Traverso v. Department of Transportation
| Decision Date | 20 March 2001 |
| Docket Number | No. A087456.,A087456. |
| Court | California Court of Appeals Court of Appeals |
| Parties | Richard TRAVERSO, Plaintiff and Appellant, v. DEPARTMENT OF TRANSPORTATION, Defendant and Respondent. |
Terry J. Traktman, Novato, Joseph A. Forest, Petaluma, for Appellant.
William M. McMillan, Chief Counsel, Brelend C. Gowan, Deputy Chief Counsel, Richard W. Bower, Assistant Chief Counsel, O.J. Solander, for Respondent.
Richard Traverso dba Adco Outdoor Advertising appeals from an order dismissing his first amended petition for writ of mandate and complaint for damages (the complaint) against the California Department of Transportation (Caltrans) after Caltrans's demurrer was sustained without leave to amend. This suit unsuccessfully attempts to revive permits for billboards which were canceled over a quarter-century ago. The dismissal is affirmed.
The permits in question are for four billboards along Highway 101 in San Mateo County. The prior owners of the billboards are described as Traverso's "predecessor[s] in interest"; he is apparently the assignee of their rights in the billboards and the permits for them. One of the permits was issued in the 1930's, two in the 1950's, and one in 1972. The complaint states that the permits were canceled by Caltrans in 1973-1975. During that period the billboards were evidently taken down or converted to less lucrative "on-site" advertising, which does not require a permit from Caltrans under the Outdoor Advertising Act (hereafter the Act; Bus. & Prof.Code, § 5200 et seq.) and is limited to advertising of business conducted on the property where the billboard is placed (Bus. & Prof.Code, § 5272, subds. (c) & (d)).1
The complaint alleges that the permits for the billboards were unlawfully canceled without notice by Caltrans, and that Caltrans "failed to provide the permittee with any review or appeal procedure regarding said permit cancellation, and failed to provide any compensation." The complaint indicates that Traverso requested a renewal of one of the permits by letter dated November 26, 1997, which tendered a $20 renewal fee and offered to pay any "penalty fees," but that Caltrans did not respond to the request. As to the other three permits, the complaint alleges that Caltrans "does not acknowledge that administrative remedies are or were available for the relief being sought and thus, any attempt by [Traverso] to exhaust administrative remedies would be futile." The complaint seeks to compel Caltrans by writ of mandate to reissue or renew the permits or, alternatively, to recover damages on an inverse condemnation theory for loss of the permits and the revenue they could have generated.
Caltrans's demurrer was sustained without leave to amend on the grounds that the causes of action were barred by statutes of limitation, and by section 5360, subdivision (b), which provides that "Any permit that was not renewed after January 1, 1993, is deemed revoked."
A demurrer tests issues of law raised by a pleading (5 Witkin, Cal.Procedure (4th ed.1997) Pleading, § 899, p. 357), and is properly sustained without leave to amend as to a complaint "where the facts are not in dispute, and the nature of the plaintiffs claim is clear, but, under the substantive law no liability exists" (id. at § 946, p. 403). Since there is no viable cause of action in this instance, the court correctly sustained the demurrer without leave to amend and dismissed the case.
It is undisputed that all statutes of limitation have expired on any challenges to revocations of the permits in question in the 1970's.2 For purposes of the statutes of limitation Traverso is in no better position than the assignors of his permits. (See Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal. App.4th 1160, 1216, 52 Cal.Rptr.2d 518 [].) Traverso relies on cases decided long after challenges to revocation of the permits were time-barred; those decisions did not "reincarnate dead causes which had fallen to the sword of the statute [of limitations]." (Monroe v. Trustees of the California State Colleges (1971) 6 Cal.3d 399, 406-407, 99 Cal.Rptr. 129, 491 P.2d 1105.) "[T]he rule of law established by the new decision governs events occurring prior to the date of decision, when such events are at issue in timely filed actions." (Id. at p. 407, 99 Cal.Rptr. 129, 491 P.2d 1105.)
Nevertheless, Traverso asserts that this case "is not based directly" on the allegedly "unlawful cancellations" of the permits in the 1970's (see People ex ret. Dept. of Transportation v. Ad Way Signs, Inc. (1993) 14 Cal.App.4th 187, 197, 17 Cal. Rptr.2d 496 [] ), but rather on Caltrans's "current refusal to renew [the] permits in 1997." Traverso explains that he is only seeking to compel Caltrans to accede to his 1997 demand to renew the permits, and that he is not suing for damages dating back to the permit revocations, "but only those commencing with the failure to renew." He reasons that his causes of action as so described did not accrue until 1997, and thus that they were timely filed.
No matter how Traverso tries to slice it, however, this case involves setting aside permit revocations that occurred over 25 years ago. We presume that the billboards Traverso seeks to resurrect for off-premises advertising or convert to that use could not have been lawfully placed for that purpose for the first time in 1997.3 Were it otherwise, Traverso could simply have applied for new permits for the billboards, rather than filing this lawsuit for renewal or "reissuance" of the original permits. It is also apparently conceded that there would be no claim to renewal or reissuance of the original permits if those permits had been lawfully revoked. Otherwise, there would have been no reason for Traverso to allege that the revocations were unlawful. Thus, while Traverso attempts to frame the issue in terms of Caltrans's alleged duty to renew or reissue the permits in 1997, he must overturn the original permit revocations.
To "revoke" or "cancel" as commonly understood means to annul, terminate, or destroy (see People ex rel. Dept. of Transportation v. Ad Way Signs, Inc., supra, 14 Cal.App.4th at p. 197, fn. 12, 17 Cal.Rptr.2d 496; People v. Demperio (1995) 86 N.Y.2d 549, 634 N.Y.S.2d 672, 658 N.E.2d 718, 719; Teeter v. Allstate Insurance Company (1959) 9 A.D.2d 176, 192 N.Y.S.2d 610, 616), and there is no basis for attributing any different meaning to the revocation of a billboard permit. When the permits here were revoked they were extinguished, and when the deadlines for challenging the revocations expired they were extinguished conclusively. From that point they were no longer capable of "renewal." (See Winokur v. Michigan State Board of Dentistry (1962) 366 Mich. 261, 114 N.W.2d 233, 235 []; Flamingo, Inc. v. Nebraska Liquor Control Com'n. (1969) 185 Neb. 22, 173 N.W.2d 369, 371 []; Carter v. Brooklyn Life Ins. Co. (1888) 110 N.Y. 15, 17 N.E. 396, 399 [].) Once a permit is conclusively extinguished it is also misleading to refer to a "re issuance" of the permit; from that point there could only be a new issuance. (Cf. People ex rel. Dept. of Transportation v. Ad Way Signs, Inc., supra, 14 Cal.App.4th at p. 197, fn. 12, 17 Cal.Rptr.2d 496 []; § 5485, subd. (b) [].)
Since the time for challenging the revocations here has passed, Traverso is in the position of any new applicant as to the permits in question. In that posture, as has been observed, he is not entitled to the permits. Accordingly, we hold that he has no cause of action for denial of the permits.
Traverso advances essentially two arguments to avoid this result. First, he contends that because the permits were revoked without due process, the revocations were a nullity and in effect never occurred. Thus, the permits were at worst expired, not revoked, and he submits that even long-expired permits are capable of renewal. He maintains that section 5360, subdivision (b), which provides that permits not renewed after January 1, 1993, are deemed revoked, cannot be applied here because that law did not take effect until after this case was filed. Thus, Caltrans breached an ongoing duty to renew the permits. Alternatively, Traverso urges that even if the permits were effectively revoked, he has a cause of action for their "reinstatement." These theories are untenable.
The first line of argument is predicated on the holding of Traverso v. People ex rel. Dept. of Transportation, supra, 6 Cal.4th at p. 1162, 26 Cal.Rptr.2d 217, 864 P.2d 488, that billboard permits are property interests protected by due process, and thus that notice and an opportunity to be heard must be afforded before they are revoked. A due process violation is established for purposes of the demurrer herein by the complaint's allegations that no such notice and hearing opportunity were provided before the permits in question were canceled. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58 [].) As previously noted, however, the 1993 decision in Traverso v. People ex rel. Dept. of Transportation did not revive any expired claims Traverso or his...
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