memory in the
passing decades and could no longer investigate to find evidence lost in the
passage of time. We are not persuaded.
In their appellants‟ opening brief, the D‟Egidios make little distinction
between estoppel and laches in arguing that the trial court erred in finding
neither doctrine applies. For ease of reference, we will address each doctrine
separately.
“„“Generally speaking, four elements must be present in order to apply
the doctrine of equitable estoppel: (1) the party to be estopped must be
apprised of the facts; (2) he must intend that his conduct shall be acted upon,
23
or must so act that the party asserting the estoppel had a right to believe it
was so intended; (3) the other party must be ignorant of the true state of
facts; and (4) he must rely upon the conduct to his injury.” [Citation.]‟
[Citation.] Estoppel will not apply if any one of the elements is missing.
[Citation.] [¶] When equitable estoppel is asserted against a governmental
agency, there are additional considerations. As explained in the seminal case
City of Long Beach v. Mansell (1970) 3 Cal.3d 462 [91 Cal.Rptr. 23, 476 P.2d
423] (Mansell): „The government may be bound by an equitable estoppel in
the same manner as a private party when the elements requisite to such an
estoppel against a private party are present and . . . the injustice which
would result from a failure to uphold an estoppel is of sufficient dimension to
justify any effect upon public interest or policy which would result from the
raising of an estoppel.‟ [Citation.] Yet, „an estoppel will not be applied
against the government if to do so would effectively nullify “a strong rule of
policy, adopted for the benefit of the public . . . .”‟ [Citation.] In Mansell, our
Supreme Court noted that the government will be estopped only in an
„exceptional case.‟ [Citation.]” (West Washington Properties, LLC v.
Department of Transportation (2012) 210 Cal.App.4th 1136, 1145-1146.)
The present case is not an exceptional case. In fact, in finding that the
D‟Egidios failed to show prejudice as a result of City‟s inaction, the trial court
found that the D‟Egidios failed to present evidence to satisfy one of the four
elements necessary to apply estoppel: that the D‟Egidios relied upon City‟s
inaction to their detriment. “„The essence of an estoppel is that the party to
be estopped has by false language or conduct “led another to do that which he
[or she] would not otherwise have done and as a result thereof that he [or
she] has suffered injury.” [Citation.]‟ [Citation.]” (Steinhart v. County of Los
Angeles (2010) 47 Cal.4th 1298, 1315.) The only alleged injury the D‟Egidios
24
identify in their appellants‟ opening brief is that they now face a monetary
judgment (i.e., attorney fees owed to City) and have lost the only income they
earn from their property. But those alleged injuries were not caused by the
D‟Egidios‟ reliance on City‟s inaction; they were caused by the fact that their
billboard was not lawfully erected and therefore is a public nuisance (see
§ 5461 [“All advertising displays which are placed or which exist in violation
of the provisions of this chapter are public nuisances and may be removed by
any public employee as further provided in this chapter”]), which City sought
to abate over the D‟Egidios‟ opposition. Therefore, the trial court did not err
in concluding that, based upon the undisputed facts, estoppel did not apply.
The trial court also did not err in finding there was no evidence
presented showing that the D‟Egidios were prejudiced by City‟s delay in
seeking to have the billboard removed as a public nuisance. “[T]he
affirmative defense of laches requires unreasonable delay in bringing suit
„plus either acquiescence in the act about which plaintiff [or cross-
complainant] complains or prejudice to the defendant [or cross-defendant]
resulting from the delay.‟ [Citation.] Prejudice is never presumed; rather it
must be affirmatively demonstrated by the defendant in order to sustain his
burdens of proof and the production of evidence on the issue. [Citation.]”
(Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 624.)
The D‟Egidios‟ contention that their evidence that the delay resulted in
the loss of evidence was sufficient to raise a triable issue regarding prejudice
is unconvincing. The undisputed evidence presented to the trial court
established that the change in use of the billboard in 1987 caused the
billboard to be in violation of the Los Angeles County Code, and the D‟Egidios
never sought to get County‟s approval of the billboard. The D‟Egidios do not
explain, and we cannot fathom, what evidence there could have been that
25
was lost during the delay that could show that the billboard did not violate
the County Code. Therefore, the trial court correctly found that laches did
not apply.
D. The Award of Attorney Fees Was Allowed Under the Statutes
The D‟Egidios contend the trial court should not have awarded attorney
fees to City because doing so penalized them for seeking guidance in the form
of declaratory relief regarding an inconsistent statutory scheme. They also
contend the court erred by awarding fees because the basis for City‟s claim
that the billboard was a public nuisance was “a technicality and fiction” or
pretextual. Neither contention prevails.
With regard to the first contention, we agree with the trial court‟s
observation that City is entitled by statute to recover its attorney fees
incurred in prosecuting its nuisance claim,10 and the fact that City also
prevailed on the D‟Egidios‟ declaratory relief claim does not mean that City
no longer is entitled to its attorney fees on its nuisance claim. As the trial
court noted, City‟s work opposing the D‟Egidios‟ declaratory relief claim was
for the most part indistinguishable from its work prosecuting its nuisance
claim, since the issues involved in both cases were identical. However,
10
By statute, attorney fees are allowed to the prevailing party as costs
when authorized by contract, statute, or law (Code Civ. Proc., § 1033.5, subd.
(a)(10)), and a city may, by ordinance, provide for the recovery of attorneys‟
fees by the prevailing party in any action to abate a nuisance (Gov. Code,
§ 38773.5, subd. (b)). Santa Clarita Municipal Code section 1.01.220(D)
provides that, “[p]ursuant to Government Code Section 38773.5, in any action
. . . brought to abate a public nuisance, the prevailing party will be entitled to
recover attorneys‟ fees; provided, that attorneys‟ fees will only be available in
those actions or proceedings in which the City has provided notice at the
commencement of such action . . . that it intends to seek and recover its own
attorneys‟ fees. In no action . . . shall an award of attorneys‟ fees exceed the
amount of reasonable attorneys‟ fees incurred by the City in the action. . . .”
26
because City‟s municipal code allows recovery of attorney fees to the
prevailing party in nuisance cases only when City has provided notice that it
will be seeking to recover its attorney fees, the court properly limited the fee
award to attorney fees incurred after City filed its cross-complaint. We find
no error in this respect.
Nor do we find error in the trial court‟s rejection of the D‟Egidios‟
contention that City was not entitled to attorney fees because the nuisance
claim was a “technicality” and pretextual. In making this argument, the
D‟Egidios rely upon Hurwitz v. City of Orange (2004) 122 Cal.App.4th 835,
852-853 (Hurwitz). Their reliance is misplaced.
In Hurwitz, the City of Orange violated a preliminary injunction not to
build in a certain area or otherwise interfere with the property owner‟s
existing parking access. (Hurwitz, supra, 122 Cal.App.4th at p. 838.) After it
built a permanent curb that entirely foreclosed the property owner‟s access to
his parking space, the city held a hearing, which was not properly noticed
under the city‟s ordinance, and declared the use of the parking space a
nuisance. (Id. at pp. 841-842.) The city subsequently filed a cross-complaint
in eminent domain in the ongoing injunctive relief case. (Id. at p. 842.)
Following trial, the trial court ruled that the use of the parking space was not
a nuisance that the city could summarily and unilaterally abate, and
awarded the property owner damages for the decline in value to his property.
(Ibid.)
On appeal, the appellate court rejected the city‟s argument that the
damage award was improper because the city could have brought a nuisance
abatement action, and the trial court would have been obligated to find there
was a nuisance because the city council‟s declaration of a nuisance was
supported by the testimony of a traffic consultant. (Hurwitz, supra, 122
27
Cal.App.4th at p. 852.) The appellate court explained that “[t]here is a
central flaw in [the city‟s] theory. It assumes that local public entity
determinations of nuisance are absolutely immune from judicial scrutiny,
such that even a transparently flimsy, transparently pretextual finding of
nuisance would be enough to immunize the entity from any obligation to pay
compensation. [¶] That is simply too broad a model of nuisance law. And, if
there ever was a case where a city‟s finding of „nuisance‟ could be found by a
trial court to be pretextual (as a cover for the substantive taking of property,
or as here, a property right), this is it. . . . [T]he sequence [of events] shows
that the city was not using its police power to abate a nuisance. Rather, it
was trying to use its power to abate nuisances as a fig leaf to hide the rather
naked expropriation of an existing property right.” (Id. at pp. 852-853.)
In the present case, City did not unlawfully declare a nuisance, without
proper notice, after it had already unilaterally abated it, as a pretext to avoid
having to compensate the D‟Egidios. Instead, City brought an action asking
the court to declare the billboard a public nuisance, and the trial court did so.
Therefore, the trial court properly awarded City attorney fees on its nuisance
claim.
//
//
//
//
//
//
//
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DISPOSITION
The judgment and order awarding attorney fees are affirmed.
City shall recover its costs on appeal.
CERTIFIED FOR PUBLICATION
WILLHITE, Acting P. J.
We concur:
MANELLA, J.
COLLINS, J.
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