The opinion
Filed 2/27/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
CORY SPENCER et al., B309225
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC629596)
v.
CITY OF PALOS VERDES
ESTATES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Carolyn Kuhl, Judge; Amy D. Hogue, Judge.
Reversed.
Hanson Bridgett, Gary A. Watt, Kurt A. Franklin, Lisa M.
Pooley, Samantha D. Wolff, Sean G. Herman, Ellis F. Raskin;
Otten Law and Victor J. Otten for Plaintiffs and Appellants.
Kutak Rock, Edwin J. Richards, Antoinette P. Hewitt,
Kevin J. Grochow and Rebecca L. Wilson for Defendant and
Respondent.
Rob Bonta, Attorney General, Daniel A. Olivas, Assistant
Attorney General and Jamee Jordan Patterson and Jennifer W.
Rosenfeld, Deputy Attorney General, for California Coastal
Commission as Amicus Curiae.
__________________________
INTRODUCTION
Lunada Bay is a premier surf spot located in, and owned
by, the City of Palos Verdes Estates. According to plaintiffs, City
residents and officials are not welcoming to outsiders and are
sometimes openly hostile towards them. The Lunada Bay Boys
(Bay Boys) are a group of young and middle-aged men, local to
the City, who consider themselves to be the self-appointed
guardians of Lunada Bay. One of their tenets is to keep outsiders
away from the surf location. They accomplish this through
threats and violence. Plaintiffs are (1) two non-locals who
encountered harassment by the Bay Boys when they tried to surf
Lunada Bay, and (2) a non-profit dedicated to preserving coastal
access. They brought suit against the Bay Boys, some of its
individual members, and the City itself, for conspiracy to deny
access under the California Coastal Act. (Pub. Resources Code,
§ 30000 et seq.) 1 We previously affirmed the denial of an anti-
SLAPP motion brought by a number of the individual defendants.
(Spencer v. Mowat (2020) 46 Cal.App.5th 1024.) We now address
the City’s successful motion for judgment on the pleadings.
Plaintiffs allege that the City conspired with the Bay Boys
essentially to privatize Lunada Bay, depriving nonlocals of
access, in at least two ways: (1) by allowing the Bay Boys to build
on City property a masonry and wood structure, known as the
Rock Fort, which the Bay Boys used as their hangout; and
(2) with knowledge of the Bay Boys’ conduct, being complicit in
the Bay Boys’ harassing activities and tacitly approving them.
The trial court granted the City judgment on the pleadings,
on the joint bases that: (1) merely allowing the Rock Fort to be
1 All further statutory references are to the Public Resources
Code unless otherwise stated.
2
built was not actionable against the City, in the absence of
allegations that the City itself performed its construction or
entered into an advance agreement that it be built; and
(2) condoning the Bay Boys’ acts of harassment is not a Coastal
Act violation as neither harassment itself, nor standing by while
it occurs, is conduct reached by the Act. 2 We reverse on both
theories.
FACTUAL AND PROCEDURAL BACKGROUND
1. Overview of the Litigation Against the City 3
The operative complaint is the fourth amended complaint. 4
The fourth amended complaint did not come about exclusively by
adversarial law and motion practice. Plaintiffs’ second amended
2 The California Coastal Commission filed an amicus curiae
brief that argues for “reversal of the trial court’s entry of
judgment for the City.” The City has filed an answer to the
Commission’s amicus brief.
3 The only cause of action asserted against the City is the
violation of the Coastal Act. In this opinion, we are not concerned
with any of the defendants other than the City, nor any of the
non-Coastal Act causes of action alleged against those
defendants. The parties have informed us, however, that
plaintiffs have reached settlements with a number of the
individual Bay Boy defendants.
4 The procedural history precedes the filing of the initial
complaint in this action. This lawsuit actually began in federal
court, but the district court abstained from resolving the Coastal
Act cause of action, so plaintiffs refiled in state court. The
operative complaint is entitled: “FOURTH AMENDED CLASS
ACTION COMPLAINT . . . .” No class action allegations were
asserted against the City.
3
complaint, including exhibits, exceeded 200 pages. The court, on
its own motion, “in an effort to more effectively manage the case,”
issued an order granting plaintiffs 10 days in which to file a third
amendment complaint “that (excluding exhibits) is not longer
than 25 pages.” The court explained, “From the Court’s point of
view, the purpose of a complaint is to plead ultimate facts
sufficient to state actionable claims and give notice to the
defendants of the claims alleged against them. As drafted, the
Second Amended Complaint is repetitive and includes
information that goes well beyond the ultimate facts.”
Plaintiffs complied, eventually resulting in the operative
complaint. 5 The City answered with a general denial and
affirmative defenses. Thereafter, it moved for judgment on the
pleadings. In opposition to the motion, plaintiffs sought judicial
notice of their second amended complaint, as illustrative of the
complete facts they could plead. Plaintiffs explained, “To the
extent the court now believes Plaintiffs need to provide more
facts, the Plaintiffs can add these and others back in.” 6
The court ultimately granted the motion for judgment on
the pleadings, with leave to amend the complaint in a manner
not addressed by plaintiffs in the operative, or any prior,
5 The third amended complaint was challenged by a partially
successful motion to strike punitive damages alleged against the
individual defendants. This resulted in the operative fourth
amended complaint; the last amendment had no effect on the
allegations against the City.
6 The City opposed plaintiffs’ request for judicial notice in the
trial court. The record on appeal does not reflect any ruling on
the motion. The parties do not address the trial court judicial
notice request in their briefs.
4
complaint (specifically, to allege the City’s involvement in the
initial construction of the Rock Fort). Plaintiffs declined to do so,
and the court entered judgment on the pleadings.
On appeal, the parties dispute whether – and to what
extent – plaintiffs can rely on the allegations of their second
amended complaint in their challenge to the judgment on the
pleadings. While the City is correct that the allegations of that
complaint have been superseded, it is also clear that those
allegations were removed because the trial court believed
plaintiffs had pleaded “information that goes well beyond the
ultimate facts,” not due to any ruling on a demurrer or motion to
strike. In addition, several exhibits were attached to the earlier
pleading, which were not disputed in terms of authenticity, and
also appear to have been removed from subsequent pleadings
solely in order to comply with the court’s request as to length.
Based on these circumstances, from time to time, we refer to the
allegations in the second amended complaint to provide context.
2. Allegations of the Operative Complaint
The premise of plaintiffs’ complaint against the City is that
the Coastal Act requires a permit for all “development.” The
Coastal Act defines “development” broadly, and includes, a
“change in the intensity of use of water, or of access thereto;
construction, reconstruction, demolition, or alteration of the size of
any structure . . . .” (§ 30106, italics added.) There are two
claimed “development activities” at issue in this appeal: (1) the
construction of the Rock Fort (“construction . . . of any structure”)
and (2) the harassment conducted by the Bay Boys (activities
resulting in a “change in the . . . use of water or of access
thereto”).
5
Plaintiffs allege the City violated the Coastal Act by not
obtaining a Coastal Development Permit for these two
“development activities” occurring on its property at Lunada Bay.
Plaintiffs allege these Coastal Act violations entitle plaintiffs to
declaratory and injunctive relief, and render the City liable for
civil and daily fines payable to the State.
A. Allegations Relating to the Rock Fort 7
As to the Rock Fort, plaintiffs allege the Bay Boys “built
and maintained the illegal Rock Fort. The City was long aware of
it and only removed the structure in late 2016, after Plaintiffs
brought attention in [their federal] lawsuit. With City
knowledge, the Bay Boys have since undertaken efforts to rebuild
a structure in its place on City property.” In their second
amended complaint, plaintiffs had alleged that the Rock Fort
“serves as the headquarters for the Bay Boys to harass visitors.”
The California Coastal Commission was created by the
Coastal Act, and has “primary responsibility for the
implementation” of the Act. (§ 30330.) The operative complaint
alleges that, on January 21, 2016, the Coastal Commission wrote
then City Police Chief Jeff Kepley to advise him that, among
other things, the City must address the unpermitted Rock Fort.
The letter itself was attached to the second amended complaint.
The letter, written by an Enforcement Analyst at the
Commission, explains that the Commission had received reports
7 Plaintiffs briefly allege a few other physical developments
in addition to the Rock Fort, including a campfire ring, two trails,
and other developments which plaintiffs were still investigating.
As we conclude judgment on the pleadings should not have been
granted with respect to the Rock Fort, we need not address the
other alleged physical developments, and express no opinion on
them.
6
“of unpermitted structures, including stone forts, constructed on
the shoreline of Lunada Bay.” The Enforcement Analyst goes on
to explain that “the construction of a structure” constitutes a
“development that is within the power of the City to address” and
which, if not authorized, would constitute a Coastal Act violation.
The operative complaint alleges a June 6, 2016 follow-up
letter from the Enforcement Analyst, this time addressed to the
City Manager. This letter, too, was attached to the second
amended complaint. It confirms there had been a meeting
between City staff and Commission staff where, among other
things, Commission staff had inspected “the unpermitted stone
fort.” The letter restates the Commission’s position that “in order
to resolve the issue of the unpermitted stone fort, the City must
obtain a Coastal Development Permit to either remove or retain
the stone fort. As we conveyed to you at the meeting, given the
inconsistency with policies of the Coastal Act . . . , it is not likely
that staff could support approval of a private structure on the
shoreline, such as in the location of the stone fort.” The
Enforcement Analyst went on to explain that, in order for a
request to retain the Rock Fort, even if reduced in size, to be
favorably considered, it should be accompanied by a proposal to
institute “a comprehensive public access program” that, among
other things, clearly identifies the structure “as a public amenity
and open to all.” The Commission requested that the City begin
the process of obtaining a Coastal Development Permit “in order
to as quickly as possible start to resolve the issue of the
unpermitted stone fort and in doing so eliminate any negative
effect it may have as a quasi-private structure on public access to
the coast.”
7
The operative complaint alleges that the City ultimately
“issued a memorandum recommending that a public hearing [be
held] to discuss removal of the unpermitted Rock Fort.” Again,
the actual documentation was attached to the second amended
complaint. A memorandum was prepared for a July 12, 2016
City Council meeting, discussing the issue. The memorandum
describes the Rock Fort as a “patio.” It explains, “The structure
was constructed without City approval by unidentified persons.
It is believed that members of the public approximately 30 years
ago began constructing the stone retaining walls and a patio
structure along the northwestern section of Lunada Bay.[ 8] The
location is adjacent to the closest access point to the surf and
provides a viewing spot of the coast and surfing activity. Over
time, a barbeque, table, seating and shade structures were added.
The patio structure is a congregation area. Concerns over
‘localism’ caused by certain individuals dissuading or
intimidating the general public from enjoying Lunada Bay
resulted in the City adopting an ordinance in 2002 addressing the
use of public beaches and prohibiting conduct that blocks access
[citation]. In 2002, the City also removed the shade structure
and other components of the unauthorized patio. The stone
retaining walls and raised stone floor were left in place.” The
8 In its motion for judgment on the pleadings, and again on
appeal, the City argues that there are no facts alleged to show
that the Rock Fort was constructed after the effective date of the
Coastal Act. The Coastal Act was enacted in 1976 (§ 30000), so
became effective January 1, 1977. The City’s 2016 memorandum
suggests construction was started “approximately 30 years ago,”
or 1986, nearly a decade after the effective date of the Coastal
Act.
8
memorandum indicated that the City recently obtained a
geotechnical report which confirmed that the Rock Fort could be
safely removed. The memo concluded by recommending seeking
a permit for the Rock Fort’s immediate removal.
Plaintiffs allege in the operative complaint that the City
removed the Rock Fort “in late 2016.” 9 They further allege,
“With City knowledge, the Bay Boys have since undertaken
efforts to rebuild a structure in its place on City property.”
B. Allegations Related to Bay Boys’ Harassment
Plaintiffs allege the Bay Boys have “intentionally and
maliciously blocked public access to the beach at Lunada Bay for
over 40 years. In what is a multi-generational practice of
extreme ‘localism,’ the Bay Boys use physical violence, threats of
bodily harm, vandalism to vehicles, verbal harassment and
intimidation to prevent access to the public beach. The City . . .
has long been aware of the unlawful exclusion of outsiders and
has conspired with the Bay Boys to ‘protect’ Lunada Bay.”
Specifically, plaintiffs allege that, “[w]ith City knowledge and
complicity, the individual Defendant members of the Bay Boys
conspire to keep the public away by: (1) physically obstructing
outsiders’ access to the beach trails; (2) throwing rocks;
(3) running people over with surfboards in the water;
(4) punching outsiders; (5) stealing outsiders’ wallets, wetsuits,
and surfboards; (6) vandalizing vehicles, slashing tires, and
waxing pejorative slurs onto vehicle windows; (7) levying threats;
and (8) intimidating outsiders with pejorative and other verbal
insults, gestures, and threats of serious injury.”
9 It is not disputed that the City removed the Rock Fort. The
record does not indicate the City obtained a permit to do so.
9
In the operative complaint (with greater detail in their
second amended complaint), plaintiffs allege the Bay Boys
planned and effectuated a strategy of harassing, threatening, and
assaulting nonlocal beachgoers in order to keep them away from
Lunada Bay. On appeal from a motion for judgment on the
pleadings, we assume these facts are true. (Shea Homes Limited
Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246,
1254 [in reviewing a judgment on the pleadings, all material
factual allegations are accepted as true].)
In their briefs, the parties quarrel about the allegations
that the City is complicit in the Bay Boys’ harassment. The
fourth amended complaint alleges that it is. Indeed, the
complaint, no less than five times, alleges that the Bay Boys
acted with City “complicity.” A section of the complaint entitled,
“The City’s Response to (and Complicity in) the Bay Boys’ Acts of
Exclusion” alleges in substance the following: In 2015, the City
hired Jeff Kepley as its new chief of police. Kepley was quoted in
the Los Angeles Times as saying he was going to mix up the
status quo and make an example of anyone who behaves
criminally at Lunada Bay. City residents, including members of
the Bay Boys, criticized this plan and Chief Kepley
“backtracked.” “In response, rather than hold the Bay Boys
accountable, the City opted for a ‘community policing’ approach to
develop an even cozier relationship with the Bay Boys.” 10
10 To the extent the City argues the allegations of complicity
are conclusory, we disagree. Plaintiffs’ specific allegations of the
police’s community policing approach and cozy relationship with
the Bay Boys are sufficient allegations of ultimate facts. Any
clarification was spelled out in more detail – detail the trial court
found excessive – in the second amendment complaint, e.g. “As
succinctly stated by former City Chief of Police Timm Browne:
10
Plaintiffs also allege in the operative complaint that the
City enforces its laws in a discriminatory manner against
outsiders, while allowing the Bay Boys to continue their
harassment unabated. They alleged, “While no scienter is
required to hold the City accountable for violations, the City has
long known about the Coastal Act violations, which continue in
Lunada Bay and other areas of [the City]. For decades, . . . the
City has condoned and conspired with the Individual Defendants’
and Defendant Bay Boys’ threatening behavior discouraging
outsiders from accessing Lunada Bay, and to exclude under-
represented persons from its coastline by targeting them with
unfavorable treatment for traffic citations, parking tickets, and
towed vehicles.”
3. Motion for Judgment on the Pleadings
The operative complaint alleged that the City was liable for
Coastal Act violations, in that both the Rock Fort and the
harassing conduct constituted “development activity” for which a
Coastal Development Permit was required. On February 14,
2020, the City moved for judgment on the pleadings on the basis
that neither the Rock Fort nor the harassment constituted
“development” within the meaning of the Coastal Act.
[¶] ‘People here do not like outsiders in general. Umm, I mean,
they pay a price to live here. Umm, they have beautiful views of
the ocean from most of the homes in the City . . . so, uh, they are
protective of their community as a whole, umm, I mean surfers or
non-surfers.’ ”
11
In support of its motion, the City sought judicial notice of a
number of documents, including the nearly 9000-page legislative
history of the Coastal Act. 11
On July 14, 2020, following briefing and a hearing, the
court issued its order granting the motion for judgment on the
pleadings, with leave to amend. The court explained that it
agreed generally with the City that the Coastal Act creates
liability only against a developer who fails to comply with the
permitting process, not a city on whose land the development
sits. As to the Rock Fort, the court granted leave to amend to
allege that City agents or employees built the Rock Fort “and/or
entered into advance agreements to have other defendants
construct” it. As to harassment, the court concluded that
development under the Coastal Act related to “ ‘the use of
buildings, structures and land’ as between . . . competing uses,”
and not “interpersonal conduct.” The court stated that even if
plaintiffs had alleged City employees themselves had assaulted
them, this would not constitute a Coastal Act violation, because
“it is not ‘development’ under the Coastal Act even if the
perpetrator is motivated by a desire to deny access to or use of
water.”
Plaintiffs declined to amend their complaint to allege direct
City involvement in the construction of the Rock Fort, and
11 The trial court does not appear to have ruled on the
request. On appeal, the City asks us to take judicial notice of the
legislative history of the Coastal Act, as well as an additional
document. Plaintiffs also requested judicial notice of documents
on appeal: we previously granted one request and deferred the
second. We now grant the parties’ outstanding requests for
judicial notice; however, we disregard all documents not relevant
to our disposition of the appeal.
12
judgment was entered in the City’s favor. Plaintiffs filed a timely
notice of appeal. 12
DISCUSSION
After discussing the standard of review, we provide an
overview of the Coastal Act, its goals, and the statutory definition
of “development.” Next, we address the Rock Fort, and conclude
that the City may be liable for its maintenance on City property
when no Coastal Development Permit had been obtained. Then,
we turn to the City’s potential Coastal Act liability for Bay Boy
harassment and again conclude that, at this early stage of
litigation, the City has not, as a matter of law, defeated liability.
1. Standard of Review
“A motion for judgment on the pleadings is the functional
equivalent of a general demurrer. [Citation.] Ordinarily, a
general demurrer does not lie as to a portion of a cause of action,
and if any part of a cause of action is properly pleaded, the
demurrer will be overruled.” (Fire Ins. Exchange v. Superior
Court (2004) 116 Cal.App.4th 446, 452.) “Judgment on the
pleadings is akin to a demurrer and is properly granted only if
the complaint does not state facts sufficient to state a cause of
action against that defendant. [Citations.] The grounds for the
motion must appear on the face of the complaint, and in any
matters subject to judicial notice. [Citation.] The court accepts
12 While the appeal of the City’s judgment on the pleadings
was pending, a number of the Bay Boys sought summary
judgment in their favor, addressing, among other things,
plaintiffs’ Coastal Act cause of action against them. Plaintiffs
filed a petition for writ of supersedeas to stay the summary
judgment hearings, pending resolution of this appeal. On
August 31, 2021, we denied the petition. Those summary
judgment motions are not before us.
13
as true all material factual allegations, giving them a liberal
construction, but it does not consider conclusions of fact or law,
opinions, speculation, or allegations contrary to law or judicially
noticed facts. [Citations.] Appellate courts review the record de
novo to determine whether the complaint states a cause of action
as a matter of law.” (Shea Hones Limited Partnerhip v. County of
Alameda, supra, 110 Cal.App.4th at p. 1254.)
2. The Coastal Act
“The Coastal Act ‘was enacted by the Legislature as a
comprehensive scheme to govern land use planning for the entire
coastal zone of California. The Legislature found that “the
California coastal zone is a distinct and valuable natural resource
of vital and enduring interest to all the people”; that “the
permanent protection of the state’s natural and scenic resources
is a paramount concern”; that “it is necessary to protect the
ecological balance of the coastal zone” and that “existing
developed uses, and future developments that are carefully
planned and developed consistent with the policies of this
division, are essential to the economic and social well-being of the
people of this state . . . .” [Citation.]’ [Citation.] The Coastal Act
is to be ‘liberally construed to accomplish its purposes and
objectives.’ ” (Pacific Palisades Bowl Mobile Estates, LLC v. City
of Los Angeles (2012) 55 Cal.4th 783, 793-794 (Pacific Palisades).)
The Coastal Act itself begins by identifying six purposes,
which are “the basic goals of the state for the coastal zone.”
(§ 30001.5.) These include, “Maximize public access to and along
the coast and maximize public recreational opportunities in the
coastal zone consistent with sound resource conservation
principles and constitutionally protected rights of private
property owners.” (§ 30001.5, subd. (c).) “[A] core principle of the
14
[Coastal] Act is to maximize public access to and along the coast
as well as recreational opportunities in the coastal zone.” (San
Diego Unified Port Dist. v. California Coastal Com. (2018)
27 Cal.App.5th 1111, 1129; see also Keen v. City of Manhattan
Beach (2022) 77 Cal.App.5th 142, 145 [the Coastal Act defined
the Commission’s mission “to protect the coast and to maximize
public access to it”].) 13
A large part of the Coastal Act is its permit scheme.
“Under it, with exceptions not applicable here, any person
wishing to perform or undertake any development in the coastal
zone must obtain a coastal development permit ‘in addition to
obtaining any other permit required by law from any local
government or from any state, regional, or local agency . . . .’ ” 14
(Pacific Palisades, supra, 55 Cal.4th at p. 794.)
“The Coastal Act expressly recognizes the need to ‘rely
heavily’ on local government ‘[t]o achieve maximum
responsiveness to local conditions, accountability, and public
accessibility . . . .’ [Citation.] As relevant here, it requires local
governments to develop local coastal programs, comprised of a
land use plan and a set of implementing ordinances designed to
promote the act’s objectives of protecting the coastline and its
resources and of maximizing public access. [Citations.] Once the
California Coastal Commission certifies a local government’s
13 The amicus brief filed by the Coastal Commission states
the policy this way: “Maximizing public access to the coast for all
members of the public, and protecting the State’s coastal
resources, are core purposes of the Coastal Act and central to the
mission of the Commission.”
14 Local governments are “person[s]” under the Coastal Act.
(§ 30111.)
15
program, and all implementing actions become effective, the
commission delegates authority over coastal development permits
to the local government.” (Pacific Palisades, supra, 55 Cal.4th at
p. 794.) However, “[u]nder the Coastal Act, the local coastal
program and development permits issued by local agencies are
not just matters of local law. Instead, they embody state policy.
A fundamental purpose of the Coastal Act is to ensure that state
policies prevail over local government concerns.” (Kalnel
Gardens, LLC v. City of Los Angeles (2016) 3 Cal.App.5th 927,
940.)
Even though the local government has authority over
Coastal Development Permits after approval of its local coastal
program, that authority is not absolute. The Coastal Act
provides that an action taken by a local government on a permit
application may be appealed to the Commission for
“developments approved . . . between the sea and the first public
road.” (§ 30603, subd. (a)(1)). In addition, some lands, including
tidelands and “public trust lands” remain outside the initial
permitting jurisdiction of the local government; applications for
permits for development on those lands must be made directly to
the Commission. 15 (§ 30519; Citizens for South Bay Coastal
Access v. City of San Diego (2020) 45 Cal.App.5th 295, 308.)
Chapter 3 of the Coastal Act sets forth the policies that
“shall constitute the standards” by which “the permissibility of
15 Here, the City’s local coastal program was certified in 1991,
so it obtained original permitting jurisdiction. However, the
Commission retained such jurisdiction on “public trust” lands. As
we discuss, there is some question on appeal as to whether the
developments at issue were within the original permitting
jurisdiction of the City or the Commission.
16
proposed developments” are to be determined. (§ 30200.) Article
2 of that Chapter is “Public Access.” It provides, among other
things, that “maximum access, which shall be conspicuously
posted, and recreational opportunities shall be provided for all
the people consistent with public safety needs and the need to
protect public rights, rights of private property owners, and
natural resource areas from overuse.” (§ 30210.) “Development
shall not interfere with the public’s right of access to the sea
where acquired through use or legislative authorization,
including, but not limited to, the use of dry sand and rocky
coastal beaches to the first line of terrestrial vegetation.”
(§ 30211.) Case authority confirms the importance of preserving
public access to the coast. “[T]he concerns placed before the
Legislature in 1976 were more broad-based than direct physical
impedance of access. For this reason, we conclude the public
access and recreational policies of the Coastal Act should be
broadly construed to encompass all impediments to access,
whether direct or indirect, physical or nonphysical.” (Surfrider
Foundation v. California Coastal Com. (1994) 26 Cal.App.4th
151, 158 [concerning the installation of physical devices to collect
parking fees; the devices did not themselves impede access, but
the fact that one must deposit money into them indirectly did
so].) Another panel of this court held that it was reasonable for
the Commission to consider whether a development “would give
the appearance” that public land was private land, as that
“perception would lead to less public use of that part of the
beach.” (Greene v. California Coastal Com. (2019) 40 Cal.App.5th
1227, 1235-1236 [when plaintiffs sought to develop their property
very close to the seaward property line, it was reasonable for the
Commission to consider whether that development would give
17
the appearance that the public beach walk was actually privately
owned].)
A Coastal Development Permit must be obtained by “any
person . . . wishing to perform or undertake any development in
the coastal zone.” (§ 30600, subd. (a).) One of the key issues in
this case is what is meant by “development” in the Coastal Act.
The Act itself provides a definition: “ ‘Development’ means, on
land, in or under water, the placement or erection of any solid
material or structure; discharge or disposal of any dredged
material or of any gaseous, liquid, solid, or thermal waste;
grading, removing, dredging, mining, or extraction of any
materials; change in the density or intensity of use of land,
including, but not limited to, subdivision pursuant to the
Subdivision Map Act . . . , and any other division of land,
including lot splits, except where the land division is brought
about in connection with the purchase of such land by a public
agency for public recreational use; change in the intensity of use
of water, or of access thereto; construction, reconstruction,
demolition, or alteration of the size of any structure, including
any facility of any private, public, or municipal utility; and the
removal or harvesting of major vegetation other than for
agricultural purposes, kelp harvesting, and timber operations
. . . . [¶] As used in this section, ‘structure’ includes, but is not
limited to, any building, road, pipe, flume, conduit, siphon,
aqueduct, telephone line, and electrical power transmission and
distribution line.” (§ 30106, italics added.) We will discuss the
italicized language later, in the context of our discussion of
whether harassment can constitute development. For present
purposes, what is important is that our Supreme Court has
acknowledged that “development” under the Act is to be given an
18
“expansive interpretation,” and “goes beyond ‘what is commonly
regarded as a development of real property’ [citation] and is not
restricted to activities that physically alter the land or water.”
(Pacific Palisades, supra, 55 Cal.4th at p. 796.)
3. The Rock Fort
As the Rock Fort was indisputably a “structure,” by law it
qualified as a “development” under the Coastal Act. (See LT-WR,
L.L.C. v. California Coastal Com. (2007) 152 Cal.App.4th 770,
804-805 [a structure is a development by virtue of being a
structure].) Therefore, a permit was required. 16 But the Act
requires a permit be obtained only by “any person . . . wishing to
perform or undertake any development in the coastal zone.”
(§ 30600, subd. (a).) The trial court concluded that, since it was
not alleged that the City undertook the construction of the Rock
Fort, the City was not required to obtain a permit. As we
16 We note that it is unclear from whom a permit should have
been sought for the Rock Fort – that is, whether it was within the
City’s original permit jurisdiction or the Commission’s. Whether
the Rock Fort was on “public trust” land (Commission’s
jurisdiction) turns on where it was located vis-à-vis the mean
high tide line, something not discussed in the pleadings or
documents judicially noticed. Plaintiffs assert that the exact
location of the Rock Fort is uncertain on presently known facts,
but admit that the Rock Fort was likely located on the non-trust
(City jurisdiction) side of the line. The City, for its part, chose not
to address the issue, and argued instead that we are bound to
accept plaintiffs’ earlier allegations that the trust lands include
the area on which the Rock Fort sat. The question is largely
academic. Even if the Rock Fort was located on City-owned land,
subject to City permitting, any City permit would have been
appealable to the Commission. (§ 30603, subd. (a).)
19
explain, case authority postdating the trial court’s ruling rejects
this interpretation of the Coastal Act. (Lent v. California Coastal
Com. (2021) 62 Cal.App.5th 812, 832 (Lent).)
To properly understand Lent, we first consider Leslie Salt
Co. v. San Francisco Bay Conservation etc. Com. (1984)
153 Cal.App.3d 605 (Leslie Salt). The Leslie Salt case was
concerned not with the Coastal Act, but the McAteer-Petris Act,
“which created the San Francisco Bay Conservation and
Development Commission (BCDC) and defines its jurisdiction
and powers.” (Leslie Salt, at pp. 608-609.) The Act at issue in
Leslie Salt required “any person or governmental agency wishing
to place fill” on land within the BCDC’s jurisdiction to obtain a
permit. (Id. at p. 612 & fn. 7.) Further, it provided for cease and
desist orders for any person “that ‘has undertaken, or is
threatening to undertake, any activity’ that requires a
permit . . . .” (Id. at p. 612.) Leslie Salt owned property within
the BCDC’s jurisdiction. Over a number of years, several
hundred tons of fill was dumped on its property, without its
knowledge and without a permit. (Id. at pp. 609-610.) When the
BCDC issued a cease and desist order to Leslie Salt, Leslie Salt
successfully challenged the order in the trial court, arguing that
Leslie Salt was a mere landowner who had not placed the fill
itself. (Id. at p. 611.) The Court of Appeal reversed, with a two-
part analysis. (Ibid.)
First, the Leslie Salt court held that imposing liability on
landowners was within the intent of the Costal Act. “To deny
BCDC the power to enforce the act by issuance of cease and
desist orders against landowners whose property contains fill
placed there by others in violation of the act would ‘frustrate the
effectiveness of the act’ [citation] by materially impairing BCDC’s
20
ability to prevent and remedy haphazard and detrimental filling
of the Bay. [Citations.] Unless the responsible person were
‘caught in the act’ of placing the fill, or the landowner were
proved to have authorized its placement by others, BCDC would
be unable to order removal of the fill. Such a narrow rendition of
BCDC’s authority ascribes no significance to a landowner’s
ability to prevent the placement of fill on his land by others and,
if adopted by the courts, would diminish the incentive for
landowners to manage their properties so as to reduce the
prospect of illegal fill, a result that is also clearly repugnant to
the legislative purpose.” (Leslie Salt, supra, 153 Cal.App.3d at
p. 617, fn. omitted.) The court construed the statutory language
allowing cease and desist orders against those who have
“undertaken or [are] threatening to undertake” prescribed
activities as referring “not simply to one responsible for the
actual placement of unauthorized fill but also to one whose
property is misused by others for that purpose and who even
passively countenances the continued presence of such fill on his
land.” (Id. at p. 618.)
The second part of the Leslie Salt analysis was an analogy
to common law nuisance principles. Under common law, a
possessor of land may be liable for a nuisance caused by an
abatable artificial condition on its land, if the possessor knows or
should know of the condition and has failed to take reasonable
steps to abate it. (Leslie Salt, supra, 153 Cal.App.3d at pp. 619-
620.) “Thus, whether the context be civil or criminal, liability
and the duty to take affirmative action flow not from the
landowner’s active responsibility for a condition of his land that
causes widespread harm to others or his knowledge of or intent to
21
cause such harm but rather, and quite simply, from his very
possession and control of the land in question.” (Id. at p. 622.)
In its ruling granting the City judgment on the pleadings,
the trial court distinguished Leslie Salt because that case did not
involve the Coastal Act.
While plaintiffs’ appeal was pending, Division Seven of this
District recognized, in Lent, that the Coastal Act involved “nearly
identical statutory language” as the law at issue in Leslie Salt,
and required the same result. (Lent, supra, 62 Cal.App.5th at
p. 833.) Lent involved a beachfront house, with an easement
along the side for public access. The prior owners of the home
blocked the easement with new construction prior to selling it to
the Lents. When the Commission subsequently asked the Lents
to remove the offending structures, the Lents refused. The
Commission issued a cease and desist order, and, after a hearing,
$4 million in penalties. On the Lents’ challenge, the Court of
Appeal affirmed the Commission’s orders. (Id. at pp. 824-826.)
The Lents argued that “an owner who merely purchases property
containing unpermitted structures, but who did not build the
structures, does not undertake activity that requires a permit
under the Coastal Act.” (Id. at p. 831.) The court disagreed,
holding, “an owner who maintains a development on his or
property ‘undertakes activity’ that requires a permit for purpose
of section 30810,[ 17] as does an owner who maintains a
17 Section 30810 allows the Commission to issue a cease and
desist order if it “determines that any person or governmental
agency has undertaken, or is threatening to undertake, any
activity that (1) requires a permit from the commission without
securing a permit or (2) is inconsistent with any permit
previously issued by the commission . . . .”
22
development inconsistent with a previously issued permit,
regardless of whether he or she constructed the development.”
(Id. at p. 832.)
In opposition to the Commission’s amicus brief in the
present appeal, the City argues that Lent is distinguishable on a
number of grounds. Specifically, the City claims that Lent’s
holding is limited to development conducted by a prior property
owner in violation of a permit. We are not persuaded. Whether
the improper development was conducted by a prior owner, as in
Lent, or a trespasser, as in Leslie Salt, “an owner who maintains
a development ‘undertakes activity’ that requires a permit . . . .”
(Lent, supra, 62 Cal.App.5th at p. 832.)
The City also argues that Lent is distinguishable because
Lent was a private property owner while the City is a public
entity and Lunada Bay is public property. The City argues that
this is relevant because Lunada Bay is public and the City does
not possess a private landowner’s right to exclude others from its
property. We reject the distinction. The present action is not
concerned with potential exclusion of the Bay Boys from Lunada
Bay, but, rather, with their construction of an unpermitted
structure on City property, which the City allowed in its location
for over 30 years. That the City possessed the ability to remove
the fort is conclusively established by the undisputed fact that
the City did do so. Moreover, the Coastal Act specifically
provides that a city retains its nuisance abatement powers
(§ 30005, subd. (b)) and can, in fact, declare, prohibit, and abate
nuisances on its property without obtaining a Coastal
23
Development Permit. 18 (City of Dana Point v. California Coastal
Com. (2013) 217 Cal.App.4th 170, 174.)
In short, we conclude that plaintiffs have sufficiently
alleged a cause of action that the City, as landowner, violated the
Coastal Act by maintaining the unpermitted Rock Fort on its
property for decades. 19 The court therefore erred in granting
judgment on the pleadings as to that part of the complaint.
4. Bay Boys Harassment
The issue of whether plaintiffs state a cause of action
against the City for Bay Boys harassment involves two questions:
first, whether the alleged Bay Boys harassment constitutes a
development under the Coastal Act; and second, whether the
plaintiffs sufficiently alleged the City conspired with the Bay
Boys to harass non-locals. 20
18 Indeed, it appears that the City, with its police force and
nuisance abatement privileges, may be in a better position to
remove unauthorized developments from its property than most
private landowners.
19 The City argues the Rock Fort was removed in 2016. But
plaintiffs allege the Bay Boys have “undertaken efforts to rebuild
a structure in its place.” Based on this allegation, which the City
did not address in its motion for judgment on the pleadings, the
issue of the Rock Fort has not been resolved.
20 Plaintiffs do not argue that the City is strictly liable for the
harassment on its land, under Leslie Salt and Lent. We save for
another day whether the Leslie Salt analysis could be extended to
third party conduct, rather than artificial conditions on land.
24
A. Harassment May Qualify as a Development Under the
Coastal Act
In its order denying judgment on the pleadings, the trial
court concluded harassment “is not ‘development’ under the
Coastal Act even if the perpetrator is motivated by a desire to
deny access to or use of water.” We are mindful of the expansive
interpretation of the Act in earlier cited cases and conclude the
trial court’s reading of the statute is too narrow.
1. Rules of Statutory Interpretation
“The fundamental rule of statutory construction is to
ascertain the Legislature’s intent in order to give effect to the
purpose of the law. [Citation.] We first examine the words of the
statute and try to give effect to the usual, ordinary import of the
language while not rendering any language surplusage. The
words must be construed in context and in light of the statute’s
obvious nature and purpose. The terms of the statute must be
given a reasonable and commonsense interpretation that is
consistent with the Legislature’s apparent purpose and intention.
[Citation.] Our interpretation should be practical, not technical,
and should also result in wise policy, not mischief or absurdity.
[Citation.] We do not interpret statutes in isolation. Instead, we
read every statute with reference to the entire scheme of law of
which it is a part in order to harmonize the whole. [Citation.] [¶]
If the statutory language is clear, we should not change it to
accomplish a purpose that does not appear on the face of the
statute or from its legislative history. [Citation.] If there is more
than one reasonable interpretation of a statute, then it is
ambiguous. [Citation.] If so, we turn to secondary rules of
construction, including maxims of construction, the legislative
history, and the wider historical circumstances of a statute’s
25
enactment.” (Kalnel Gardens, LLC v. City of Los Angeles, supra,
3 Cal.App.5th at p. 938.)
2. The Language of the Coastal Act Itself
Consistent with the rules of interpretation, we look first to
the statutory definition of “development.” That statute, which we
have quoted in its entirety above, provides, in pertinent part:
“ ‘Development’ means, on land, in or under water, . . . change in
the intensity of use of water, or of access thereto . . . .” (§ 30106.)
We conclude a change in the access to water brought about by an
organized scheme of harassment of, or similar impediment
imposed on, those seeking access may be just as much a change
in access to water as one brought about by a physical
impediment. Accordingly, as the harassment and other conduct
alleged here directly interferes with, and sometimes precludes,
access to the Pacific Ocean, it can be seen to fall within the
language of the statute. Whether there is proof of this state of
affairs is left to another day.
The City disagrees, arguing that such a broad
interpretation of “development” would result in absurdity in
other sections of the Coastal Act. For example, section 30252
discusses “[t]he location and amount of new development,” and
specifies that “new development” shall maintain public access to
the coast by “providing nonautomobile circulation within the
development.” The City rightly points out that interpreting
“development” in this subdivision to include “harassing conduct
towards non-residents” would be absurd, as one cannot “provide
nonautomobile circulation within” harassing conduct. But this
argument proves too much, as other items expressly identified as
development in section 30106, would lead to equally absurd
consequences when substituted for “development” in section
26
30252. Development is defined to include the “discharge or
disposal of any dredged material or of any gaseous, liquid, solid,
or thermal waste.” (§ 30106.) One cannot “provide
nonautomobile circulation within” a disposal of solid waste.
Instead, it is apparent that section 30252 was meant to be limited
to “[n]ew residential, commercial, or industrial development,” as
in section 30250, the first section in the same article.
Instead, other provisions of the Coastal Act confirm that
“development” includes not just physical modifications, but may
include certain conduct as well. Section 30610 identifies “types of
development” which are exempt from permit requirements.
These include “[r]epair or maintenance activities that do not
result in an addition to, or enlargement or expansion of, the
object of those repair or maintenance activities,” and “[a]ny
proposed development which the executive director finds to be a
temporary event which does not have any significant adverse
impact upon coastal resources . . . .” (§ 30610, subds. (d) & (i)(1)).
The fact that (1) repair activities that do not expand the object of
repair and (2) temporary events which do not have any
significant impact on coastal resources are considered
“developments” that would, in the absence of this statute, require
permits, establishes that “development” does, in fact, include
some individual acts on coastal property. (See Surfrider
Foundation v. Martins Beach 1, LLC (2017) 14 Cal.App.5th 238,
254 (Martins Beach) [“That the Legislature adopted exceptions
from the permitting requirement and authorized further
exemptions for conduct that would literally constitute
‘development’ under section 30106 shows the broad definition
was meant to be taken literally . . . .”].)
27
3. Case Authority Is in Agreement
Case authority has repeatedly held that certain
nonphysical activity negatively impacting access to the beach
may qualify as development under the Coastal Act.
In Greenfield v. Mandalay Shores Community Assn. (2018)
21 Cal.App.5th 896 (Greenfield), a community association passed
a resolution banning short-term rentals. (Id. at p. 899.) When
homeowners who wanted to rent out their home challenged the
ban as an unpermitted Coastal Act development, the trial court
denied preliminary relief, and Division Six of the Second
Appellate District reversed. (Greenfield, at pp. 899, 901.) The
court explained, “Our courts have given the term ‘development’
‘[a]n expansive interpretation . . . consistent with the mandate
that the Coastal Act is to be “liberally construed to accomplish its
purposes and objectives.” [Citation.]’ [Citation.] ‘Development’
under the Coastal Act ‘is not restricted to activities that
physically alter the land or water.’ ” (Id. at p. 900.) In
Greenfield, the ban changed the intensity of use and access to
residences in the coastal zone, and was therefore a development.
(Id. at pp. 900-901.) The association “has not erected a physical
barrier to the beach but has erected a monetary barrier to the
beach. [Citation.] It has no right to do so.”[ 21] (Id. at p. 898.) To
the same effect is Kracke v. City of Santa Barbara (2021)
63 Cal.App.5th 1089, in which a city-enacted ban on short-term
rentals was likewise held to be a development, because this
limitation on the availability of low-cost housing and tourist
facilities was an impediment to coastal access. (Id. at p. 1093.)
21 In plaintiffs’ second amended complaint, they alleged that
Bay Boys harassment included “telling visitors they are too poor
or do not pay enough taxes to access Lunada Bay.”
28
This broad interpretation of “development” is not limited to
restrictions on short-term rentals. In Gualala Festivals
Committee v. California Coastal Com. (2010) 183 Cal.App.4th 60,
68, the court held that a fireworks display was a development,
because it resulted in the discharge of solid and chemical waste
into the coastal zone. The court rejected the argument that the
activity must physically alter (or be a necessary precondition to
an activity that physically alters) land or water; and also rejected
the argument that the physical alteration must be long-lasting
and not merely ephemeral. (Ibid.)
The most similar case to the present one is Martins Beach,
supra, 14 Cal.App.5th 238. That case involved a lovely beach,
sheltered by cliffs, which could only be accessed by a single road.
The public initially had access down the road, and had to pay to
park at the beach. When the defendant companies bought the
beach and its adjacent land, they shut off public access – closing
the gate at the top the road, putting up a sign saying the beach
was closed, covering another sign that had advertised beach
access, and stationed security guards to deny public access. (Id.
at pp. 244, 245, 247.) The plaintiff brought suit, alleging this was
a development which required a Coastal Development Permit.
The plaintiff prevailed, obtaining an injunction. (Id. at p. 248.)
On appeal, the beach owners argued that closing the gate and
painting the sign did not constitute development. The court
disagreed. “[D]irectly contrary to appellants’ assertions, ‘the
Coastal Act’s definition of ‘development’ goes beyond ‘what is
commonly regarded as a development of real property’ [citation]
and is not restricted to activities that physically alter the land or
water [citation].’ [Citations.] What is important for purposes of
section 30106 in the present case is that appellant’s conduct
29
indisputably resulted in a significant decrease in access to [the]
beach.” (Id. at p. 252.)
The City points to the physical impediments in Martins
Beach (the closing of the gate, the posting of the no access sign) to
argue that the decision did not turn on the human activity (the
security guards) blocking access. But the Martins Beach holding
did not turn only on the closed gate and posted sign being
physical structures. “It is the totality of appellants’ conduct in
closing access to Martins Beach that the court concluded fell
within the definition of development.” (Martins Beach, supra,
14 Cal.App.5th at p. 252, fn. 11.) There is no structures versus
conduct dichotomy for “development” within the meaning of the
caselaw. Structures are development, and conduct may be too, if
it impacts access. (See City of Dana Point v. California Coastal
Com., supra, 217 Cal.App.4th at p. 174, fn. 3 [both the
installation of gates blocking pedestrian trails, and an ordinance
limiting the hours of operation of those trails, constituted
development].)
Applying this law to the totality of the alleged conduct of
the Bay Boys, plaintiffs have claimed Coastal Act development.
In addition to constructing the Rock Fort and using it as their
base of operations, plaintiffs alleged that the Bay Boys, in an
effort to restrict access to Lunada Bay to locals, engaged in the
following conduct: physically obstructed outsiders’ access to the
beach trails, threw rocks at them, punched them, ran them over
with surfboards in the water, stole their belongings, vandalized
their vehicles, and threatened then with serious injury—sort of
an informal band of self-appointed, violent security guards. If
closing a gate and posting a security guard constitutes
development in Martins Beach, so may setting up headquarters
30
at the Rock Fort, physically obstructing trail access to the beach,
and intimidating outsiders with word and deed.
The court in Martins Beach found the plain language of
definition of “development” to be unambiguous, thus it was
unnecessary to turn to the legislative history. (Martins Beach,
supra, 14 Cal.App.5th at p. 255, fn. 11.) We reach the same
conclusion here.
B. Plaintiffs Sufficiently Alleged Conspiracy
Given that we have held plaintiffs sufficiently alleged an
unpermitted “development” in the Bay Boys’ denial of access to
the beach, the sole remaining question is whether plaintiffs
sufficiently alleged City liability for this conduct. Plaintiffs
alleged the City was liable because it conspired with the Bay
Boys.
Parties can, in fact, be liable for Coastal Act violations
under the doctrine of conspiracy. (Rickley v. Goodfriend (2013)
212 Cal.App.4th 1136, 1158.) Conspiracy liability is not limited
to tort; defendants may be liable if they agree to engage in
conduct that violates a duty imposed by statute. (Ibid.)
“Conspiracies are typically proved by circumstantial evidence.
[Citation.] ‘[S]ince such participation, cooperation or unity of
action is difficult to prove by direct evidence, it can be inferred
from the nature of the act done, the relation of the parties, the
interests of the alleged conspirators, and other circumstances.’ ”
(Id. at p. 1166.)
Here, plaintiffs have alleged the following: Many City
residents and the City Council do not want outsiders in the City;
at least one City official stated that City residents wanted to keep
outsiders away; the Bay Boys had a decades-long practice of
blocking access to Lunada Bay, both by words and acts; the City
31
was aware of this conduct and complicit in it; the former police
chief agreed to look into the situation and then “backed off”; the
City had a “coz[y]” relationship with the Bay Boys; the City did
not enforce its laws against the Bay Boys; instead, the City itself
acted to exclude outsiders from the beach by targeting them with
traffic citations, parking tickets, and towing.
Whether plaintiffs will be able to establish these
allegations when put to the task is not before us now. At this
point, they have sufficiently alleged an actionable conspiracy in
which the City has participated.
DISPOSITION
The judgment is reversed. The City shall pay plaintiffs’
costs on appeal.
RUBIN, P. J.
WE CONCUR:
MOOR, J.
KIM, J.
32