SCHER v. BURKE

Appellants, Jaime Scher and Jane McAllister, Reply Brief on the Merits

Cal.June 13, 2016

SUPREME COURT $230104 FILED IN THE SUPREME COURT JUN 13 2016 OF THE STATE OF CALIFORNIA Frank A. McGuire Clerk a Deputy JAIMEA. SCHER,et al., Plaintiffs, Appellants and Respondents, CRC V. 8.25(b) JOHN BURKE,et al., Defendants, Appellants and Respondents. FILED WITH PERMISSION On Review From The Court Of Appeal For the Second Appellate District, Division Three, 2nd Civil No. B235892 After An Appeal From the Superior Court For The State of California, County of Los Angeles, Case Number BC 415646, Hon. Malcolm Mackey REPLY BRIEF ON THE MERITS (AS TO ALL ANSWERBRIEFS) ALESHIRE & WYNDER, LLP JUNES. AILIN, STATE BAR NO. 109498 jailin@awattorneys.com 2361 ROSECRANSAVE., SUITE 475 EL SEGUNDO, CALIFORNIA 90245 Telephone: (310) 527.6660 — Fax: (310) 532.7395 Attorneysfor JAIME A. SCHER andJANE McALLISTER 01206.0001/299753.1 $230104 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA JAIME A. SCHER,etal., Plaintiffs, Appellants and Respondents, Vv. JOHN BURKE,et al., Defendants, Appellants and Respondents. On Review From The Court Of Appeal For the Second Appellate District, Division Three, 2nd Civil No. B235892 After An Appeal From the Superior Court For The State of California, County of Los Angeles,Case Number BC 415646, Hon. Malcolm Mackey REPLY BRIEF ON THE MERITS (AS TO ALL ANSWERBRIEFS) ALESHIRE & WYNDER, LLP JUNE 8S. AILIN, STATE BAR NO.109498 jailin@awattorneys.com 2361 ROSECRANSAVE., SUITE 475 EL SEGUNDO, CALIFORNIA 90245 Telephone: (310) 527.6660 — Fax: (310) 532.7395 Attorneysfor JAIME A. SCHER andJANE McALLISTER 01206.0001/299753.1 TABLE OF CONTENTS Page I. INTRODUCTION00.ceeste reece ceseeteeesseeseeeeerseesseeaseaseneneey 1 Il. THELEGISLATIVE HISTORY DOES NOT CONCLUSIVELY SHOW THE LEGISLATURE INTENDED TO DISMISS DECADES OF CASE LAW ON IMPLIED DEDICATION OF ROADS...eeeceeneetees 3 A. Gion-Dietz Defined the Scope of Whatthe Legislature Was Trying to Address; The Legislative History is Silent Regarding Roads Because Roads Were Not TheIssue .........eee eeeeeeeeeeees 3 B. There Is No Clear Statement Of Legislative Intent To Reverse A Longstanding BodyofLaw ..............00. 12 C. The Limited Use OfThe Word “Recreational”Is Not Determinative.........ccccccccssssccssseceeessseeceresseeeseessseeees 13 D. Subdivision (a) Of Section 1009 Is Not Just A “Preamble”........sccesscsecessccsssecesnecesceeseceesetecsetessersneesseceaee L4 IW. THE LEGISLATURE’S AMENDMENTOF CIVIL CODE SECTION 813 CONCURRENTLY WITH ENACTING SECTION 1009 SUPPORTS THE CONTINUED EXISTENCE OF THE LAW OF IMPLIED DEDICATION WITH RESPECT TO ROADS..... 16 IV. THERE IS NO FUNCTIONAL DIFFERENCE BETWEEN A DEDICATION IMPLIED IN FACT AND A DEDICATION IMPLIED IN LAW; THE 1970 DECLARATIONS AND GRANTS OF EASEMENTS ESTABLISHED AN INTENT TO DEDICATE ROADS AND THE LAW PROVIDED FOR ACCEPTANCE OF THE DEDICATION BY USE1...cceccceseteeeeereneeeeseeeenens 19 V. THE PRACTICAL ISSUES DEFENDANTSRAISE ARE NOT RELEVANT TO INTERPRETATION OF SECTION 1009 ooo.cesceseccsesseeseeenseesscerenensenssseeesesesesees 22 A. Mindreading is Not Required...ceeeeseeeeeseeeeeeeaeens 23 01206.0001/299753.1 t B. Defining “Recreational” Use Is Not AnIssue............... 24 C. Liability Issues Can Be Addressed By Insurance.......... 25 D. The Solution is Found in Sections 813 and 1008.......... 27 VI. PLAINTIFFS DO NOT HAVE A SECURE, RELIABLE AND SAFE ALTERNATIVE ROUTE TO AND FROM THEIR HOME...eeecesececsccsecneeseeeseeneeaeeaeeeseecseeeaeseneatsaes 27 VIE. CONCLUSIONooeeecesseeseeetesseesseeeseesaeenseensneseesseseeeane 29 01206.0001/299753.1 it TABLE OF AUTHORITIES 01206.0001/299753.1 lil Page State Cases Applegate v. Ota (1983) 146 Cal.App.3d 702 0... cecesesceescescesneeeateeseeeeeresseessnesaes 10 Biagini v. Beckham (2008) 163 CalApp.4th 1000 20...eeeeeccseesceseesneeeeeeeesetseseaees 22 Big Creek Lumber Co. v. County ofSanta Cruz (2006) 38 Cal. 4th 1139oececeseteeesseeeseeceaceetsaeeeeeeeeessesseeenes 12 Briggs v. Eden Councilfor Hope & Opportunity (1999) 19 Cal.4th 1106...ceeseceseseeeseeceeeseeesteeesreeseeeeseeens 14, 15 Burden v. Snowden | (1992) 2 Cal4th 556 ooo.eceesseesseeesecesasesneeseesseersseeeeseeeeeeneenees 13 Bustillos v. Murphy = (2002) 96 Cal.App.4th 1277 0.0... ecccccesceseesteceteeescesessseeeensesenees 10, 11 City ofSan Diego v. Hall (1919) 180 Cal. 165 occesseesceeeecssesesseeteeesseessaeeseneetseesseenssensees 7 County ofLos Angeles v. Berk (1980) 26 Cal.3d 20] oooeeeeeeseeeseeesceseeseeeseeeneesteeseseeeerseeseas 5, 8,9 County ofOrangev. Cole (1950) 96 Cal.App.2d 163 oo. cceeeeceesecessececeresseeseceeseeesneesressesetensees 22 Dooling v. Dabel (1947) 82 Cal.App.2d 417 ooo. cecscccessetsesceseceesseeeeeesseseseessesnesees 10 F.A. Hihn Co. v. City ofSanta Cruz (1915) 170 Cal. 436 occcceccesseessceceeteeseeeeeseeeesaeeseeeecoesatesseeseeeses 7 Flannery v. Prentice (2001) 26 Cal.4th 572 oo... ee cescseecesscessessessesseesenessnecennesseeeeeseessneenes 24 Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 CalApp.4th 1233 ooo. ceccesesecssesceceseeseesseceseesseessessseenes 24 Hanshaw vy. Long Valley Road Assn. (2004) 116 CalApp.4th 471 oooecccecncescssessseereeeseneeses 20, 21, 22 Heritage Residential Care, Inc. v. Division ofLabor Standards Enforcement (2011) 192 CalApp.4th 75 ooececceseesesssceseeessesenseseseeesseesseteenes 24 Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749 ooocccesecesnsestecsteeeneesnsettecsseesereeses 1] In re Young (2004) 32 Cal.4th 900 oo... ee cceccssecssetecsseeensceesesnsseasessessesseeeeneeeaes 14 Jordan v. City ofSacramento (2007) 148 CalApp.4th 1487 ooo... cececccceessseeeeeesseeeesseesseesnenesseees 26 Klein v. United States (2010) 50 Cal.4th 68 ooo... ccccceseeeseeseeecseceeteceeeesceeeeseeseeseenseeenees 13 Longshore v. County of Ventura (1979) 25 Cal.3d 14eeecesceecessecseessecsseeseteteeneeeersteneeesresessseees 19 Manhattan Beach v. Cortelyou (1938) 10 Cal.2d 653 oessceesesessecesssseccsacesseeesresseessesseseesesseenes 7 Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 54 Cal.Rptr.2d 284.00...eeeeseeeees 1] Peralta Community College Dist. v. Fair Employment & Housing Com. (1990) 52 Cal.3d 40 ooo... cece ccecccsesscneceeceseeseeceseeneeenseessesssensesesesseess 15 01206.0001/299753.1 lv Quacchia v. County ofSanta Cruz (1958) 164 CalApp.2d 770 .......cececesecssssseeesscescssessecesessessvescesseeeees 22 Rashiki v. Moser (2014) 60 Cal4th 718 oo... ccccscesesseseeseeseesesseesescseeessessscsucssesenees 13 Sand v. Superior Court (1983) 34 Cal.3d 567.ecescccssscsssesssssseescseesesseessesssecseesesssensenecees 24 Schwerdtle v. County ofPlacer (1895) 108 Cal. 589ceceecssesesessseeesessessseseesesensecsecseeesecessnsnaes 12 Stump v. Cornell Construction Co. (1946) 29 Cal.2d 448 oo eccccccccccetcnsesssssseesesecssensensesseeeessesesnss 21,22 Theodorv. Superior Court (1972) 8 Cal.3d 77 oicccccescceseceeecscssssessecsesseceseseecseeesecsscsassecassases 12 Union Transp. Co. v. Sacramento County (1954) 42 Cal.2d 235 ooo ecccccccccsesssessssesecsesseessecessesecessesssssssceeseneese 7 Vanderpolv. Starr - (2011) 194 Cal.App.4th 385 ooo. ccccesseeseeseeseccsseessesssesnssesonseees 19 Whiteman v. City ofSan Diego (1920) 184 Cal. 163 ceeeeccsccssesscesenessseessceseceeceseecseesessscevsscensens 7 Gion v. City ofSanta Cruz (1970) 2 Cal.3d 29 voccccccccessesseerserereeseees 2, 3, 4,5, 9, 12, 20, 29 Yeager v. Blue Cross ofCalifornia (2009) 175 Cal.App.4th 1098 oo...ccccessessesesssesseeeserscsssscseenees 14 State Statutes Civil Code Section 325.00... cccccccesssessessssssscssessesscesseseaceeeccscssssssaessesaseaee 6 Civil Code section 425.16.......cccccccssesesssscsscsescesesersecesseerenereres 14,15 01206.0001/299753.1 v Civil Code section 802.000... ceccssesessessssscnsesscevsnsscnsssctcsascececesceceesecsens 5 Civil Code section 813 .scsssssssvistssisssssee 16, 17, 18, 23, 24, 27 Civil Code Section 846.........cccccccccsesssscecsecccessecessneecesseeesseeessaensnes 25, 26 Civil Code section 1008.00.00... ccc cesseecesseceesseeees 16, 17, 18, 23, 24, 27 Civil Code section 1009.00.00... .cceeeeeeeeeee 1, 2, 3, 18, 19, 20, 22, 23, 24 Civil Code section 1009(D) 0...ee ecccceseeeeesseseeeseaceeseeesseesteessseeees 4,18 Civil Code section 1009(€) 2... eececssscsesstessecssesenseeesessesseetseeseseseesete 4 Civil Code section 1009(f) .......ceecsesscssssecessscesensecesansessssessatenseeeeseneas 4 Civil Code section 1009(f)(2) .......ccccssssseseseeseeeesesesseeeessesseeseseseeseees 17 Government Code section 6066...........:ccccccscssscesecseeserecenersecsseeseseneeens 17 Streets and Highways Codesection 5610..........cccccssesssesseeessesssenseees 26 Other Authorities SB S04 oo... ecccecccesssceceseecsceseesaeceeeseceeseeaeeaesaeeseeesenseseeeneesaneessseseaeeeeaeens 4,17 01206.0001/299753.1 vi I INTRODUCTION “This case concerns two ‘roadways’ that are really just long driveways. Henry Ridge Motorway and Gold Stone Road. Henry Ridge crossesplaintiffs’ property as well as the Marshall, Erickson/Malick and Schroder properties.” (Malick/Schroder Brief, p. 12 [emph. added].)! Exactly; yet paradoxically, even though Defendants admit part of this “driveway”is on Jaime and Jane’s property, and even though Jaime and Jane used the “driveway” peaceably for years, Defendants contend that they should not be allowedto use it. (3 RT 136:7-138:11; 7 RT 1249:25- 1253:24/) Defendants Malick/Schroder also note that Henry Ridge Motorway and Gold Stone do not “comprise a grand thoroughfare.” (Malick/Schroder AnswerBrief, p. 12.) Nothing says a road must be a “grand thoroughfare” to be public. These roads, in any event, were grand enough for a former owner of portions of the Schroder and Erickson Propertiesto operate as a “gentleman farmer”and run a fashion design business, with employees on the property five days a week. (10 RT 2145:13-28, 2146:6-14, 2148:21-27, 2149:16-2150:1.) The interpretation of Civil Code Section 1009 (“Section 1009”) argued for by Defendants would overturn a legal doctrine that had been ' The Answer Briefs on the Merits filed by the Defendants will be referred to in this Reply Briefas the “Burke Brief,” the “Marshall Brief,” and the “Malick/SchroderBrief.” 01206.0001/299753.1 in place for many decades without any clear evidence that is what the Legislature intended and without any clear evidence that implied dedication of roads was a “problem”the statute was intendedto solve. Defendants’ approach presents a solution to a problem that simply did not exist. As discussedin Plaintiffs’ Opening Brief on the Meritsat 46- 49, other courts have recognized the context that gave rise to Section 1009 and construedit in light ofthat context. This Court should do so as well. Defendants also presenta list of problems they perceive arising out ofinterpreting Section 1009 as prior courts ofappeal have — the need to become a “mind reader” to know whoontheir property they should confront, the need to improvethe road, the potential for liability to the public — all of which are overblown, but were not problemsthe statute _ was intended to resolve in any event. Defendants do not cite as a concern the possibility that the public’s use of a road across their property would affect their ability to continue to use their property or further improve it, which wasthe reason there was concernthat Gionv. City of Santa Cruz (1970) 2 Cal.3d 29 (“Gion-Dietz”), would cause property owners to excluderecreational users. Defendants have not cited any harm that has come from the understanding of Section 1009 shared byall courts of appeal that have considered the issue prior to this case. In the absence of any indication that the interpretation of the statute applied to date has caused real 01206.0001/299753.1 L a e B S R R S problem, and particularly in the light of the absence of any clear _ legislative intent to completely do away with implied dedication arising from non-recreational use of well-defined roads, the interpretation of Section 1009 applied by the court ofappeal in this case must berejected. II. THE LEGISLATIVE HISTORY DOES NOT CONCLUSIVELY SHOW THE LEGISLATURE INTENDED TO DISMISS DECADES OF CASE LAW ON IMPLIED DEDICATION OF ROADS A. Gion-Dietz Defined the Scope of What the Legislature Was Trying to Address: The Legislative History is Silent Regarding Roads Because Roads Were Not The Issue Asnoted in Plaintiffs’ Opposition to Request for Judicial Notice, several of the documents of which Defendants Erickson, Malick and Schroder (“Malick/Schroder”) have asked this Court to take judicial notice do not qualify as legislative history. Even viewed as merely documents of some historical interest, these non-legislative history documents, as well as those that actually are legislative history,do not address the question ofhow Section 1009 wasintendedto affect implied dedication ofroads. Similarly, the barjournalarticles which Defendants have provided to the Court do not address the impact of Gion-Dietz or Section 1009 on implied dedication of roads. The reasonforthisis that 01206.0001/299753.4 the concern created by Gion-Dietz was not that a single well-defined road impliedly dedicated to public use would cause property owners to exclude recreational users. The concern wasnotthe potential for public “use to establish’ a road. The concern was the potential for public recreational use ofproperty to establish a right to use an entire parcel of property and the impactofthat right on the ability ofproperty ownersto developtheir property. Once the decision was madethatrecreational use of an entire parcel should not lead to the property owner’s losing the ability to develop or use it, the need to address the public policy of ensuring public access to the coastline lead to the addition of subdivisions (e) and (f) of Section 1009 (which oddly enough perpetuated the potential for another Gion-Dietz case to arise if a property ownerfailed to avail himself of the protections afforded by subdivision (f)). (Compare SB 504as originally introduced on March 9, 1971 with SB 504 as amendedin the Assembly on July 22, 1971.) The Marshall Briefat page 24 quotes the court ofappeal’s opinion in this case: “Such a result [applying statute only to recreational use] would improperly thwart the statute’s declared purpose andreturn the law to the state it was under Gion, thus defeating the Legislature’s motive for enacting the statute.” This statementis clearly incorrect. The stated purpose of the statute is to encourage property owners to make their property available for recreational use. Recognizing Section 1009(b) only applies to recreational use does not return the law to the 01206.0001/299753.1 state it was under Gion-Dietz. Gion-Dietz allowed recreational use to ripen into a vested right. Property owners would remain protected from losing all rights in their property by allowing recreational use. If anything, the statute itself, through subdivisions (e) and (f), has maintained the state of the law as it was under Gion-Dietz for coastal property. Indeed, Justice Clark’s dissent in County ofLos Angeles v. Berk (1980) 26 Cal.3d 201, cited selectively in the Malick/SchroderBriefat page 26, fn. 9, makes it abundantly clear that the idea that recreational use could give rise to an easementover anentire parcel wasthe issue of concern, and that roads werereally not the issue. Prior to Gion-Dietz no case held dedication of an easement occurred by adverse use for recreation, and. - substantial reason existed to believe that use could ripen into fee title only following compliance with statutory requirements for adverse possession. All cases had rejected claims a right to recreational use was acquired by prescription. Because the undefined public easement for recreation would deprive an ownerofpractically all use of his land, a dedication for recreational use would be equivalent to transfer of the fee. Civil Code section 802 enumerating servitudes which may be granted upon land does not includea recreational easement. In cases involving 01206.0001/299753.1 implied and express dedication ofaninterest in land for use as a park, courts had alwaysheld the full fee interest was transferred, the ownerlosingall right to possession.Finally, deeds purporting to create public easements for park purposes were held to convey fee interest so that grantors or their successors were precluded from making any use of the property, even one consistent with the purported easement, such asselling refreshments. [Citations.] The combination of statutory exclusion, park dedication cases, and denial of owner use, told us that a general public right to use private propertyfor recreational purposes could not be acquired byprescription but rather only by compliance with requirements of adverse possession - substantial enclosure, cultivation, or improvementofthe property. (CodeCiv. Proc., § 325.) Prior to Gion-Dietz, public use of open and unenclosed land wasconsidered a license from the owner rather than an intention to dedicate. The presumption of license applied “wherethe user by the public is not over a definite and specified line, but extends over the entire surface ofthe tract. [Citation.] Jt will not bepresumed,from merefailure to object, that the owner ofsuch land so used intends to create in the public a right which would 01206.0001/299753.1 practically destroy his own right to use any part of the property. [Citations.]” (FA. Hihn Co.v. City ofSanta Cruz (1915) 170 Cal. 436, 448 [150 P. 62].) Like Gion-Dieiz, Hihn involved public use of beach property. But the court concluded that the public did not obtain rights by adverse use or dedication. Hihn wasfollowed in Manhattan Beach v. Cortelyou (1938) 10 Cal.2d 653, 668 [76 P.2d 483]; Whiteman v. City ofSan Diego (1920) 184 Cal. 163, 172 [193 P. 98]; and City ofSan Diegov. Hall (1919) 180 Cal. 165, 167-168 [179 P. 889]. A different rule was applied to roads where public use for more than the prescriptive period withknowledge of the owner and without permission or obj ection established dedicatory intent by the owner. (Union Transp. Co. v. Sacramento County (1954) 42 Cal.2d 235, 240-241 [267 P.2d 10] (citing numerouscases).) /n road cases thepublic ordinarily is deemed to make the same use as the owner, the road is sharply defined and determination of a prescriptive right ofway has not been deemedto deprive the ownerofall use ofhisproperty. Additionally, roads are often expressly dedicated to the public. ... 01206.0001/299753.1 In Gion-Dietz, this court announced a new doctrine of public easement for recreational use acquired by prescription. The court ignored thepurported easement was equivalent to transfer offee and did not even discuss requisites of obtaining title by adverse possession... . (County of Los Angeles v. Berk (1980) 26 Cal.3d 201, 225-226 , dissenting opinion [footnote omitted, emph. added].) Commentators were severein theircriticism ofGion- Dietz, noting not only departure from precedent,thefailure to considertotal loss to the owner, and the prohibition of taking property without compensation, but also that the case created an obvious inequity and would prove counterproductive to the public policy espoused. (Armstrong, Gion y. City ofSanta Cruz; Now You OwnIt - Now You Don't; or The Case of the Reluctant Philanthropist (1970) 45 L.A. Bar Bull. 529; Berger, Nice Guys Finish Last - At Least They Lose Their Property: Gion v. City ofSanta Cruz (1971) 8 Cal.Western L.Rev. 75; Comment, This Land Is My Land: The Doctrine ofImplied Dedication and Its Application to California Beaches (1971) 44 So.Cal.L.Rev. 1092; Comment, Implied Dedication: A Threat to the Owners of California's Shoreline (1971) 11 Santa Clara Law. 327; Comment, 01206.0001/299753.1 Public or Private Ownership ofBeaches: An Alternative to Implied Dedication (1971) 18 UCLA L.Rev. 795; Note, Californians Need Beaches - Maybe Yours' (1970) 7 San Diego L.Rev. 605; Note, Implied Dedication in California: A NeedforLegislative Reform (1970) 7 Cal.Western L.Rev. 259; Note, The Common Law Doctrine of Implied Dedication and Its Effect on the California Coastline Property Owner (1971) 4 Loyola L.A.L.Rev. 438; Note, Public Access to Beaches (1970) 22 Stan.L.Rev. 564; Note (1971) 59 Cal.L.Rev. 231.) (County of Los Angeles y. Berk, supra, 26 Cal.3d at 228, dissenting opinion [footnote omitted, emph. added].) ‘Defendants note that Gion-Dietz states the law of implied dedication should beappliedto entire parcels of land the same wayit is applied to roads and, onthat basis, they argue Section 1009 should be applied to roads the same wayit is applied to entire parcels of land. (Malick/Schroder Brief, pp. 37-38.) This argument doesnotreflect the fact there is nothing in Gion-Dietz orother case law indicating implied dedication ofroads wasparticularly problematic, in contrast to thetotal loss of use of the property arising from the application of Gion-Dietz. Applying the same law of implied dedicationthat pertain to roads to an entire property created a problem — it prevented the owner from making 01206.0001/299753.1 any use ofthe property. Applying the law of implied dedication to the establishment of roads does not havethateffect. Concerns that the use of property by one whois not the owner could infringe on the owner’s rights are not new and donot exist solely in the context of public use. The law has recognized those concerns in the context ofprivate use as well and has dealt with them. In Bustillos v. Murphy (2002) 96 Cal.App.4th 1277, the plaintiff's attempt to assert a prescriptive right to use a network of trails across the defendant’s property failed. The court of appeal foundthat the use of a network of trails traversing the entire property could notripen into a vested right due to Section 1009 because the use wasrecreational. (Jd. at 1281.) The plaintiff sought to avoid the impact of Section 1009 byasserting a private right, rather than a public one. Although Section 1009 was a sufficient reason to denytheplaintiffs claims, the court of appeal went on to note that even a private prescriptive easement would not be found on these facts. Wedo note that the cases have limited prescriptive easements for traveling across the property of anotherto a single defined right-of-way and have denied easements to generally travel across another’s property. (See Dooling v. Dabel (1947) 82 Cal.App.2d 417, 424, 186 P.2d 183; Applegate v. Ota (1983) 146 Cal.App.3d 702, 710, 194 Cal.Rptr. 331.) Bustillos has not cited any case nor have we 01206.0001/299753.1 10 found any case that would support granting a prescriptive easement for a networkoftrails. As to Bustillos’s other argument, case law generally holds that a prescriptive easement may not be granted if doing so would result in depriving the ownerofessentially all rights in the property; in that case, the claimant must proceed under the adverse possession doctrine and show payment of taxes on the disputed property. (See Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1305-1307, 54 Cal.Rptr.2d 284, but see Hirshfield y. Schwartz (2001) 91 Cal.App.4th 749, 110 Cal.Rptr.2d 861 [holding that a court in equity, applying the hardship doctrine, may grant an easement that effectively denies the ownerthe use ofhis property].) Here, Bustillos’s claim for a network oftrails crisscrossing the majority oftheproperty would divest Murphyofessentially all rights to the property, rendering it unbuildable and unsaleable, Accordingly, Bustillos would have to proceed under the adverse possession doctrine and establish the paymentoftaxes on the property. (/d. at 1281-1282 [emph.added].) Nothing in Bustillos or any other case cited indicates the concern about rendering property unbuildable and unsaleable exists if there is but a single road or pathway through the property that is recognized. 01206.0001/299753.1 11 B. ThereIs No Clear Statement OfLegislative Intent To Reverse A Longstanding Body of Law All ofthe Defendants makethe argumentthat “no use” means “no use” can develop into anysort ofvested right. However, thelegislative history is utterly devoid ofany recognition ofthe long history ofimplied dedication in California law, going backat least as far as Schwerdtle v. County ofPlacer (1895) 108 Cal. 589, or ofa clear intent to completely eliminate the law of implied dedication from California law, evenasit related to roads. None ofDefendants has disputed that oneofthe tenets of statutory interpretation is that “[t]he Legislature should not be presumed to overthrow long-standing principles of law unless such intention is made clear either by express declaration or by necessary implication. (Theodor v. Superior Court (1972) 8 Cal.3d 77, 92; Big CreekLumberCo. v. County ofSanta Cruz (2006) 38 Cal.4" 1139, 1149- 50.)” (Opening Brief on the Merits, p. 45.) None of Defendants has argued that “no use,” by itself, is an express declaration of intent to overthrow decadesofcase law or that the overthrow of decadesofcase law necessarily must be implied from Gion-Dietz and Section 1009. Defendants Malick/Schroder assert: “The Legislature wanted certainty—not more questions for the bar, the bench and scholars to ponder and debate.” (Malick/Schroder AnswerBrief, p. 31.) Nothing in the legislative history indicates a desire for certainty; Defendants appear 01206.0001/299753.1 12 “ a p c q i t h e u s ! et e te to simply be projecting their own desires. Ifthe Legislature was seeking certainty, it did not do a very good job ofmakingit clear and certain that it intended to overturn a longstanding legal doctrine. C. The Limited Use Of The Word “Recreational” Is Not Determinative Defendants all argue the fact the word “recreational” appears only in subdivision (a) of Section 1009 meansthe impactofthe statute is not limited to recreational use. (Marshall Brief, p. 21; Burke Brief, p. 14; Malick/Schroder Brief, pp. 18-19.) Marshall and Burke cite Klein v. United States (2010) 50 Cal.4™ 68, 80, stating that when onepart of a statute contains a term or provision, the omission of that term or provision from another part of the statute indicates the Legislature intended to conveya different meaning. Klein, however, and the cases therein cited, do not involve statutes that, like section 1009, contain an express statement of legislative intent. An express statement of legislative intent in the statute itself cannot simply be ignored. Doing so would be contrary to the fundamental tenet of statutory interpretation, to ascertain the intent of the Legislature so as to effectuate the purpose of the law. (Burden v. Snowden (1992) 2 Cal.4th 556, 562.) Malick/Schroder follow up by citing Rashiki v. Moser (2014) 60 Cal.4" 718, 725 [holding reduced non-economic damages award 01206.0001/299753.1 13 under MICRA wasnotsubject to offsets for pretrial settlements as to non-economic damages with other parties; defendants should not be alloweda set off against damages he caused; makingdistinction between “losses” and “damages,” the latter being “money ordered by a court”], and In re Young (2004) 32 Cal.4" 900, 907 [sentencing credits under 3 strikes law includesonly credits available under statutes that use the word “credits”]. Again, neither case deals with an express Statementof legislative intent that the Legislature considered important enough to makeit a codified part of the statute. D. Subdivision (a) Of Section 1009 Is Not Just A “Preamble” Defendants try to dismiss subdivision (a) of Section 1009, the Legislature’s statement ofintent, as a mere “preamble” with no meaning. (Marshall Brief, p. 32; Malick/Schroder Brief, pp. 20-21.) The various cases they cite in support of their position reveal “preambles” very different in nature from that of subdivision (a) of Section 1009. The “preamble”in Yeager v. Blue Cross ofCalifornia (2009) 175 Cal.App.4"" 1098, 1103, was an uncodified statement of facts, not a codified, express statement of legislative intent as in Section 1009. Briggs v. Eden Councilfor Hope & Opportunity (1999) 19 Cal.4th 1106, 1118, involved the interpretation ofthe anti-SLAPPstatute, Code of Civil Procedure section 425.16. One ofthe issues was whether every cause of action subject to the anti-SLAPP statute must be one that 01206.0001/299753.1 14 involves an “issue ofpublic interest.” Theplaintiffbased this argument on language in-the statute’s “preamble” indicating that the Legislature desired “to encourage continued participation in matters of public Significance.” This Court found there was no need to incorporate such a requirement because its absence did not diminish the statute’s effectiveness in encouraging participation in public affairs. “Any matter pendingbeforean official proceeding possesses some measureof‘public significance’ owing solely to the public nature of the proceeding, and free discussion ofsuch matters furthers effective exercise ofthe petition rights section 425.16 was intended to protect. The Legislature’s stated intent is best served, therefore, by a construction of section 425.16 that broadly encompasses participation in official proceedings, generally, whetheror not such participation remainsstrictly focused on ‘public’ issues.” (/d. at 1118.) In effect, this Court found no specific reference to the preamble was necessary because the matter was otherwise addressed, not because the “preamble” wastotally meaningless. The “preamble” at issue in Peralta Community College Dist. v. Fair Employment & Housing Com. (1990) 52 Cal.3d 40, 53, was a statement of legislative intent grafted onto the Fair Employment and Housing Act after its original enactment. This Court concluded the “preamble” wasnot indicative of the Legislature’s intent when the act wasoriginally approved. (/d. at 52.) 01206.0001/299753.1 15 Noneofthese “preambles”rises to the level ofsignificance ofthe - contemporaneous, express statement of legislative intent found in subdivision (a) of Section 1009. Ill. THE LEGISLATURE’S AMENDMENTOFCIVIL CODE SECTION 813 CONCURRENTLY WITH ENACTING SECTION 1009 SUPPORTS THE CONTINUED EXISTENCE OF THE LAW OF IMPLIED DEDICATION WITH RESPECT | TO ROADS In addition to focusing on the phrase “no use,” Defendants focus on the introductory phrase of subdivision (b) of Section 1009: . “Regardless of whether or not a private owner of real property has recorded a notice ofconsentto use ofany particular property pursuantto Section 813 of the Civil Code or has posted signs on such property pursuant to Section 1008 ofthe Civil Code...” (Malick/SchroderBrief, p. 20.) Defendants then go on to makeit appear that complying with Section 813 or 1008 is tremendously burdensome. (Malick/Schroder Brief, p. 20.) Sections 813 and 1008 are significant, however, because Section 1009 identifies them both as means of preventing coastal property from becoming subject to a vested right of the public, without limiting the application of those statutes to coastal property. 01206.0001/299753.1 16 UnderSection 1009(f), an ownerofcoastal property who wishes to open the land to the public, but prevent the use from becoming a vested public right, has three optionsfor protectingtitle to the property, two ofwhich are relevant for the present discussion. Thefirst is to post signs pursuant to Section 1008. Section 1008 providesfor the posting of signsat each entranceto the propertyorat intervals ofnot more than 200 feet along the boundary whichreads substantially as follows: “Right to pass by permission,and subject to control, ofowner: Section 1008, Civil Code.” Section 1009(f)(1) expandsonthat slightly. The signs must be renewedat least once a year if they are removed. In addition, Section 1009(£)(1) provides an alternative approach based on Section 1008: the owner can publish a notice annually pursuant to Government Code section 6066 (requiring publication once a week for two successive weeks) in a newspaperofgeneral circulation in the county or counties in which the property is located, consisting of the description of the property and the same language requiredin the signs. The second alternative is to record a notice as provided in Section 813. (Section 1009(f)(2).) Defendants bemoan the necessity of specifying the uses for which the property is open to the public and havingto record a notice each year. (Malick/SchroderBrief, p. 20.) In fact, Section 813 never required that the notice be recorded annually; once is enough. (See SB 504 as amended in Assembly on July 22, 1971.) More importantly, however, Section 813 was amended 01206.0001/299753.1 17 concurrently with the adoption of Section 1009, in the very same piece of legislation. The amendment eliminated the requirementto list the uses for which the property was available. The notice need only consist of a description of the land and a statement of substantially the following: “The right of the public or any person to make any use whatsoever of the above described land or any portion thereof (other than any use expressly allowed by a written or recorded map, agreement, deed or dedication) is by permission, and subject to control, of owner: Section 813, Civil Code.” The recorded notice is conclusive evidence that subsequentuse ofthe land by the public or any user for any purpose is permissive and with the owner’s consent. After recording such a notice, “the ownershall not prevent any public use appropriate thereto by physical obstruction, notice or otherwise.” The notice can be revoked by recording a notice of revocation. Neither Section 813 nor Section 1008 was amended upon the enactmentofSection 1009 or at any timesince to provide such notice or signs are effective only as to coastal property. Section 813 continues to provide the notice can be recorded in any county where property is located; it was not amended to limit recordation of such a notice to coastal counties. While Section 1009(b) indicates the posting ofsigns or recordation of notices is not required with respect to non-coastal property, it is not prohibited. However, if Defendants are correct that Section 1009 meansthat“no use” ofnon-coastal property can ripen into 01206.0001/299753.1 18 a vested right, there would be no need to perpetuate the use ofrecorded notices or posted signs with respect to non-coastal property to show the use is permissive. Because the Legislature did not limit the impact of these notices and signs to coastal property, such notices and signs must continue to have some meaning with respect to non-coastal property. Otherwise, the statutes would be superfluous in the context of non- coastal property. In the absence of language clearly limiting the application ofthe statutes to coastal property, a construction havingthat effect must be avoided. (Longshore v. County of Ventura (1979) 25 Cal.3d 14, 24; Vanderpol v. Starr (2011) 194 Cal.App.4th 385, 395.) Thefact such signs and notices continue to have meaning with respect to non-coastal property can only support the conclusion that Section 1009 does not prevent non-recreational use of non-coastal property from ripening into a public vested right. IV. THERE IS NO FUNCTIONAL DIFFERENCE BETWEEN A DEDICATION IMPLIED IN FACT AND A DEDICATION IMPLIED IN LAW; THE 1970 DECLARATIONS AND GRANTS OF EASEMENTS ESTABLISHED AN INTENT TO DEDICATE ROADS AND THE LAW PROVIDED FOR ACCEPTANCE OF THE DEDICATION BY USE - Defendant Burke attempts to find a distinction between “express dedication” and “implied dedication” and hang the meaning of Section 01206.0001/299753.1 19 1009 on it. (Burke Brief, pp. 11-12, 15, 20.) In reality there islittle practical difference between express and implied dedication. Both are theories of common law dedication. In an express dedication, some writing indicates the intent to dedicate; in an implied dedication, the intent to dedicate is implied from the property owner’s conductor the lack of objection to use of the property as if it were public. In either situation, where there is no formal acceptance of the dedication, the acceptanceofthe dedication maybethe result ofuse ofthe property by the public. (Hanshaw v. Long Valley Road Assn. (2004) 116 Cal.App.4th 471, 474, 477-479.) The apparent distinction between express and implied dedication is not of any great significance. (See, Friends ofMartin’s Beach vy. Martin’s Beach 1 LLC (First District, Case No. 142035, April 27, 2016), Slip Opinion, pp. 33-39.) Defendant Burke contends Section 1009 requires an express written offer of dedication. (Burke AnswerBrief, p. 20.) In fact, there was just such an express dedication in this case. In 1970, three * Martin’s Beach describes Section 1009 as “partially abrogat{ing] the commonlaw ofdedication in the wakeofthe Gion decision.” (Slip Op., p. 37 [emph. added].) The First District thus joins the Third and Fourth Districts in indicating Section 1009 did not completely do away with the concept of implied dedication or common law dedication based on acceptance of a dedication by public use of the property. Because Section 1009 “expressly excludes coastal property from its reach” and the property involved in Martin ’s Beach was coastal property, the court of appeal did not engage in any detailed analysis of the scope of the statute. 01206.0001/299753.1 20 “Declarations and Grants of Easements” were recorded concurrently evidencing that Henry Ridge Motorway was the access for multiple subdivisions of properties in the area, including the Marshall Property, ‘and part of the Erickson Property (“1970 Declarations and Grants of Easements”). The 1970 Declarations and Grants of Easements were recorded by a developer, Brett Smithers, whose three companies owned parcels ofproperty along Henry Ridge Motorway,and whohadto create access easements as a prerequisite to subdivision and development. (Ex. 54, 55, 56; 5 RT 753:13-761:3; Ex. 194, Documents, Tabs 5, 14, 16 and 25.) As Defendant Burke notes (Burke Brief, p. 17), the 1970 Declarations and Grants ofEasementsstate that the dedications could be accepted by the recording of a written acceptance by a grantee ofany of the parcels created by the map. That acceptance ofthe dedicationin that manner was allowed does not mean that the dedications could not be accepted by use, which is what occurred in this case. (Hanshaw v. Long Valley Road Assn., supra, 116 Cal.App.4th at 474, 477-479.) Defendants Malick/Schroder contend commonlaw dedication has been completely superseded by the Subdivision Map Act,citing Stump v. Cornell Construction Co. (1946) 29 Cal.2d 448, 451. (Malick/Schroder Brief, p. 39.) This overstates the holding of Stump, which does not say that the Subdivision Map Act completely abrogates the common law related to dedication. What Stump actually said was “the provisions of 01206.0001/299753.1 21 [the Subdivision Map Act] clearly indicate an intention to abrogate the common law rule whereby an offer to dedicate might be impliedly revoked by a conveyance without reservation.” (Jd. at 451 [emph. added].) All ofthe casesciting Stump similarly pertain to the revocation of offers of dedication. (Biagini v. Beckham (2008) 163 Cal.App.4th 1000, 1015; County ofOrange v. Cole (1950) 96 Cal.App.2d 163, 167- 170, 43; Quacchia v. County ofSanta Cruz (1958) 164 Cal.App.2d 770, 771.) Further, Hanshaw is directly contrary to Stump, finding an incomplete dedication can become a public road by use despite the Subdivision Map Act and expressly rejecting the argumentthat the Subdivision Map Act precludes common law dedication. (Hanshaw v. Long Valley Road Assn., supra, 116 Cal.App.4that 474, 477-480.) V. THE PRACTICAL ISSUES DEFENDANTS RAISE ARE NOT RELEVANT TO INTERPRETATION OF SECTION1009 Defendants raise a numberof issues they claim would arise if Section 1009 only applies to recreational uses. These issues exceed the scope ofSection 1009in that the statute was neverintendedto resolveall potential issues that could arise from one person crossing or using the property of another andtherefore are irrelevant to the interpretation of the statute. The statute was specifically and solely directed at the question whetherpublic recreationaluse ofthe entirety ofa property can 01206.0001/299753.1 22 ripen into a vested right. As such, it was not intended to resolve questions such as whois responsible for improving or maintaining the road, whois liable in case of injury, or any other question. Further, while these extraneous issues should not drive the interpretation of Section 1009, Defendants have blown these issues out ofproportion. A. Mindreadingis Not Required Defendants all contend that the interpretation of Section 1009 advanced by Plaintiffs and reflected in prior court decisions is unworkable becauseit requires the property ownerto read the mind ofa person crossing the property to determine whetherthe use ofthe property is recreational or non-recreational, so they will know whoto confront and whonot to confront. (Marshall Brief, pp. 2, 24-26; Burke Brief, pp. 16-17; Malick/Schroder Brief, pp. 28-29.) No mindreading or confrontation is necessary if the property owner complies with Sections 813 or 1008 as compliance with those statutes provides protection whetherthe useis recreational or non-recreational. Indeed, confronting persons on the property is contrary to Section 813, which readsin part: “After recording a notice pursuant to this section, and prior to any revocation thereof, the owner shall not prevent any public use appropriate thereto by physical obstruction, notice or otherwise.” 01206.0001/299753.1 23 B. Defining “Recreational” Use Is Not An Issue Defendants protest that Section 1009 cannot mean that non- recreational uses couldstill result in a common law dedication because the term “recreational” is not defined in the statute and any activity, depending on the state of mind of the user of the property, could be recreational. (Marshall Brief, pp. 24-25; Burke Brief, pp. 16-17; Malick/Schroder Brief pp. 24-25.) This has not inhibited courts from applying the recreational/non-recreational distinction in cases involving Section 1009 to date. Perhaps what Defendants are concerned aboutis that property owners cannotbe absolutely certain ofwhether a particular use qualifies as recreational. As noted above, the answeris to comply with Section 813 or 1008 and then the nature ofthe use will not matter. It is not unusual for statutes to contain undefined terms that may be subject to interpretation. Courts are capable of determining what terms such as “recreational” mean either by resort to a dictionary or by looking to definitions or usage in other statutes. (Halbert’s Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1240 [relying on dictionary definition of “furnished”]; Heritage Residential Care, Inc.v. Division ofLabor Standards Enforcement (2011) 192 Cal.App.4th 75, 83 [relying on dictionary definition of “inadvertent”]; Sand v. Superior Court (1983) 34 Cal.3d 567, 570 [looking to other statutes for the meaning of the term “capital case”]; Flannery v. Prentice (2001) 26 Cal.4" 572, 578 [looking to other statutes for the meaning of “party”].) 01206.0001/299753.1 24 Should the day come whenit is necessary to apply Section 1009 to ause that is not obviously “recreational,” the courts have the resources to addressthat issue. Further, the existence ofa definition would not necessarily resolve all issues in any event, as Defendants note with regard to Civil Code section 846, regarding immunity of property owners from liability to recreational users of their property. (Malick/Schroder Brief, p. 32; Marshall Brief, p. 25.) That being the case, it makes no senseto protest that interpreting Section 1009 to affect only recreational uses of non- coastal property is wrong becausethe term “recreational”is not defined. C. Liability Issues Can Be Addressed By Insurance Defendantsalso protestthat their costs for maintenanceofthe road and potential for liability would be greatly expanded if Section 1009 does not prevent the road from becoming public. Issues regarding maintenance ofthe road and potential liability for injury are not relevant to the interpretation of Section 1009. From a practical standpoint, however, the roads in question are located where they are unlikely, even if public, to garner a large volumeoftraffic that would require major improvements to or maintenance of the road. Because Defendants themselvesare using the roads in question to access their own property, there is a minimum level of maintenance they must undertake for themselves and various service providers, some of whom likely make 01206.0001/299753.1 25 deliveries by truck. There is no need to improve the road further just because the public can useit. In the absenceofa specific statute, the ownerofthe underlying fee in a public street has no obligation to maintain it. The Legislature recognized this in enacting Streets and Highways Code section 5610 which mandatesthe ownerofproperty adjacentto a streetis obligated to maintain only the sidewalk and parkway, not the road itself. In any event, the duty of maintenance does not mean the property owner generally is liable to someone injured on the sidewalk. (See, Jordan v. City ofSacramento (2007) 148 Cal.App.4™ 1487.) Defendants speculate, but cite no law,to the effect they would be liable to personsinjured on the roads. Concernsaboutliability, like most liability concerns, can be addressed by. purchasing insurance. Defendants no doubt have homeowner’s liability insurance which should provide coverage, although abutting property ownersare not generally liable for injuries sustained on public streets. Further, Defendants are mostlikely immunefrom liability to recreational users of their property under Civil Code section 846. While there is a possibility someone could be injured and have no oneto sue, it would not bethe first time that there is no remedy available for a person who suffers damage. 01206.0001/299753.1 26 D. The Solution is Found in Sections 813 and 1008 All ofthe Defendantsassert, “[a]ny rational landowner would bar all use, contravening the very purposeofthe statute,” or wordsto similar effect. (Malick/Schroder AnswerBrief, pp. 30, 33-34; Burke Brief, pp. 17-18; Marshall Brief, p. 2.) Actually, any rational landowner would record or post notice pursuant to Sections 813 or 1008. Closing the land to the public is not now, and has neverbeen, the onlyalternative. VI. PLAINTIFFS DO NOT HAVE A SECURE, RELIABLE AND SAFE ALTERNATIVE ROUTE TO AND FROM THEIR HOME Defendants contend that Plaintiffs have other routes to and from their home. (Marshall Brief, pp. 11-12; Burke Brief, p. 9; Malick/SchroderBrief, pp. 41-43.) Plaintiffs do not dispute other routes exist, but whether there are other routes is not relevant to the question whether there has been an implied or common law dedication of the roads in question. In any event, Defendants choose to ignore the question whether those other routes are safe, legal andreliable, and are going to remain opento Plaintiffs. The issues with those other routes are detailed in Plaintiffs’ Opening Brief on the Merits at pages 21-23. The Malick/Schroder Briefasserts Plaintiffs have five other routes to and from their home. (Malick/SchroderBrief, p. 42.) A close look at the citations in that paragraph showsthis is a myth. Thecitations to the 01206.0001/299753.1 27 court ofappeal’s opinionare to a description ofthe roadsin the area, not a description of routes that could actually lead Plaintiffs, legally and safely, to Topanga Canyon Boulevard. The citations to the trial transcript are repetitive descriptions of the same routes, which indicate some are unsafe. While there maybe five street names involved, that does not equate to five routes. Further, Defendants dismiss the issue of the reliability of other routes, saying Jaime Scher has “only” been “stuck”once andthere is no evidenceall routes could be closed at the same time. (Marshall/Schroder Brief, p. 42, 43.) Defendants admit there was one occasion whenall routes were closed. If it happened once, it could happen again. Must Plaintiffs wait until they have been “stuck” multiple times, or until they are “stuck” in an emergency,to take steps to be sure they alwaysare able to get to or from their home? Would Defendants accept a situation where they must spendthe better part ofan hour or moretrying different routes to Topanga Canyon Boulevard, only to find none are open to them? Whydo Plaintiffs have to find themselves in a situation where they feel like mice trying to escape a maze before they are entitled to relief and security of legal access to their home? Defendants note that the fire department’s established accessroute is from the north. (Burke Brief, p. 9; Malick/Schroder Brief, p. 41.) Yet, there have been circumstances wherethe fire departmenthas attempted access from the south and been impededbyclosed gates (not hairpin 01206.0001/299753.1 28 turns or narrow spots), forcing them to waste time going back around to access the area from the north. (7 RT 1298:9-1301:15; 10 RT 2202:11- 2202:20; 10 RT 2208:17-2210:11.) Defendants suggest the fire department uses the northern access becausethe road is wider and more accessible. However, fire department vehicles are considerably larger and heavier than passengervehicles, so a route that the fire department might not wantto use is not necessarily problematic for all vehicles. Vit. CONCLUSION There is no compelling and clear legislative history showing the Legislature, in enacting Section 1009, meant to reverse longstanding case law regarding implied dedication of roads. Further, implied dedication of roads does not implicate the concerns that arose in the wake of Gion-Dietz, and there is nothing to show any harm has come from the interpretation of Section 1009 applied by the courts of appeal prior to this case. Accordingly, this Court should find, for the reasonsset forth in Plaintiffs’ Opening Briefon the Merits, and in this Reply Brief, that Section 1009 affects the law ofimplied dedication only asit relates to recreational use of entire parcels of land and does not affect the application of implied or common law dedication to roads, particularly whenthe use of those roads is non-recreational. 01206.0001/299753.1 29 In light ofthe fact the court ofappeal did not properly consider the issue of use of the roads in question after 1972, this case should be remanded to the court of appeal to consider the sufficiency of the evidencein that regard. Alternatively,ifthis Court concludes Section 1009 did completely eliminate implied dedication of roads, then this matter should be remandedto thetrial court for the taking ofadditional evidenceofpublic use ofthe roadsprior to 1972. Otherwise, Plaintiffs would be prejudiced by their reliance, and the trial court’s reliance, on the common understanding of Section 1009 prior to this case in that there was no clear necessity to present evidence ofuse of the roads after the federal patent of the land and before 1972. Dated: June 6, 2016 Respectfully submitted, ALESHIRE & WYNDER, LLP Attorneysfor Plaintiffs, Appellants and Respondents, JAIME A. SCHER and JANE McALLISTER 01206.0001/299753.1 30 CERTIFICATE OF WORD COUNT I certify pursuant to Rule 8.204(c) of the California Rules of Court, the attached Opening Brief on the Merits was produced on a computer and contains 6,806 words, excluding cover pages, tables of contents and authorities and signature lines, as counted by the Microsoft Word 2010 word-processing program used to generate the Reply Brief on the Merits (as to all AnswerBrief: 01206.0001/299753.1 31 CERTIFICATE OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 2361 Rosecrans:Ave., Suite 475, El Segundo, CA 90245. On June6, 2016, J served true copies ofthe following document(s) described as REPLY BRIEF ON THE MERITS (AS TO ALL ANSWERBRIEFS)ontheinterested parties in this action as follows: SEE ATTACHED SERVICE LIST BY OVERNIGHT DELIVERY:I enclosed said document(s) in an envelope or package provided by the overnight service carrier and addressed to the persons at the addresses listed in the Service List. I placed the envelope or packagefor collection and overnight delivery at an office or a regularly utilized drop box ofthe overnight service carrier or delivered such document(s) to a courier or driver authorized by the overnight service carrier to receive documents. BY MAIL: I enclosed the document(s) in a sealed envelopeor. package addressedas indicated to the personsat the addresseslisted in the Service List and placed the envelope for collection and mailing, following ourordinary businesspractices. I am readily familiar with the practice of Aleshire & Wynder, LLP for collecting and processing correspondence for mailing. On the same day that correspondenceis placed for collection and mailing,it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I am a resident or employedin the county where the mailing occurred. The envelope was placed in the mail at El Segundo, California. I declare under penalty of perjury underthe laws of the State of California that the foregoing is true and correct. Executed on June 6, 2016, at El Segundo, California. 9ionde. OB. RosieA. Griz 7 01206.0001/299753.1 32 SERVICE LIST Supreme Court of California Earl Warren Building - Civic Cntr 350 McAllister Street, Rm 1295 San Francisco, CA 94102-4797 1 Original 8 Copies 1 e-Submission Via Overnight Court of Appeal — SecondDistrict Division 3 Ronald Reagan State Building 300 S. Spring Street 2nd Floor, North Tower Los Angeles, CA 90013 Via U.S. Mail California Superior Court Hon. Malcolm Mackey — Dept. 55 Stanley Mosk Courthouse - LASC 111 North Hill Street Los Angeles, CA 90012 U.S. Robert S. Gerstein Law Offices of Robert S. Gerstein 12400 Wilshire Blvd., Ste. 1300 Los Angeles, CA 90025 Tel (310) 820-1939 Attorneysfor John Burke, Germaine Burke, and Bennet Kerns, Trustee of the A.S.A. Trust, Dated June 28, 2005 Bennett KernsLaw Offices of Bennett Kerns2001 Wilshire Blvd., Ste. 200Santa Monica, CA 90403Tel (310) 452-5977 Attorneysfor John Burke,Germaine Burke, and BennetKerns, Trustee of the A.S.A.Trust, Dated June 28, 2005Via U.S. Mail 01206.0001/299753.1 33 LEVINSON ARSHONSKY& KURTZ, LLP Richard I. Arshonsky _ . Jason J. Jarvis 15303 Ventura Blvd., Suite 1650 Sherman Qaks, CA 91403 Tel (818) 382-3434 Attorneysfor Richard Erickson, Wendie Malick, Andrea D. Schroder and Richard B. Schroder Via U.S. Mail GARRETT & TULLY,P.C. Ryan C. Squire Zi C. Lin 225 South Lake Ave., Suite 1400 Pasadena, CA 91101 Tel (626) 577-9500 Attorneysfor Richard Erickson, Wendie Malick, Andrea D. Schroder and Richard B. Schroder Via U.S. Mail WendyC. Lascher Joshua S. Hopstone FERGUSON CASE ORR PATERSON LLP 1050 South Kimball Road, Ventura, CA 93004 Tel (805) 659-6800 Attorneysfor Gemma Marshall Via U.S. Mail 01206.0001/299753.1 34