Opinion
Previously published at 15 Cal.App.4th 388, 9 Cal.App.4th 477
As Modified on Denial of Rehearing Oct. 13, 1992.
Review Granted Dec. 17, 1992. [Copyrighted Material Omitted] [Copyrighted Material Omitted] COUNSEL
Joseph A. Forest, Healdsburg, Terry J. Traktman, Novato, for plaintiff and appellant.
Charles E. Spencer, Jr., Interim Chief Counsel, Joseph C. Easley, Asst. Chief Counsel, James E. Livesey, Sacramento, for defendant and respondent.
OPINION
PERLEY, Associate Justice.
Richard Traverso appeals from a summary judgment entered against him in his action seeking declaratory relief. He alleges that the first paragraph of Business and Professions Code section 5463 is unconstitutional because it fails to afford owners of outdoor advertising displays any opportunity for a hearing when the Department of Transportation removes a display or revokes the permit for a display. We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant, Richard Traverso dba Adco Outdoor Advertising (hereinafter Traverso), owned two outdoor advertising billboards in Cotate, California. The billboards were mounted on a "V" type display structure. Both billboards were granted permits in 1959 and later classified as legal, nonconforming displays under the Outdoor Advertising Act, Business and Professions Code sections 5200 et seq. (hereinafter Act) as amended in 1967. (§ 5408, subd. (d).) The billboards were nonconforming under the Act because they were not located in an area zoned primarily for business or industry. In February of 1984 the display structure fell down due to circumstances that are as of yet undetermined. Traverso contends that the display blew over during a wind storm, whereas Respondent, Department of Transportation (hereinafter Caltrans), suggests that it may have fallen as a result of a criminal or tortious act. On February 10, 1984, Caltrans sent Traverso a letter stating that unless Traverso responded within 30 days, his permits would be cancelled. It is disputed whether Traverso responded; however, Caltrans went ahead and cancelled Traverso's permits on April 30, 1984. Permits are ordinarily valid for one year after which they lapse and the sign owner must apply for a renewal for the next year. Traverso's permits would have expired in December of 1984 had they not been cancelled by Caltrans. Traverso also made no attempt to renew the permits for 1985 or 1986.
Unless otherwise indicated, all further statutory references are to the Business and Professions Code sections.
This letter reads as follows: "A recent outdoor advertising field survey conducted by this branch has indicated that the nonconforming structure owned by you located at 04-SON-101-11.88L and covered by Permit # 4262 & 4263 has been removed. [p] Under the provisions of the Outdoor Advertising Act and the California Administrative Code, Title 4, Chapter 6, customary maintenance is allowed in maintaining a sign as well as replacing a downed or damaged structure provided the replacement cost does not exceed 50% of the appraised value of the sign in its pre-existing state. However, this office must be notified of your plans and be provided a reasonable time schedule for the completion of the job. [p] Unfortunately, a new application could not be approved for this nonconforming location. So, unless we hear from you within 30 days, we will have to cancel the permit and remove it from our compensable sign list. [p] If you have any questions regarding the above, feel free to contact this office anytime."
In June of 1986, Traverso began rebuilding the display. Caltrans posted a notice on the display stating that the signs were new placings without permits and thus were in violation of the Act. In 1987, after repeated communication between the parties, Caltrans began to remove the display. Traverso then filed this action against Caltrans, challenging the constitutionality of section 5463 and of Caltrans' actions. He also sought an injunction against removal of the display. Traverso was granted a temporary restraining order pending determination of the issues by the court. In August of 1991, Caltrans brought a motion for summary judgment on the basis that the display was unlawfully placed and maintained in violation of the Act. The court granted the motion and entered judgment in favor of Caltrans, from which Traverso appealed. Enforcement of the order granting summary judgment and dissolving the preliminary injunction has been stayed pending the resolution of this appeal.
DISCUSSION
The question before us is whether the trial court erred in granting summary judgment. On review of summary judgment, the appellate court "appl[ies] the same legal standard as the trial court, which must grant summary judgment if no triable issue exists as to a material fact, and if the moving party is entitled to judgment as a matter of law. (Code Civ.Proc., § 437c, subd. (c).) Emphasizing triable issues rather than disputed facts, summary judgment law turns on issue finding rather than issue determination. [Citation.] We construe the moving party's affidavits strictly, the opponent's affidavits liberally, and resolve doubts about the propriety of granting this disfavored motion in favor of the party opposing it. [Citation.]" (California Aviation, Inc. v. Leeds (1991) 233 Cal.App.3d 724, 731, 284 Cal.Rptr. 687.)
Furthermore, when "the question presented in [the] appeal is one of law, this court is not bound by the trial court's construction of either statutory or decisional law; rather, this court brings to bear its independent judgment. [Citations.]" (McKee v. Bell-Carter Olive Co. (1986) 186 Cal.App.3d 1230, 1233, 231 Cal.Rptr. 304.)
Traverso filed this lawsuit to determine the constitutionality of section 5463 and of Caltrans' actions against him thereunder. At issue is the first paragraph of section 5463 of the Act, which provides: "The director may revoke any license or permit for the failure to comply with the provisions of this chapter and may remove and destroy any advertising display placed or maintained in violation of this chapter after 10 days' written notice posted on such structure or sign and a copy forwarded by mail to the display owner at his last known address."
The balance of the statute, which is not challenged in this appeal, reads as follows: "[p] Notwithstanding any other provision of this chapter the director or any authorized employee may summarily and without notice remove and destroy any advertising display placed in violation of this chapter which is temporary in nature because of the materials of which it is constructed or because of the nature of the copy thereon. [p] For the purpose of removing or destroying any advertising display placed in violation of the provisions of this chapter, the director or his authorized agent may enter upon private property."
Traverso contends that this portion of the Act, and Caltrans' actions in furtherance of the Act violated his right to due process guaranteed under the federal and state Constitutions. He notes that section 5463 does not afford any opportunity for either a pre-seizure or post-seizure hearing when Caltrans cancels a permit and removes a display.
The trial court evidently granted summary judgment for Caltrans because it was of the view that People ex rel. Dept. Pub. Wks. v. Adco Advertisers (1973) 35 Cal.App.3d 507, 110 Cal.Rptr. 849 settled all questions regarding the constitutionality of the Act. However, the court in Adco did not purport to resolve the issues presented by Traverso in the case at bar. The constitutional issue before the court in Adco was solely whether the removal of defendant's billboard, maintained in violation of the Act, constituted a taking of defendant's property for public use without fair compensation. The Adco court rejected defendant's claim, stating that "[a]t least insofar as its provisions are here relevant, the [Outdoor Advertising] Act constitutes a valid exercise of the police power of the state. [Citations.] [p] 'Regulations regarding and restrictions upon the use of property in an exercise of the police power for an authorized purpose, do not constitute the taking of property without compensation or give rise to constitutional cause for complaint.' [Citations.]" (Id. at p. 512, 110 Cal.Rptr. 849.)
The trial judge stated that "the case of People versus Adco, which is 35 Cal.App.3d 507, 110 Cal.Rptr. 849, in my opinion has put to rest the issue of the constitutionality of the act. So I think as a matter of law in this case the defendants were entitled to abate the nuisance under the act, that the act was constitutional, and there simply is no triable issue of material fact in this case."
It was with respect to the issue of fair compensation alone that the Adco court found that the plaintiff's actions were a valid exercise of authority which did not give rise to a constitutional cause for complaint. The Adco court did not reach the question of whether section 5463 affords due process. It is a fundamental principle of precedent that "[l]anguage used in any opinion is of course to be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a proposition not therein considered." (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2, 39 Cal.Rptr. 377, .) Hence, the trial court erred in holding that the Adco case was dispositive on all constitutional issues, including the procedural due process issue presently in question.
Furthermore, while there have been several appellate decisions involving the Act and billboards in violation of its provisions, none have addressed due process in connection with section 5463. Thus, the issue here appears to be one of first impression.
See, e.g., People ex rel. Dept. of Transportation v. Hadley Fruit Orchards, Inc. (1976) 59 Cal.App.3d 49, 130 Cal.Rptr. 287 [rejecting defendant's claim that payment of compensation after forced removal was an unconstitutional taking without prior payment]; People ex rel. Dept. of Pub. Wks. v. Golden Rule Church Assn. (1975) 49 Cal.App.3d 773, 122 Cal.Rptr. 596 [finding that compensation is inappropriate and that the state did not act discriminatorily in removing plaintiff's billboard]; People ex rel. Dept. Pub. Wks. v. Ryan Outdoor Advertising, Inc. (1974) 39 Cal.App.3d 804, 114 Cal.Rptr. 499 [movement of a billboard constituted a new placing under the revised construction of the provisions of the Act]; People ex rel. Dept. of Transportation v. Desert Outdoor Advertising, Inc. (1977) 68 Cal.App.3d 440, 137 Cal.Rptr. 221 [section 5412 of the Act is not unconstitutional as a denial of equal protection]; People ex rel. Dept. of Transportation v. Harris (1982) 128 Cal.App.3d 264, 180 Cal.Rptr. 148 [the purpose of a sign is to be determined by reading text in light of existing circumstances].
We conclude that the first paragraph of section 5463 of the Act is unconstitutional on its face because it does not provide for the fundamental due process right of an opportunity to be heard before sign owners are deprived of their property.
Both the United States and the California Constitutions establish as a basic right that a person may not be deprived of life, liberty, or property without due process of law. In Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294, 138 Cal.Rptr. 53, , our Supreme Court unanimously reaffirmed this fundamental due process guarantee of an opportunity to be heard when property is seized. The court in Kash overturned an ordinance that authorized the police to summarily remove newsracks which failed to conform to specific size, weight, appearance and placement restrictions, without providing for a hearing either before or after seizure. The court noted that " '[w]e start with the basic proposition that in every case involving a deprivation of property within the purview of the due process clause, the Constitution requires some form of notice and a hearing.' (Beaudreau v. Superior Court (1975) 14 Cal.3d 448, 458 .) As the United States Supreme Court noted more than a quarter century ago: 'Many controversies have raged about the cryptic and abstract meaning of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property ... be preceded by notice and opportunity for hearing appropriate to the nature of the case.' (Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 313 [94 L.Ed. 865, 872-873, 70 S.Ct. 652, 656].)" ( Id. 19 Cal.3d at p. 307, 138 Cal.Rptr. 53, .)
The Supreme Court emphasized the necessity of a due process hearing in Randone v. Appellate Department (1971) 5 Cal.3d 536, 550, 96 Cal.Rptr. 709, , holding unconstitutional a statute that authorized a creditor to attach the assets of a debtor without a hearing. The court noted that it "has frequently recognized that the most fundamental ingredient of the 'due process' guaranteed by our state Constitution is 'a meaningful opportunity to be heard.' ... Justice Traynor, writing for a unanimous court in Mendoza v. Small Claims Court (1958) 49 Cal.2d 668, 672 , stated the constitutional principle most succinctly: 'When public necessity demands, there may be action followed by a hearing. Otherwise due process requires that no person shall be deprived of a substantial right without notice and hearing.' " (Id. at pp. 550-551, 96 Cal.Rptr. 709, [numerous citations omitted; emphasis in the original].)
The Courts of Appeal have reaffirmed the right to due process in several recent cases. (See Leslie's Pool Mart, Inc. v. Department of Food & Agriculture (1990) 223 Cal.App.3d 1524, 273 Cal.Rptr. 373 [seizure of oxidizing agents without a hearing held to be unconstitutional]; Bryte v. City of La Mesa (1989) 207 Cal.App.3d 687, 255 Cal.Rptr. 64 [seizure of handguns from mentally ill owner without hearing opportunity violated due process].) In Menefee & Son v. Department of Food & Agriculture (1988) 199 Cal.App.3d 774, 245 Cal.Rptr. 166, the court overturned a statute that allowed the director of the Department of Food and Agriculture to summarily seize and destroy crops treated with an unauthorized "economic poison" without providing for any hearing opportunity whatsoever. The court noted that when "a significant property interest is at stake, neither the egregiousness of the alleged misconduct nor the apparent lack of a meritorious defense can obviate the requirement that the plaintiffs be accorded minimal due process protections. [Citation.] [p] The procedural requirements that are necessary to satisfy due process necessarily vary according to the competing interests of the government and the citizen. [Citation.] Although due process encompasses a broad range of safeguards, in essence the concept guarantees a fundamentally fair decision-making process. [Citation.] Thus, at a minimum, due process requires notice and an opportunity for a hearing." (Id. at p. 781, 245 Cal.Rptr. 166 [internal quotation marks omitted].)
Generally, due process dictates that the hearing opportunity must be provided prior to a governmental taking. In special circumstances involving overriding state interests, the government may be justified in postponing notice and hearing until after the taking has occurred. (See, e.g., Calero-Toledo v. Pearson Yacht Leasing Co. (1974) 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 [seizure of a vessel used to smuggle drugs]; Ewing v. Mytinger & Casselberry (1950) 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 [seizure of misbranded drugs]; North American Storage Co. v. Chicago (1908) 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 [seizure of contaminated food]; State Savings etc. Bank v. Anderson (1913) 165 Cal. 437, 132 P. 755 [seizure and liquidation of unsound banks].) However, as our Supreme Court has observed, "[e]ven when such special considerations pertain, ... the cases have stressed that an opportunity to be heard may only be postponed, not entirely eliminated." (Kash, supra, 19 Cal.3d at p. 308, 138 Cal.Rptr. 53, .)
The court in Kash also noted the scope of due process protection when it held that "due process protections apply to takings of all non-'de minimis' property interests." (Kash, supra, 19 Cal.3d at p. 308, 138 Cal.Rptr. 53, .) Billboard owners in Traverso's position clearly fall into the class of property owners entitled to due process protection because their displays represent a significant property interest. Traverso's display is valuable property, costing $20,000 to $25,000 for the structure and generating revenues of several thousand dollars per month. Thus, even though the court in People ex Rel. Dept. Pub. Wks. v. Adco Advertisers, supra, 35 Cal.App.3d 507, 110 Cal.Rptr. 849, determined that displays in violation of the Act were nuisances per se which the state has a right to abate, when an owner has a protectible property interest in a display, the state cannot destroy that display without satisfying the due process requirement of a hearing regarding the alleged violation. "Although it is elementary that an owner of property has no constitutional right to maintain it as a public nuisance, it is equally elementary that he has a clear constitutional right to have it determined by due process whether in fact and law it is such a nuisance. As against this right, no ex parte declaration, however formal, by municipal authorities that it is a nuisance is final as against him.
We do not conclude that every display constitutes a significant property right meriting due process protection. Our holding does not extend to "temporary" displays within the meaning of the second paragraph of section 5463, which Caltrans may summarily abate pursuant to that paragraph. Summary abatement may also be warranted in the case of billboards erected by those who have not applied for permits or complied with the statutory requirements to have a permit issued. At least one out-of-state court has held that no "protectible property interest" arises under the federal Constitution in such circumstances (see Department of Transp. v. Durden (Fla.1985) 471 So.2d 1271, 1272 [owner of sign erected in knowing violation of the law not entitled to due process] ), and the same conclusion would obtain under our state Constitution (see generally Smith v. Board of Medical Quality Assurance (1988) 202 Cal.App.3d 316, 327, 248 Cal.Rptr. 704 [due process considerations in California] ).
"...
"[I]n such cases as this due process of law requires that any order of demolition of private property under the police power must be based upon competent sworn evidence that the subject property falls within the legal concept of a nuisance [citations], and that in fairness and in justice there is no other way reasonably to correct the nuisance. [Citations]." (Leppo v. City of Petaluma (1971) 20 Cal.App.3d 711, 717-718, 97 Cal.Rptr. 840.)
Traverso's permit was also a significant property interest subject to due process protection. "[W]hether the license is granted as a privilege or recognized as a vested right, ... it is the policy of our law that a person should not be deprived even of a 'permit' to engage in a legitimate business without a fair and impartial hearing and without an opportunity to present competent evidence for consideration by the licensing authority in opposition to the proposed revocation of his permit." (Trans-Oceanic Oil Corp. v. Santa Barbara (1948) 85 Cal.App.2d 776, 797, .) The court in City of San Marino v. Roman Catholic Archbishop (1960) 180 Cal.App.2d 657, 669, 4 Cal.Rptr. 547 held that "[i]n determining that a permit, validly issued, should be revoked, the governing body of a municipality acts in a quasi-judicial capacity. In revoking a permit lawfully granted, due process requires that it act only upon notice to the permittee upon a hearing, and upon evidence substantially supporting a finding of revocation.... 'The resolution or revocation ... adopted without notice or hearing or reception of competent evidence, was inoperative and of no legal force.' " (Emphasis in the original.)
We note that the lapsing of a permit is not equivalent to the revoking of a permit and does not raise the same due process considerations. When a state-created interest lapses, no notice or hearing opportunity is required, because the holder is deemed to have knowledge of the relevant law. (Texaco, Inc. v. Short (1982) 454 U.S. 516, 533-538, 102 S.Ct. 781, 794-797, 70 L.Ed.2d 738.) In Texaco, the United States Supreme Court held that a statute that did not provide notice of an impending lapse of a mineral interest did not violate procedural due process. The court distinguished the "self executing feature" of the statute from a "subsequent judicial determination" in a quiet title action over reversion of a mineral interest where the right to notice and a hearing was undisputed. (Ibid; see also United States v. Locke (1985) 471 U.S. 84, 105 S.Ct. 1785, 85 L.Ed.2d 64; Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 278 Cal.Rptr. 346, .) Thus, Caltrans only has to provide notice and a hearing prior to revoking a permit, and not prior to a permit lapsing at the end of the year.
Thus, when a sign owner has followed the statutory requirements and is properly issued a permit, as in the present case, the owner acquires a significant property interest in both the permit and the display, and is entitled to due process protection. A statute that allows for the deprivation of those protected property interests must provide for the requisite due process.
The Supreme Court held in Kash that when a statute calls for the actual destruction of a significant property interest "there can be no doubt of the necessity of testing the validity of the ordinance's seizure procedure against the strictures of due process." (Kash, supra, 19 Cal.3d at pp. 308-309, 138 Cal.Rptr. 53, .) The court concluded that "[u]nder the principles reviewed above, the challenged ordinance clearly fails that constitutional test. Although the ordinance authorizes a taking of a newsrack owner's property, it does not accord the owner the most basic safeguard demanded by due process--an opportunity to be heard on the merits of the taking, either before or after the taking. In the face of this fundamental constitutional defect, section 5 of the ordinance cannot stand." (Id. at p. 309, 138 Cal.Rptr. 53, .)
Since the first paragraph of section 5463 also sanctions the actual destruction of permitted advertising displays, we are faced with a similar obligation to test its facial validity, and because it also fails to provide for any pre- or post-seizure hearing opportunity on the merits, it too is unconstitutional on its face, and we cannot allow it to stand.
This conclusion does not leave Caltrans powerless to remove illegal permanent displays, which may still be properly abated under the general public nuisance statutes (Civ.Code, § 3480, et seq.). (See § 5461 [illegal displays are public nuisances]; and § 5465 [Act's remedies are not exclusive of any other remedies provided by law].)
Caltrans' arguments to avoid this result are unavailing. First it contends that since violations of the Act are nuisances per se, no hearing is necessary to determine whether a display in violation is properly subject to abatement. This argument misses the point, however, because the violation must be properly established. Since under section 5463 the finding of a violation automatically grants the state the right to abate the display as a nuisance, a hearing opportunity must be provided prior to the director's determination that a display is in violation of the Act in order to satisfy due process.
In Leslie's Pool Mart, Inc. v. Dept. of Food and Agriculture, supra, 223 Cal.App.3d 1524, 1534, 273 Cal.Rptr. 373, the court explained the importance of a prior hearing in such circumstances. The court held that the director of the Department of Food and Agriculture violated Leslie's constitutional right to due process by failing to provide for a hearing either before or after the seizure and quarantine of 1,240 pounds of Leslie's oxidizer as an unregistered pesticide. The court noted that "[t]he director's summary seizure of unregistered products cannot be justified on the basis of an insubstantial risk of error. We recognize the director is not likely to make a mistake about whether or not the product is registered. But the question to be determined before carrying out a seizure under section 12961 is not whether the product is registered as a pesticide but whether it is required to be registered as a pesticide. This can sometimes be a complex question of law and fact." (Ibid.)
Similarly, in the case at issue, the question to be determined is not whether a display in violation of the Act can be abated as a nuisance, but whether a display is actually in violation of the Act. Such a determination sometimes involves factual disputes and statutory interpretation. (See, e.g., People ex. rel. Dept. of Transportation v. Hadley Fruit Orchards, Inc., supra, 59 Cal.App.3d 49, 130 Cal.Rptr. 287 [the question of whether a billboard was in a "business area" or in violation of the Act was not appropriate for summary judgment].) Due process dictates that owners of advertising displays be afforded an opportunity to be heard before such a determination is made.
Despite its failure to include a hearing provision in section 5463, the Legislature appears to recognize the need for a hearing in comparable circumstances. In 1987, chapter 2.6 (§§ 5499.1, et seq.) was added to the Business and Professions Code authorizing city and county governments to regulate on-premises advertising, and suggesting a statutory scheme for such regulation. (Stats.1987, ch. 1281, § 6, pp. 4569, et seq.) A section is included which provides for a hearing before a legislative body prior to any removal of a display in violation of the regulations. (§ 5499.7 [after hearing and considering objections, legislative body acquires jurisdiction to perform work of removal].)
Caltrans next argues that requiring a hearing would curtail its ability to "effectively control" billboards which could in turn jeopardize million of dollars in federal highway funds. The relevant federal statute which mandates effective billboard control, 23 United States Code section 131, was amended in 1991 under the Federal Intermodal Surface Transportation Efficiency Act. The newly added subsection, 131(r), requires that owners remove unlawfully erected signs within 90 days, or if they refuse, the state must remove the signs at the owners' expense. Caltrans states that it has to summarily remove 143 to 225 displays per year, and argues that the added delay of a hearing would allow illegal billboards to remain in place for an unnecessarily long time. Caltrans argues without authority that increased delays could be considered by the federal government to be "ineffective control," which may then threaten federal highway funds.
This argument is unpersuasive for several reasons. First, as noted earlier, a billboard has not lawfully been determined to be a nuisance per se subject to abatement until the owner has had an opportunity for a hearing on the merits of the issue. Thus, the requirement of a prior hearing will not increase the relative time period that an illegal display is in place.
Second, our examination of the outdoor advertising regulation statutes of several states reveals that at least four other states specifically provide for a hearing opportunity when a display is removed or when a permit is revoked. (See Florida Stats. § 479.107; Georgia Stats. § 32-6-79; Alabama Stats. § 23-1-275; Colorado Stats. § 43-1-412.) These states presumably have not suffered any significant loss of federal highway funds as a result.
Finally, a Congressional directive to maintain "effective control" of advertising displays cannot be construed to mandate dispensing entirely with fundamental due process rights. Nor does a decrease in administrative efficiency and the vague threat of a possible loss of highway funds justify a complete denial of any opportunity to be heard. The court in Menefee & Son v. Department of Food & Agriculture, supra, 199 Cal.App.3d 774, 245 Cal.Rptr. 166, noted that "in some emergency situations the legitimate and overriding interests of the government may permit summary action. [Citation.] In such circumstances the opportunity for a hearing may be postponed but not eliminated. [Citation.]" (Id. at p. 781, 245 Cal.Rptr. 166, emphasis added.) Caltrans counters that the due process right to a hearing has not been eliminated because Traverso can still bring an independent action in the courts or petition for a writ of mandate. Caltrans' sole authority for this proposition is C.V.C. v. Superior Court (1973) 29 Cal.App.3d 909, 106 Cal.Rptr. 123, which involved a child, under the custody and control of the social welfare agency, who was removed from an adoption placement without a hearing. The court held that "[t]he availability of an independent judgment review in the superior court salvages an administrative procedure which would otherwise violate the constitutional guarantee [of a prior administrative hearing]." (Id. at p. 918, 106 Cal.Rptr. 123.) However, we note that C.V.C. v. Superior Court is distinguished from the present case in that the state has an overwhelming interest in the safety of children placed in its care which justifies a lesser degree of due process protection. Such an extreme state interest is not implicated in the need to maintain effective control over the removal of billboards.
For the case at hand, Kash Enterprises, Inc. v. City of Los Angeles, supra, 19 Cal.3d 294, 138 Cal.Rptr. 53, is more relevant factually than C.V.C., and is dispositive on the issue of independent judicial review. The Kash court held that "[n]ot one of the scores of recent procedural due process decisions, however, suggests that the availability of a collateral judicial remedy can sustain a seizure procedure which provides absolutely no hearing whatsoever, either before or after the taking. [Citations omitted]. Acceptance of the city's position would in effect read out almost all of the protections afforded by contemporary procedural due process doctrine, and would place on the party whose property has been taken the additional financial burden of instituting an action for the property's return." (Id. at p. 309, 138 Cal.Rptr. 53, .)
The court in Menefee, supra, 199 Cal.App.3d at pp. 782-783, 245 Cal.Rptr. 166, held that "[i]n any event, even if we concluded that the availability of a judicial action could serve as a substitute for an administrative hearing, we would still find [the seizure authorization statute] deficient. It compels the owner to institute the action rather than the department. [Citations.] It gives the owner just 30 days to institute an action or his crop will be destroyed and provides no form of compensation in the event the deprivation of property proves to have been wrongful. [Citations.] The statute does not require notice of the type of proceeding which may be instituted. [Citations.] And, even more critically, it does not provide for the type of judicial hearing which would be essential to provide due process. In short, if a judicial proceeding is the owner's first and only opportunity to have a hearing on the merits of the seizure, then it is essential that the department be required to bear the burden of proof on all issues and the statute must so provide." Thus, the court found that even after plaintiffs instituted an action for injunctive relief, they had "not yet been accorded the minimal due process to which they are entitled before the government may interfere with their property interests." (Ibid.)
The statute in the case at hand suffers from the same deficiencies as the Menefee statute. While section 5463 does require some form of notice before seizure, it fails to provide for the constitutional right of an opportunity to be heard either before or after removal of a display or revocation of a permit. Furthermore, in this case, contrary to the requisites of due process noted in Menefee, Traverso, rather than Caltrans, would presumably have borne the burden of proof had the action gone beyond summary judgment. Thus, we find that even after initiating this action for injunctive relief Traverso also has not been accorded the minimal due process to which he is entitled.
Traverso contends that the 10-day notice requirement in the first paragraph of section 5463 only applies to the removing of displays, but we construe the requirement to apply to the revocation of a license or permit as well.
Caltrans also submits that the constitutional issue can be avoided because there is no question that the present sign is unlawful. It is undisputed that Traverso did not have a permit and did not apply for one under section 5486 when he put the display back up in 1986. However, any such application would have been an idle act. As Caltrans pointed out in its 1984 letter about cancellation of the permit, once the permit was cancelled "a new application could not be approved" because the location was "nonconforming" under the Act and the sign would no longer be grandfathered under the prior law. Applications to renew the permit would have been equally unavailing because there was nothing to "renew" after the permit was cancelled. Hence the problem with the present sign stems directly from cancellation of the permit in 1984, and the adequacy of the authority used to cancel the permit remains a valid question.
We note finally that, insofar as it appears from the record on summary judgment, Traverso's permit may have been improperly revoked. If Traverso's display fell over in the wind as his evidence indicates, then there was no basis for cancellation of his permit in 30 days. This case thus demonstrates the potential utility of a pre-cancellation hearing. DISPOSITION
Under the Act, a permit may be revoked on 30-days' notice only if a display falls as the result of a criminal or tortious act. (See Cal.Code Regs., tit. 4, § 2272.) Neither the Act nor the regulations thereunder specify what is required of owners whose signs are downed for reasons that are not criminal or tortious. In addition to revising the first paragraph of section 5463, we urge the Legislature to make some provision for billboards that are destroyed by the forces of nature.
The judgment in favor of Caltrans is reversed. The case is remanded with instructions to enter judgment in favor of Traverso consistent with this opinion. Costs to Traverso.
ANDERSON, P.J., and Poche, J., concur.
We note also that while permits and displays represent different significant property interests, in most circumstances only one hearing would be necessary to satisfy due process. Presumably, a hearing on cancellation of the permit would also address issues justifying the removal of the permitted display since failure to have a permit is a violation of section 5461 and is grounds for removal. However, section 5463 sanctions the taking of both classes of property interests without providing for any hearing whatsoever.