Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS111009 David P. Yaffe and Luis L. Lavin, Judges.
Kassouni Law and Timothy V. Kassouni for Plaintiffs and Appellants.
Edmund G. Brown, Jr., Attorney General, John A. Saurenman, Senior Assistant Attorney General, and Christina Bull Arndt, Supervising Deputy Attorney General, for Defendants and Respondents.
JOHNSON, J.
Plaintiffs appeal the denial of their petition for writ of mandate and grant of summary judgment in favor of defendant California Coastal Commission (Commission). The Commission, after a hearing, found plaintiffs in violation of the California Coastal Act of 1976 (Coastal Act) (Pub. Resources Code, § 30000 et seq.) for failing to obtain a permit for construction work on plaintiffs’ undeveloped property in the Santa Monica Mountains, and recorded a Notice of Violation against plaintiffs’ property.
The trial court denied plaintiffs’ petition for writ of mandate seeking to overturn the Commission’s findings, and granted summary judgment in favor of the Commission on plaintiffs’ other claims for inverse condemnation, trespass to land, violation of civil rights (42 U.S.C. § 1983). On appeal, plaintiffs challenge the trial court’s ruling admitting evidence that plaintiffs contend was obtained in violation of their Fourth Amendment rights, contend substantial evidence does not support the Commission’s finding of a violation of a Coastal Act, and contend the trial court erred in finding that one of the Commission’s employees enjoyed qualified immunity. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Background Facts.
1. Wildcrew’s Construction on the Property.
Plaintiff Wildcrew’s Playground LLC (Wildcrew’s) owns a 39.67 acre undeveloped parcel on Old Topanga Canyon Road (the Property). On June 6, 2005, the Commission received a report from a neighboring property owner that machinery was being used on the Property to grade the land and remove vegetation. The neighbor reported that work had been peformed to widen a preexisting driveway and significant cutting had been done in a protected zone of numerous trees. The neighbor observed that an entirely new roadway had also been cut under some oak trees.
The Coastal Act requires a coastal development permit for persons undertaking development in a coastal zone. Development is defined as including “grading, removing, dredging, mining, or extraction of any materials... and the removal or harvesting of major vegetation other than for agricultural purposes....” (Pub. Resources Code, § 30106.) The Commission is authorized to notify a landowner the Commission intends to record a notice of violation if it finds evidence of unpermitted development. (Pub. Resources Code, § 30812, subd. (a).) If the property owner objects, the property owner may present evidence at a hearing before the Commission; if the Commission finds substantial evidence of a violation of the Coastal Act, the Commission may record a Notice of Violation against the property. (Pub. Resources Code, § 30812, subds. (b)–(d).)
The Commission asserted the Property is located in an area designated as an environmentally sensitive habitat area (ESHA) as set forth in the Malibu/Santa Monica Mountains land use plan certified by the Commission in 1986. A land use plan map in the record shows that small portions of the Property have been designated as an ESHA. In the Commission’s opinion, although it has not been formally designated to be an ESHA, all of the Property is part of an ESHA. John Dixon, an ecologist for the Commission, believed that “areas of undeveloped native habitat in the Santa Monica Mountains that are large and relatively unfragmented may meet the definition of ESHA by virtue of the valuable roles in the ecosystem, regarding of their relative rarity throughout the state.”
An ESHA is defined in the California Coastal Act as an “area in which plant of animal life or their habitats are either rare or especially valuable because of their special nature or role in an ecosystem and which could be easily disturbed or degraded by human activities and developments.” (Pub. Resources Code, § 30107.5.)
On June 21, 2005, the Commission received another report from the same neighbor that grading on the Property continued, and had been occurring for three to four weeks. The neighbor submitted two photographs showing grading that had been done, as well as removal of vegetation, cutting of oak tree branches, and excavation of soil.
On July 12, 2005, the Commission’s staff opened a violation file and Paul Veesart, on behalf of the Commission, sent a notice of violation letter to Peggy Gilder (Gilder) of Wildcrew’s advising her that violations of the Coastal Act had been confirmed on the Property. The letter advised Wildcrew’s that the activities it was undertaking constituted a “development” under the Coastal Act and required a permit. Further, the Commission advised Wildcrew’s it had the authority to issue a cease and desist order, violation of which could result in fines up to $6,000 per day; the Commission had the authority to institute litigation to obtain injunctive relief and civil fines up to $30,000; and the Commission could, after notice and hearing, record a notice of violation against Wildcrew’s property. Wildcrew’s was told to cease work immediately and given until August 15, 2005 to submit a completed coastal development permit for either removal of the unpermitted development and restoration of the site, or authorization of the as-built development. The Commission requested a response from Wildcrew’s by July 20, 2005 regarding how it intended to resolve the violation.
On July 19, 2005, the Commission received a phone call from Donna Shen of Schmitz & Associates, a consulting firm, on behalf of Gilder and Wildcrew’s. Shen confirmed that work had been done on the Property, but that advised the Commission it was the grading of an existing trail to give the owners of the Property access. Shen requested extension of the Commission’s August 15, 2005 deadline to submit an after-the-fact application for the development, and assured staff that the application would be forthcoming, development had ceased, and Commission staff would be permitted to conduct a site visit to assess the full extent and nature of the work performed. Shen’s letter of July 19, 2005 indicated that Wildcrew’s would be submitting an after-the-fact application by September 19, 2005.
On July 20, 2005, Shen scheduled a Commission site visit for August 2, 2005. On July 27, 2005, Shen advised the Commission that a “filmmaker” would be filming a documentary about land development in California and the difficulties of developing land in the Santa Monica Mountains. On July 28, 2005, the Commission informed Shen that it did not consent to being filmed during the site inspection, and that filming would interfere with the site inspection. The Commission suggested that it also be permitted to film at the same time, but Wildcrew’s refused to permit the Commission to do so. After the parties were unable to work out an agreement on filming, on August 2, 2005, Shen wrote the Commission to memorialize that the Commission had cancelled the site inspection. The Commission took the position that it was not appropriate to require it to consent to being in a documentary film while conducting a site inspection.
On August 17, 2005, Commission staff photographed the Property from the vantage point of public and private property located on the opposite side of the canyon from the Property. Sinclair also received photographs from a neighbor taken July 15, 2005 showing grading and vegetation removal on the Property.
On September 19, 2005, Wildcrew’s submitted an application for an after-the-fact exemption for brush clearance, repair and maintenance of an existing driveway and a claim of vested rights “‘for the historically existing driveway and flat, cleared pad on the above property.’” In the Commission’s opinion, “[w]hile there is some evidence that a historical driveway or road may have existed at one time, [the Commission’s] review of more recent aerial photographs indicates that vegetation had re-grown and covered the roadbed in some of the areas that were cleared by Wildcrew’s.”
The Commission was unable to negotiate a site inspection with Wildcrew’s. The Commission contacted the Attorney General’s office, and on October 14, 2005, Judge Charles W. McCoy, Jr. issued an inspection warrant. The inspection warrant provided that the Commission was to conduct an inspection for the purpose of determining whether development within the meaning of the Coastal Act had taken place on the Property. The warrant authorized “entry upon [the Property], inspection, measurement and taking of photographs of the property and the conditions found upon it without limitation or condition except that the agents authorized hereby may not enter any structure which may be or is currently used as a residence unless such entry and inspection is consented to by a person or persons in control of the residence. The inspection of the above-described property for Coastal Act violations cannot be conditioned or otherwise contingent on the filming, videotaping or otherwise recording of agents authorized hereby before, during or after the inspection, unless the agents give their written consent.”
2. The Commission’s October 19, 2005 Site Inspection.
On October 19, 2005, after giving notice of the inspection to plaintiffs, the Commission’s staff entered the subject Property to conduct the inspection. However, Wildcrew’s insisted on filming the inspection; as a result, the Commission’s staff was only on the Property for a short time. Nonetheless, the Commission was able to photograph development that had taken place. These photographs show hillside excavation, road cuts, vegetation removal, construction of rock walls, and backfilling of soil near oak trees.
Participating in the October 19, 2005 site inspection were Norris, the Property’s owner; Shen, his consultant; Rosana Miramontes, Deputy Attorney General; Patrick Veesart and Tom Sinclair on behalf of the Commission; Sergeant Gomez, a Los Angeles police officer; Deputy Sheriff Vince Bryant; and an unidentified male officer. Also present was a camera crew. At the commencement of the inspection, on the DVD Norris can be heard advising the film crew that the Commission and others acting on its behalf were to “be allowed unfettered access for their inspection, which means you guys have to stay out of the way. You can follow them with a camera, you can follow them with sound, but you can’t get in their way. Let them do their job. They’re here to do an inspection that they were supposed to do on August second. Today is October 19th.”
Miramontes advised Shen that the Commission did not consent to being filmed. “We have a court order, search warrant, excuse me, an inspection warrant where the court said you can’t do this.” Sergeant Gomez said, “you could either desist with the filming or we’re going to write a report that you’re in violation of the court order.” Miramontes asked whether Norris is refusing inspection under the warrant, to which he responds, I don’t understand the warrant. Norris advised the Commission that it is on private property, and that pursuant to the Bagley-Keene Act, the Commission was required to permit filming of the inspection. After Deputy Bryant asked for Norris’s identification, Norris asked, “Are you going to continue to the inspection? We will not fetter you in any way.” The Commission advised Norris he is in violation of the court order, and that they would be writing a report, and it would be “up to the judge to see where it goes from here.” The inspection concluded.
During the inspection, on Wildcrew’s edited videotape of the inspection, Sinclair leaves the group and walks down a graded dirt drive past a golf cart. He can be seen in the videotape taking photographs about 50 feet down the graded driveway. Later, a Sheriff’s Deputy goes down the path and returns with Sinclair.
3. The Commission Hearing and Notice of Violation.
On December 2, 2005, Wildcrew’s advised the Commission that Wildcrew’s position was that nothing prohibited filming of the site inspection, and any prohibition on filming would violate Wildcrew’s right to gather evidence in defense of a potential criminal, quasi-criminal, or civil proceedings.
On July 13, 2006, the Commission notified Shen that it was denying Wildcrew’s after-the-fact exemption request because Wildcrew’s development required a permit pursuant to California Code of Regulations, title 14, section 13252, subdivision (a)(3). In addition, the Commission requested further information in order for it to address Wildcrew’s vested rights claim. The Commission referred to its letter of February 22, 2006 requesting such information.
On November 9, 2006, because Wildcrew’s had not submitted its application, the executive director of the Commission issued a notice of intent to record a notice of violation of the Coastal Act. The notice advised Wildcrew’s that the proposed development was in an ESHA and not exempt from coastal permit requirements. On November 29, 2006, Wildcrew’s objected to the notice of violation, and took the position that the Commission had not documented any alleged violations. Wildcrew’s did not contest the Commission’s assertion the Property was located in an ESHA.
The Commission set the matter for hearing February 15, 2007. The Commission’s report indicates it found that Coastal Act violations had occurred on the Property. Four photographs taken by Sinclair at the October 19, 2006 site inspection are part of the Commission’s report. Those photographs show (1) “unpermitted road cut and vegetation removal, ” (2) “[u]npermitted excavation of hillside” with “fresh cuts in the soil, ” (3) “[u]npermitted construction of rock walls, and backfilling of soil material around native oak trees, ” and (4) “[u]npermitted construction of rock wall, with grading and backfilling of soil under, and on top of, oak trees.” In reaching its conclusions that Wildcrew’s was acting in violation of the Coastal Act, the report notes that “there is substantial evidence that development, as defined by the Coastal Act, has taken place on the Wildcrew’s property. The evidence includes photographs taken by... [Commission] staff on August 17, 2005 and on October 19, 2005, as well as staff’s direct observations made during the October 19, 2005 site visit.” The report also relies on the photographs taken by Wildcrew’s neighbors (June 5, June 21, and July 15, 2005), and aerial photographs taken before and after Wildcrew’s began work on the Property showing the existence and progress of the unpermitted development and heavy machinery on the Property.
The Commission recorded a notice of violation against the Property on April 3, 2007. The notice of violation identified the Coastal Act violations as “[g]rading, excavation and dumping of soil materials, removal of major vegetation, and placement of rock walls and culverts in an [ESHA].”
B. Procedural Background.
Plaintiffs’ complaint filed April 16, 2007 stated eight causes of action, and sought a writ of mandate pursuant to Code of Civil Procedure sections 1085 and 1094.5 commanding the Commission to grant it an exemption from the permitting requirement to expunge the notice of violation (first and second causes of action). The complaint further alleged claims for injunctive and declaratory relief (third, fourth and fifth causes of action), inverse condemnation (sixth cause of action), trespass to land (seventh cause of action), violation of civil rights (42 U.S.C. § 1983) (eight cause of action) and punitive damages. Plaintiffs’ complaint named the Commission, the Commission’s two employees who participated in the site inspection (Pat Veesart and Tom Sinclair) and two neighboring property owners.
1. Denial of Petition for Writ of Mandate on First, Second, Third, Fourth and Fifth Causes of Action.
In support of their petition for writ of mandate, plaintiffs argued that substantial evidence did not support the Commission’s findings of Coastal Act violations because it did not perform a site inspection; the clearing and other activity had not taken place in an ESHA; and evidence obtained by the Commission was a result of trespass, forcible entry, and in excess of the authority granted by the inspection warrant.
The Commission contended that substantial evidence supported its findings based on direct observation; neighbor’s reports, the abbreviated site inspection; and photographs (both those taken by the Commission and Wildcrew’s neighbors). Further, the Commission argued that there was no forcible entry because neither the Commission nor anyone acting on its behalf used force to enter the Property.
In reply, plaintiffs contended that forcible entry did not require the use of physical force, but only a refusal to consent to the inspection.
At the September 4, 2008 hearing, in response to plaintiffs’ argument that the evidence obtained at the October 19, 2005 site inspection should be excluded, the court remarked there was no exclusionary rule that was applicable to civil or administrative warrants. The court found the Commission’s findings of grading, excavation, removal of vegetation, and placement of rock walls and culverts in an ESHA are supported by substantial evidence because the Property was located in an ESHA pursuant to the map submitted by the Commission; aerial photographs taken before and after the plaintiffs acquired the Property show excavation and grading of a road on the Property; a photograph taken July 15, 2005 shows that plaintiffs brought a backhoe onto the Property; a neighbor observed an “entire new roadway” cut on the Property on June 7, 2005; photographs taken June 5, 2005 and June 21, 2005 from a neighbor’s property show major grading and removal of vegetation. The court rejected plaintiffs’ contention that they were merely conducting “harmless repair and maintenance of a 60 year old asphalt driveway for access purposes” and which did not constitute development. The court refused to apply an exclusionary rule to evidence the Commission obtained the date of the site inspection, and denied the petition for writ of mandate on the first, second, third, fourth and fifth causes of action.
2. Motion for Summary Judgment on the Sixth, Seventh and Eighth Causes of Action.
The Commission moved for summary judgment on the remaining causes of action for inverse condemnation, trespass, and violation of civil rights (42 U.S.C. § 1983). The Commission contended that the notice of violation did not constitute a taking; defendants were immune from liability under Government Code sections 821.6 and 815.2; and Veesart and Sinclair were entitled to qualified immunity on the eighth cause of action for violation of the Fourth Amendment.
Wildcrew’s opposed, contending that factual issues precluded summary judgment on the inverse condemnation claim because a notice of violation may constitute a taking, defendants were not statutorily immune from liability because evidence was obtained as a result of trespass, and Veesart and Sinclair reasonably should have known their entry and search violated plaintiffs’ constitutional rights.
The trial court granted the motion. The court found the recording of the notice of violation was analogous to a lis pendens and did not constitute a taking as a matter of law, nor did the Commission’s refusal to grant an exemption permit constitute a taking as a matter of law. The court found Veesart and Sinclair enjoyed qualified immunity from liability on plaintiffs’ civil rights claim because neither defendant had reason to question the validity of the administrative warrant.
Norris and Gilder do not appeal the grant of summary judgment on the inverse condemnation and trespass causes of action, nor do they appeal the trial court’s order granting Veesart qualified immunity. Further, the two additional named defendants, Marti Witter and John Simons are not parties to this appeal.
DISCUSSION
Wildcrew’s argues the trial court erred in failing to grant its petition for writ of mandate because the Fourth Amendment and Code of Civil Procedure section 1822.56 prohibit forcible entry in civil administrative inspections, and the Commission’s findings were not supported by substantial evidence. Wildcrew’s further argues that Tom Sinclair was not entitled to qualified immunity under 42 United States Code section 1983 on its civil rights claim and factual issues exist with respect to that claim. Lastly, Wildcrew’s contends the court erred in excluding the unedited DVD of the Commission’s October 19, 2005 inspection.
I. STANDARD OF REVIEW.
“A petition for administrative mandamus is appropriate when the party seeks review of a ‘determination, finding, or decision of a public agency, made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in a public agency, on the grounds of noncompliance with [applicable law], ’ generally referred to as an ‘adjudicatory’ or ‘quasi-judicial’ decision. [Citations.]” (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 566–567; see Tomlison v. County of Alameda (2010) 188 Cal.App.4th 1406, 1414–1415, fn. 3.) When an agency decision does not involve a fundamental vested right, both we and the trial court review it under the deferential substantial evidence test. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Berg v. Davi (2005) 130 Cal.App.4th 223, 228.) Under this standard of review, we consider all relevant evidence from the administrative record but do not reweigh the evidence. (Manning v. Fox (1984) 151 Cal.App.3d 531, 538–539; see also California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 584.) We presume the record contains evidence to support the Commission’s findings and resolve all conflicts in favor of its decision. (California Youth Authority v. State Personnel Bd., supra, 104 Cal.App.4th at p. 584.) A decision is reversed only, if based on the evidence before the agency, no reasonable person could have reached the challenged conclusion. (Eden Hospital Dist. v. Belshé (1998) 65 Cal.App.4th 908, 915–916; Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610.)
On the other hand, with respect to our review of a summary judgment motion, “the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “Once the [movant] has met that burden, the burden shifts to the [other party] to show that a triable issue of one or more material facts exists as to that cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1) ; Aguilar, at p. 850.) A triable issue of material fact exists where “the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, at p. 850.) Where summary judgment has been granted, we review the trial court’s decision de novo, “considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
II. THE COMMISSION DID NOT VIOLATE WILDCREW’S FOURTH AMENDMENT RIGHTS.
Plaintiffs contend that the Fourth Amendment and California law prohibit the use of forcible entry in civil administrative inspections. (Camara v. Municipal Court (1967) 387 U.S. 523; Code Civ. Proc., § 1822.50 et seq.) Here, plaintiffs argue the Commission violated plaintiffs’ rights by conducting an inspection over their objection, and the trial court erred in failing to apply the exclusionary rule to evidence obtained at the site inspection in violation of those rights. (People v. Tillery (1989) 211 Cal.App.3d 1569 (Tillery).) Plaintiffs further argue that a display of physical force is not required to violate the Fourth Amendment in an administrative search; there were no exigent circumstances justifying a warrantless search or forcible entry; and the nature and quality of the Fourth Amendment intrusion outweighed the Commission’s interest in conducting an inspection. The Commission contends that Wildcrew’s property is not subject to Fourth Amendment protection because it is open land; Sinclair did not violate the Fourth Amendment because he did not use force to access the Property; and Wildcrew’s consented to the search.
Plaintiffs appear to direct their Fourth Amendment exclusionary rule arguments at all of their causes of action, not just those claims disposed of in the order denying their petition for writ of mandate and dismissing their first, second, third, fourth and fifth causes of action.
In Camara v. Municipal Court, supra, 387 U.S. 523, the Supreme Court held that a nonconsensual administrative search of a private residence is subject to the requirements of the Fourth Amendment, and the administrative agency must therefore obtain an inspection warrant from a judge before the search. (Id. at p. 538.) Probable cause for obtaining an administrative warrants differs from a criminal warrant in that the administrative agency need only show reasonable legislative or administrative standards for inspection, or a reasonable belief by an inspector that a regulatory violation exists on the particular premises be inspected. (Ibid.) California enacted section 1822.50 et seq., to comply with the requirements of Camara. (Tillery, supra, 211 Cal.App.3d at p. 1575.)
Section 1822.56 provides: “An inspection pursuant to this warrant may not be made between 6:00 p.m. of any day and 8:00 a.m. of the succeeding day, nor in the absence of an owner or occupant of the particular place, dwelling, structure, premises, or vehicle unless specifically authorized by the judge upon a showing that such authority is reasonably necessary to effectuate the purpose of the regulation being enforced. An inspection pursuant to a warrant shall not be made by means of forcible entry, except that the judge may expressly authorize a forcible entry where facts are shown sufficient to create a reasonable suspicion of a violation of a state or local law or regulation relating to building, fire, safety, plumbing, electrical, health, labor, or zoning, which, if such violation existed, would be an immediate threat to health or safety, or where facts are shown establishing that reasonable attempts to serve a previous warrant have been unsuccessful. Where prior consent has been sought and refused, notice that a warrant has been issued must be given at least 24 hours before the warrant is executed, unless the judge finds that immediate execution is reasonably necessary in the circumstances shown.” (Italics added.)
In Tillery, supra, 211 Cal.App.3d 1569, the court applied the exclusionary rule to evidence obtained in violation of an administrative warrant where the proceeding was “quasi-criminal” in nature on the rationale such a proceeding involved penalties or forfeitures. (Id. at p. 1580.) Tillery reasoned that the Fourth Amendment imposed a standard of reasonableness on searches, and reasonableness depended upon the circumstances surrounding the search and seizure and the nature of the search and seizure itself. “Determining the standard of reasonableness applicable to a particular class of searches requires ‘“balanc[ing] the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.”’ [Citation.]” (Id. at p. 1579.)
The Commission argues that the exclusionary rule does not apply in administrative proceedings. (See, e.g., Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1017–1018, fn. 9 [noting exclusionary rule does not apply in numerous types of administrative proceedings].) The cases cited in Conservatorship of Susan T. are distinguishable because they did not involve civil warrants under Code of Civil Procedure section 1822.59.
Although it found the use of force in executing the inspection warrant at issue violated section 1822.56, Tillery noted that as a general rule, “a statutory violation does not necessarily require the suppression of evidence. Although the purpose of the statutory requirements for service of warrants is the implementation of the Fourth Amendment, the particular procedures the statute mandates are not necessarily part of the Fourth Amendment. [Citation.] Where, despite statutory violations, the search is ‘reasonable’ in the constitutional sense, exclusion of the evidence is not warranted. [Citation.]... [I]t is important to differentiate the right to personal security free from unnecessary intrusions by the state and the procedures which have been established to protect that right.” (211 Cal.App.3d at p. 1580.)
Tillery observed that the prohibition against the use of force was based on the need to avoid violent confrontations between property owners and administrative inspectors. (211 Cal.App.3d at p. 1581.) In Tillery, officers who were executing a warrant to investigate zoning and building code violations, confronted the homeowner, demanded entry to the premises, and when the owner refused, the officers forcibly attempted to enter the premises and a fight ensued. (Id. at p. 1574.) Tillery found the search was not reasonable under the circumstances because “[t]he government’s interest in conducting the administrative search did not justify the forceful and coercive nature of the intrusion.” (Id. at p. 1581.) Once the property owner objected to the officers’ entry to the property, their authority to execute the warrant ended, and they were required to obtain a warrant authorizing the use of force. (Id. at pp. 1577–1578.)
Here, plaintiffs contend that Tillery precludes the use of forcible entry, and once they refused to consent to the inspection without being permitted to film, the Commission was required to obtain a warrant authorizing the use of force to gain entry. Plaintiffs argue that because they did not consent to the Commission’s conduct of the search on their Property unless they could film it, their Fourth Amendment rights were violated.
We disagree with plaintiffs’ analysis of the Fourth Amendment issue. First, the facts demonstrate plaintiffs consented to the inspection, but placed a condition on the inspection that the Commission could proceed with the inspection only if Wildcrew’s could film it. The Commission’s representatives voiced their objection, yet Norris advised his film crew that Veesart, Sinclair, and others were to “be allowed unfettered access for their inspection, which means you guys have to stay out of the way. You can follow them with a camera, you can follow them with sound, but you can’t get in their way. Let them do their job. They’re here to do an inspection that they were supposed to do on August 2nd.” Further, when Deputy Bryant asked for Norris’s identification, Norris responded, “Are you going to continue to the inspection? We will not fetter you in any way.” Thus, the Commission terminated the inspection without use of force because Norris refused to comply with the warrant even though Norris twice consented to the inspection on his terms. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219.)
In addition, plaintiffs take contradictory positions, at first arguing that it is “undisputed” they did not consent to the inspection, but claiming that Norris never threatened or obstructed the Commission from performing an inspection. What the facts establish is that plaintiffs did not consent to an unfilmed inspection, and the Commission did not consent to a filmed inspection, resulting in an impasse. The record does not indicate anyone acting on behalf of plaintiffs attempted to stop Sinclair from walking away from the group. Thus, the trial court could reasonably have construed the plaintiffs’ conduct as consent to the inspection, but only on plaintiffs’ terms. Generally, the trial court is vested with “the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences” in deciding whether a search is constitutionally unreasonable. (People v. Lawler (1973) 9 Cal.3d 156, 160.) Accordingly, we determine if the factual record supports the trial court’s conclusions as to whether the search met the constitutional standard of reasonableness. (Ibid.)
Second, even if we were to construe Norris’s refusal to stop filming as a refusal to consent to the search, as Tillery explained, not every violation of section 1822.56 is a Fourth Amendment violation. (211 Cal.App.3d at p. 1580.) Thus, assuming Sinclair’s conduct in walking down the road a short distance to observe the Property and take some photographs violated the statute, his conduct was not unreasonable under the circumstances. Norris had agreed to “unfettered access, ” and no one stopped Sinclair when he walked away from the group. Norris did not have an expectation of privacy in the Property for purposes of the inspection, and Sinclair’s short walk would not have violated that expectation if one reasonably existed.
Wildcrew’s did not have a legitimate expectation of privacy in the Property. Under the “open fields doctrine, ” because the Property did not have a residence, officers may search the land consistent with the Fourth Amendment, even where the property is private. Thus, police officers may observe without a warrant activities conducted out of doors in fields, except for the areas immediately surrounding the home. (Oliver v. United States (1984) 466 U.S. 170, 178; People v. Channing (2000) 81 Cal.App.4th 985, 990.) “[T]he fact that the observing officer trespasses to get to his or her observation point does not transmute the observation into an unconstitutional search.” (Ibid.) Thus, Sinclair’s observations made on the Property, including those made during his walk away from the group, did not violate the Fourth Amendment.
III. SUBSTANTIAL EVIDENCE SUPPORTS THE COMMISSION’S FINDING OF A COASTAL ACT VIOLATION.
Plaintiffs contend that because the evidence Sinclair obtained on October 19, 2005 must be excluded, there is insufficient evidence to support the Commission’s findings that they were in violation of the Coastal Act. First, plaintiffs argue insufficient evidence supports the conclusion that the Property is in an ESHA because the map designating the Property as part of an ESHA is not part of the Los Angeles County Malibu/Santa Monica Mountains land use plan, and even if the Property is in an ESHA, there is no evidence any of the work on the Property actually took place in those portions of the Property containing an ESHA. With respect to the designation of the Property as part of an ESHA, Wildcrew’s argues the Commission did not designate the Property an ESHA until one year after the initial NOV, thereby violating the prohibition against ex post facto laws. Second, the Commission denied them a fair hearing because it failed to provide notice regarding the alleged placement of unpermitted rock walls and culverts, there was no evidence of such rock walls and culverts supporting its finding, and third, the Commission’s evidence was not produced in a timely fashion.
As discussed above, we have concluded that the evidence the Commission obtained at the site inspection did not violate Wildcrew’s Fourth Amendment rights. Thus, we do not address Wildcrew’s sufficiency of the evidence arguments based upon the trial court’s consideration of evidence obtained at the site inspection.
A. Substantial Evidence Supports a Violation of the Coastal Act.
Under the Coastal Act, the Commission is required to protect the coastal zone’s delicately balanced ecosystem. (§ 30001, subds. (a)-(c); § 30001.5, subd. (a); City of San Diego v. California Coastal Com. (1981) 119 Cal.App.3d 228, 233; Sierra Club v. California Coastal Com., supra, 12 Cal.App.4th at p. 611.) A coastal development permit is required for development within the coastal zone. (Pub. Resources Code, § 30600, subd. (a).)
In addition to the protection afforded by the requirement that the Commission consider the environmental impact of all its decisions, the Coastal Act provides heightened protection to ESHA’s. (Sierra Club v. California Coastal Com., supra, 12 Cal.App.4th at p. 611.) Section 30107.5 identifies an ESHA as “any area in which plant or animal life or their habitats are either rare or especially valuable because of their special nature or role in an ecosystem and which could be easily disturbed or degraded by human activities and developments.”
Section 30240 provides: “(a) Environmentally sensitive habitat areas shall be protected against any significant disruption of habitat values, and only uses dependent on those resources shall be allowed within those areas. [¶] (b) Development in areas adjacent to environmentally sensitive habitat areas and parks and recreation areas shall be sited and designed to prevent impacts which would significantly degrade those areas, and shall be compatible with continuance of those habitat and recreation areas.’” (Sierra Club v. California Coastal Com., supra, 12 Cal.App.4th at p. 611.)
First, Wildcrew’s waived its contentions regarding the ESHA map because it failed to raise it at or prior to the administrative hearing. The record demonstrates that Wildcrew’s had notice that the Commission was alleging the Property was in an ESHA; yet neither in response to the Commission’s notice that it intended to record a notice of violation or at the hearing did Wildcrew’s object to this assertion. Exhaustion of administrative remedies is a jurisdictional prerequisite to a judicial action challenging any planning decision. (San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 686.) Thus, based upon the map in the record establishing portions of the Wildcrew’s property were in an ESHA, the Commission’s finding in this regard is supported by substantial evidence.
Second, the record contains substantial evidence, apart from Sinclair’s photographs taken at the site inspection, that Wildcrew’s violated the Coastal Act. Photographs in the Commission’s report either taken by the Commission or Wildcrew’s neighbors evidence the commencement of work and its progress during the month of June 2005; aerial photographs, both historical and those taken by the Commission, show that Wildcrew’s had cut foliage and removed soil, graded a road, and was using heavy machinery on the property. In addition, neighbors reported new development on the Property in June 2005, consisting of widening of the old driveway, the cutting of a new roadway under oak trees, and the use of heavy machinery. One neighbor submitted photographs showing grading, cutting of vegetation, cutting of oak tree branches, and soil removal. This evidence supports a finding of a violation of the Coastal Act.
Finally, we have concluded the exclusionary rule does not apply to the Commission’s photographs taken at the site inspection; some of these photographs depict unpermitted rock walls and culverts. As a result, the Commission’s findings with respect to rock walls and culverts are supported by substantial evidence. In conclusion, based upon this evidence, we reject Wildcrew’s remaining arguments that its construction work was exempt from the permitting requirements of the Coastal Act under section 30610, subdivision (d) because it constituted repair or maintenance activities. Clearing of substantial amounts of vegetation, cutting of oak trees, and removal of soil in an undeveloped parcel do not constitute “repair or maintenance.”
B. Wildcrew’s Received a Fair Hearing.
Wildcrew’s contends it did not receive a fair hearing before the Commission because it did not receive adequate notice of the proposed recordation of the notice of violation in the Commission’s July 12, 2005 and November 9, 2006 notices because both relied on unpermitted development based upon grading and vegetation removal, whereas the actual notice of violation recorded referred to excavation, soil dumping, and placement of rock walls and culverts.
However, Wildcrew’s fails to point out that the staff report and notice of the February 2, 2007 hearing disclosed the full extent of Wildcrew’s alleged violations. Further, the administrative record discloses Wildcrew’s failed to object to the purported lack of notice of its alleged violations at the Commission hearing, and did not assert the fact that it had not received a copy of the map or the Dixon memorandum prior to the hearing. Wildcrew’s waived these objections by failing to timely assert them at the hearing. (San Franciscans Upholding the Downtown Plan v. City and County of San Francisco, supra, 102 Cal.App.4th at p. 686.)
The fact that Wildcrew’s raised them in the trial court does not excuse this failure. Exhaustion of administrative remedies is a jurisdictional prerequisite to judicial relief, and Wildcrew’s was required to raise its objections at the administrative hearing. (San Franciscans Upholding the Downtown Plan v. City and County of San Francisco, supra, 102 Cal.App.4th at p. 686.)
C. Ex Post Facto Law.
Wildcrew’s contends that the Commission engaged in a legislative decision in finding the Property was in an ESHA, thereby making previously legal conduct illegal after the fact in violation of the ex post facto doctrine. We disagree.
In Security National Guaranty, Inc. v. California Coastal Com. (2008) 159 Cal.App.4th 402 (Security National), the court held that amending a local coastal program (LCP) was a legislative act. (Id. at pp. 415–416.) The Coastal Act requires local governments lying within the coastal zone to prepare an LCP, which consists of a land use plan (akin to a general plan) and a “local implementation plan, which includes zoning, zoning maps, and other implementing actions for the coastal zone.” (Id. at p. 408, fn. 2.) Thus, in designating a particular site within the LCP as an ESHA in the context of the permit appeal, the Commission engaged in a legislative activity in excess of its authority. (Id. at pp. 422–426.) However, as Security National recognized, “‘the coastal permit process is adjudicatory.’” (Id. at p. 416.)
Here, the Commission did not designate portions of the Property an ESHA during the process of reviewing Wildcrew’s purported violations of the Coastal Act. Rather, the Commission asserted, based upon evidence in the record, the Property was in an ESHA; Wildcrew’s did not contest that finding. In finding a Coastal Act violation, the Commission acted in an adjudicatory manner, and as a result, the Commission did not violate the ex post facto clause.
IV. CIVIL RIGHTS CLAIM.
Wildcrew’s argues that the trial court erred in granting Tom Sinclair qualified immunity because the parties to the site inspection understood that Wildcrew’s did not consent to the inspection without filming; and despite Norris’s refusal to consent to the inspection without filming, Sinclair proceeded to inspect the Property. Wildcrew’s also argues Sinclair was not entitled to qualified immunity because the inspection warrant prohibited the use of forcible entry and a display of physical force was not required to preserve Wildcrew’s Fourth Amendment rights. Wildcrew’s argues that a reasonable Commission officer would have known that an inspection without such consent was not an option under the circumstances.
Wildcrew’s further contends the factual issues preclude entry of summary judgment on their civil rights claim: (1) Sinclair’s understanding that Norris did not consent to an inspection without filming; (2) Sinclair’s understanding that the Commission’s legal counsel, present on site, did not believe an inspection could take place over Norris’s objection; (3) Sinclair’s understanding that Sergeant Gomez did not believe an inspection could take place over Norris’s objection; (4) the nature and scope of Sinclair’s inspection; (5) the lack of exigent circumstances; and (6) the alternate remedies available to the Commission, including application for a warrant allowing use of forcible entry or initiation of contempt proceedings.
The Commission argues that Sinclair was performing a discretionary function, entitling him to qualified immunity; he did not violate the Fourth Amendment by walking around the Property; no law clearly established that Sinclair’s walk around the Property violated the Fourth Amendment; and Sinclair’s actions were objectively reasonable.
Under title 42 of the United States Code section 1983, a plaintiff may allege a deprivation of a right secured by the Constitution of the United States or federal law, and that the “deprivation was committed by a person who was acting under color of state law.” (West v. Atkins (1988) 487 U.S. 42, 48.) At the same time, however, the decisional law recognizes a “qualified immunity” that protects against the concern that officers may be chilled in their daily pursuit of investigations and arrests. Otherwise, any person could bring an officer into a lawsuit to extract vengeance for arrest. This qualified immunity protects officers not only against trial and judgment, but also the chilling effect that would be caused by the expense of litigation. (Harlow v. Fitzgerald (1982) 457 U.S. 800, 816–819.)
Section 1983 provides that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any... person... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....” Congress enacted the statute “‘“to provide protection to those persons wronged by the misuse of power.” [Citation.]’ [Citation.] Section 1983 creates no substantive civil rights..., only a procedural means for their enforcement.” (Martinez v. County of Los Angeles (1996) 47 Cal.App.4th 334, 342, & fn. 3.)
“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ [Citation.] Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” (Pearson v. Callahan (2009) 555 U.S. 223 [129 S.Ct. 808, 815, 172 L.Ed.2d 565].) “Because qualified immunity is ‘an immunity from suit rather than a mere defense to liability... it is effectively lost if a case is erroneously permitted to go to trial.” (Id. at p. 815.) Therefore, it is important to “‘resolv[e] immunity questions at the earliest possible stage in litigation.’” (Ibid.)
“Essentially, qualified immunity means that officials may avoid suit and liability not simply when they have acted lawfully but also when, while they have acted unlawfully in an absolute sense, they have nonetheless acted reasonably, under the circumstances.” (Wood v. Emmerson (2007) 155 Cal.App.4th 1506, 1515.) “[Q]ualified immunity shields a public officer from an action for damages under 42 United States Code section 1983 unless the officer has violated a ‘clearly established’ constitutional right. “Clearly established” means “‘it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’ In other words, an officer is not liable for his ‘reasonable mistakes.’” (Venegas v. County of Los Angeles (2007) 153 Cal.App.4th 1230, 1241–1242, fns. omitted.) “Thus, qualified immunity leaves ‘ample room for mistaken judgments, ’ [citation] and protects ‘all but the plainly incompetent or those who knowingly violate the law.’ [Citation.]” (Harman v. Pollock (10th Cir.2006) 446 F.3d 1069, 1077.) In the context of an allegedly invalid warrant, the qualified immunity shield is lost only when the warrant application is so lacking an indicia of probable cause that it renders official reliance on the warrant unreasonable. (Wood v. Emmerson, supra, 155 Cal.App.4th at p. 1515.)
“The issue of whether qualified immunity exists is ultimately one of law for the trial court. [Citation.] Disputes of historical fact relevant to the issue, however, must be decided by a jury. (Wood v. Emmerson, supra, 155 Cal.App.4th at p. 1515.)
Here, Sinclair is entitled to qualified immunity because the undisputed facts show his actions were objectively reasonable. Sinclair understood that the Commission had a valid inspection warrant, issued by a judge; no one in the party objected when he departed from the group, and in fact, Norris told the group that they would have unfettered access, as long as the Commission submitted to filming; and when it became clear that the Commission would not obtain full access to the Property, the Commission and its representatives left.
IV. EXCLUSION OF UNEDITED DVD.
Wildcrew’s argues that exclusion of the unedited DVD, which contains raw footage of the site inspection, was error because there was no reason to include the edited footage, along with a transcript of the statements made in the edited footage, without including the unedited DVD.
We review the admission of evidence under the deferential abuse of discretion standard of review. (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431.) An abuse of discretion is shown where the trial court’s decision was arbitrary, capricious, and beyond the bounds of reason. Further, we will not reverse the trial court absent a showing of prejudicial error in that it is reasonably probable the result would have been different but for the trial court’s evidentiary ruling. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Here, Wildcrew’s correctly points out that the transcript of the unedited the DVD was in the record, along with an edited DVD. We have reviewed the unedited DVD and conclude its exclusion was not prejudicial because all of the relevant evidence on the unedited DVD (the conversation between the parties at the inspection, Wildcrew’s refusal to permit the inspection without filming, and Sinclair’ departure from the group) is already part of the record because it appears on the transcript and in the edited DVD.
DISPOSITION
The judgment of the superior court is affirmed. The parties are to bear their own costs on appeal.
We concur: ROTHSCHILD, Acting P. J., CHANEY, J.