People ex rel. Dept. of Transportation v. Outdoor Media Group

• Decision Date: 25 February 1993
• Docket Number: No. E008649,E008649
• Citation: People ex rel. Dept. of Transportation v. Outdoor Media Group, 17 Cal.Rptr.2d 19, 13 Cal.App.4th 1067 (Cal. App. 1993)
• Court: California Court of Appeals
• Parties: The PEOPLE ex rel. DEPARTMENT OF TRANSPORTATION, Plaintiff, Cross-defendant and Respondent, v. OUTDOOR MEDIA GROUP, Defendant, Cross-complainant and Appellant.

Page 19

17 Cal.Rptr.2d 19

13 Cal.App.4th 1067

The PEOPLE ex rel. DEPARTMENT OF TRANSPORTATION, Plaintiff, Cross-defendant and Respondent, v.OUTDOOR MEDIA GROUP, Defendant, Cross-complainant and Appellant.

No. E008649.

Court of Appeal, Fourth District, Division 2, California.

Feb. 25, 1993.

As Modified on Denial of Rehearing March 24, 1993.

Review Denied June 3, 1993.

[13 Cal.App.4th 1072] Paul E. Fisher, Newport Beach, for defendant, cross-complainant and appellant.

Joseph A. Montoya, Joseph C. Easley, and O.J. Solander, Sacramento, for plaintiff, cross-defendant and respondent.

Ronald W. Beals, Sacramento, as amicus curiae.

DABNEY, Acting Presiding Justice.

OPINION

Outdoor Media Group (OMG) appeals from a judgment following the grant of a motion for summary judgment in favor of the People of the State of California, acting by and through the Department of Transportation(Caltrans) on Caltrans' complaint for a permanent injunction.OMG also appeals from the dismissal of its cross-complaint.

FACTS

In May 1988, OMG applied to Caltrans for permits to erect two billboards within 500 feet of the interchange of I-15 and I-215 in Murrieta, an unincorporated area of Riverside County.OMG submitted its applications under the California Outdoor Advertising Act(BUS. & PROF.CODE , § 5200¹ et seq.)(the Act).Caltrans determined that the area where OMG sought to erect the billboards was outside an incorporated city and not in an urban area.Caltrans therefore refused to issue the permits on the ground the proposed billboards violated section 5408, subdivision (d).²OMG nonetheless erected the billboards without permits at such location.

Caltrans issued citations for the billboards in November 1988.When OMG failed to remove the billboards, Caltrans filed a complaint seeking an injunction to compel the removal of the billboards.Caltrans alleged the billboards had been erected without the required state permits in an area where state law did not permit billboards.

In its answer, OMG admitted it had erected and maintained the billboards without first obtaining permits from Caltrans.OMG also filed a cross-complaint for a writ of mandate seeking to compel Caltrans to issue permits for the billboards.OMG alleged that Caltrans had a mandatory duty to issue the permits and had wrongfully denied OMG's application.

Caltrans moved for summary judgment on its complaint on the ground the billboards were illegal because OMG had not obtained permits before erecting them.OMG opposed the motion on the ground it was entitled to the permits, and Caltrans had a mandatory duty to issue the permits.OMG also argued estoppel, alleging that Caltrans had a past practice of issuing permits retroactively.

The trial court stated that the issues raised in OMG's cross-complaint were irrelevant.The court granted the motion for summary judgment and dismissed the cross-complaint.OMG appeals, contending: (1)the court had no authority to grant summary judgment without resolving all contested issues in both the complaint and the cross-complaint; (2) OMG's opposition to the motion for summary judgment raised triable issues of fact; (3) the issues raised by the cross-complaint constituted a defense to the complaint; and (4)the court erred in denying OMG's motion to continue the hearing.

DISCUSSION

Standard of Review

Summary judgment is proper only when the papers submitted show there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law.(Code Civ.Proc., § 437c, subd. (c).)A plaintiff seeking summary judgment must sustain the burden of proof on all theories of its complaint and must also negate all issues raised by the answer and cross-complaint.(Hayward Union etc. School Dist. v. Madrid(1965)234 Cal.App.2d 100, 120, 44 Cal.Rptr. 268.)

Dismissal of Cross-Complaint

OMG contends that Caltrans introduced no evidence to negate the issues raised by OMG's cross-complaint, and summary judgment was therefore improper.However, courts have held that a defendant's motion for summary judgment necessarily includes a test of the sufficiency of the complaint, and the motion is treated as a motion for judgment on the pleadings.(See, e.g., Denton v. City of Fullerton(1991)233 Cal.App.3d 1636, 1640, 285 Cal.Rptr. 297.)We see no reason the same standard should not apply to a plaintiff's motion for summary judgment when a cross-complaint has been filed.

The trial court, in granting summary judgment, did not explicitly determine that the cross-complaint failed to state a sufficient claim for relief.However, such a determination is necessarily implied from the trial court's dismissal of the cross-complaint.(SeeCentinela Hospital Assn. v. City of Inglewood(1990)225 Cal.App.3d 1586, 1595-1596, 275 Cal.Rptr. 901.)Thus, on appeal, the court must determine whether the cross-complaint failed as a matter of law to state facts sufficient to constitute a cause of action.

Under section 5358, ³ Caltrans is required to issue a permit if the application complies with all provisions of the Act and the billboard does not violate any other state law.An unhappy applicant can challenge the denial of a permit by a petition for a writ of mandate before erecting the sign in violation of the Act.(SeeUnited Outdoor Advertising Co. v. Business, Transportation & Housing Agency(1988)44 Cal.3d 242, 245, 242 Cal.Rptr. 738, 746 P.2d 877.)OMG's cross-complaint was a petition for a writ of mandate to challenge the denial of the permits.OMG argues that until the issues raised in its cross-complaint were determined, Caltrans was not entitled to an injunction compelling removal of the billboards.

The cross-complaint alleged that OMG had applied for permits to erect two billboards, and "Said applications were in full compliance with all provisions of the Act and all other provisions of state law.Specifically, the proposed locations are in business areas and within 1,000 feet from a business or commercial activity in an urban area of the County of Riverside.As a consequence, Respondents had a mandatory duty under § 5358 of the Act to issue permits permitting these advertising displays within ten (10) days after processing of the applications."

The cross-complaint further alleged that Caltrans wrongfully denied the applications for permits on the ground the proposed locations were rural rather than urban: "Said refusals were arbitrary, capricious and contrary to law in that the proposed locations are in an area that substantially comports with the definition of 'urban area' as used in the Act and Section 101(a) of Title 23 of the United States Code.Petitioner is therefore entitled to issuance of these permits as a matter of law."

In ruling on a motion for judgment on the pleadings, the court must accept as true all factual matters pleaded in the complaint or cross-complaint.Under this standard, OMG's cross-complaint should not have been dismissed.At least on its face, the cross-complaint states a valid cause of action.(This is not to say that the issue raised in the cross-complaint--entitlement to a permit for billboards at the described locations--could provide any defense to Caltrans' complaint for an injunction.It did not; as we discuss below, Caltrans was entitled to an injunction once OMG erected the billboards without permits.)

We next turn to the grant of the injunction.

Nuisance Per Se

Citing section 5350, ⁴ Caltrans contends that even a wrongful denial of OMG's permit applications would provide no defense to the complaint for an injunction.Caltrans moved for summary judgment on its complaint on the ground that the billboards had been erected without Caltrans permits.OMG admitted it had not obtained permits to erect or maintain the billboards.The billboards were thus public nuisances as a matter of law.(§ 5461;⁵see alsoPeople ex rel. Dept. Pub. Wks. v. Adco Advertisers(1973)35 Cal.App.3d 507, 511, 110 Cal.Rptr. 849.)A billboard erected without a permit is in prima facie violation of the Act and is subject to removal.

Courts have established that it is within the police power to declare an act or condition to be a nuisance for regulatory purposes.(Amusing Sandwich, Inc. v. City of Palm Springs(1985)165 Cal.App.3d 1116, 1129, 211 Cal.Rptr. 911.)"A legislatively declared public nuisance constitutes a nuisance per se against which an injunction may issue without allegation or proof of irreparable injury."(Adco, supra, 35 Cal.App.3d at p. 511, 110 Cal.Rptr. 849.)In Adco, a billboard was erected in compliance with then-current statutes.However, shortly after the billboard was erected, the laws changed, and the billboard became nonconforming.The appellate court upheld an injunction compelling removal of the billboard.(Ibid.)

" 'Where the Legislature has determined that a defined condition or activity is a nuisance ... [t]he function of the courts in such circumstances is limited to determining whether a statutory violation in fact exists, and whether the statute is constitutionally valid.'[Citation.]"(Amusing Sandwich, Inc., supra, 165 Cal.App.3d at p. 1129, 211 Cal.Rptr. 911.)OMG did not challenge the constitutional validity of the Act in the trial court and admitted that a statutory violation existed.As a matter of law, Caltrans was thus entitled to an injunction compelling removal of the billboards.

Moreover, the cross-complaint did not provide a defense to the complaint for an injunction.As discussed in Amusing Sandwich, Inc., supra, when a nuisance per se is shown to exist, the only issues before the trial court in an action to enjoin the nuisance are whether a statutory violation exists and whether the underlying statutes are constitutionally valid.OMG's cross-complaint was not directed to either of these issues.Thus, as a matter of law, the cross-complaint did not provide any defense to Caltrans' complaint for an injunction.

Denial of Motion for Continuance

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