SCHER v. BURKE

Appellants, Jaime Scher and Jane McAllister, Response to Amicus Curiae Brief

Cal.August 19, 2016

$230104 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA JAIMEA. 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 8.25(b) } Appellate District, eeoe 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 APPELLANTS’ ANSWER TO AMICUS CURIAE BRIEFS ALESHIRE & WYNDER, LLP JUNE S. AILIN, STATE BAR NO. 109498 jailin@awattorneys.com 2361 ROSECRANS AVE., SUITE 475 EL SEGUNDO, CALIFORNIA 90245 Telephone: (310) 527.6660 — Fax: (310) 532.7395 Attorneysfor JAIME A. SCHER and JANE McALLISTER 01206.0001/308510.2 S$230104 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA JAIME A. SCHER,et al., Plaintiffs, Appellants and Respondents, V. 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 TheState of California, County of Los Angeles, Case Number BC 415646, Hon. Malcolm Mackey APPELLANTS’ ANSWER TO AMICUS CURIAE BRIEFS ALESHIRE & WYNDER, LLP JUNE 8S. AILIN, STATE BAR NO. 109498 jailin@awattorneys.com 2361 ROSECRANS AVE., SUITE 475 EL SEGUNDO, CALIFORNIA 90245 Telephone: (310) 527.6660 — Fax: (310) 532.7395 Attorneysfor JAIME A. SCHER and JANE McALLISTER 01206.0001/308510.2 TABLE OF CONTENTS Page I. INTRODUCTION000ecccescccececesccesseceuevcceeeesssssssteeseseeenees ] Il. THE AMICUS BRIEFS HIGHLIGHT THE SIGNIFICANCE OF THE AMENDMENTTO CIVIL CODESECTION 813 THAT OCCURRED CONCURRENTLY WITH THE ENACTMENT OF CIVIL CODE SECTION 1009...ececcccncessrsereeesseneves 2 UI. PLAINTIFFS’ AND THE TRIAL COURT RELIED IN PART ON IMPLIED IN FACT DEDICATION... 4 IV. THE MIKKELSEN BRIEF CORRECTLY IDENTIFIES THE COURT OF APPEAL’S FAILURE TO RECOGNIZE THE DIFFERENCES BETWEEN IMPLIED IN FACT DEDICATION AND IMPLIED AT LAW DEDICATION AS A SOURCEOF ERROR... 5 V. CONCLUSION 000.eceeseeeseneeeneesaeseseeeseeceseessssseuseeeseesees 7 01206.0001/308510.2 i TABLE OF AUTHORITIES Page State Cases Gion v. City ofSanta Cruz (1970) 2 Cal.3d 29 oeeeesesecssessesescecessseessseesssseessessenseensesessenenees 1 State Statutes Civil Code Section 813 wu... .ceccccccecccccssssecesecsssceecseseteeeseenseers 1,2, 3,4, 7 Civil Code Section 1009 uu... cccccccsessteestecteessesseseesereeeeene 1, 2,3, 4, 6 01206.0001/308510.2 ii I. INTRODUCTION The amicus briefs filed in this case present two different perspectives. The Amici Curiae Brief of Keri Mikkelsen, ef al. (“Mikkelsen Brief”) presents a good analysis of the prior case law on implied dedication and the language and implications of Gionv. City of Santa Cruz (1970) 2 Cal.3d 29 (“Gion-Dietz”), with a focus on interpretation of Civil Code section 1009, and the importance of recognizing distinctions between implied in fact and implied in law dedications. The Amicus Curiae Brief of Pacific Legal Foundation, California Farm Bureau Federation, and California Cattlemen’s Association (“PLF Brief”) presents a property owners’ view ofpotential consequencesarising from implied in law dedication, without expressing any position on the effect of Section 1009 on implied in fact dedication. Both briefs, in different ways, call attention to the importance of Civil Code section 813 in understanding the Legislature’s intent in enacting Section 1009, the Mikkelsen Briefby asking why amendments to Section 813 were necessary if Section 1009 completely repealed the law of implied dedication, the PLF Bnefby failing to recognize that Section 813 is the answer to the concerns about implied in law dedication on which the PLF Brief focuses. Further, the Mikkelsen Brief explores the implications of the different impacts of and perspective on implied in fact and implied in 01206,0001/308510.2 law dedication reflected in both Gion-Dietz and Section 1009 and the court of appeal’s failure to recognize the different sources and implications ofthose doctrines. Consideration ofthat aspect ofthe court of appeal’s opinion highlights the flaws in the court of appeal’s legal reasoning andanalysis of the evidence. I. THE AMICUS BRIEFS HIGHLIGHT THE SIGNIFICANCE OF THE AMENDMENTTO CIVIL CODE SECTION 813 THAT OCCURRED CONCURRENTLY WITH THE ENACTMENT OF CIVIL CODE SECTION1009 Both of the amicus briefs filed in this case highlight the importance ofthe amendmentofCivil Code section 813 that waspart of the legislation enacting Civil Code section 1009 to the interpretation of Civil Code section 1009. The Mikkelsen Brief doesso intentionally;the PLF Brief does so unintentionally. TheMikkelsen Brief directly addresses the fact that, if Section 1009 had in fact completely eliminated all common law implied | dedication legal theories, Section 813, and in particular the Legislature’s amendmentof Section 813 concurrently with the enactment of Section 1009, would be superfluous. (Mikkelsen Brief, pp. 15-19.) That the Legislature took the trouble to amend Section 813 to makeit more useful to property owners who wishto protect title to their property is a clear indication Section 1009 was not intended to eliminate implied in law dedication of non-coastal property, while at the same time providing a 01206.0001/308510.2 mechanism for protecting title to coastal property as well. (See Reply Brief on the Merits, pp. 17-18.) The PLFBrief, by contrast, highlights the importance of Section 813 by ignoring it. Focusing on concernsofproperty ownersand raising the specter of takings without just compensation, the PLF Brief concludes the only possible solution is to interpret Section 1009 as eliminating all potential for implied dedication. Yet Section 813 addressesall ofthese concerns, as well as the concerns ofcommentators who concluded that Gion-Dietz imposed on property owners an impossible burden of proof with regard to showing the public’s use of property was with permission or license. By the simple expedient of recordinga notice, a relatively easy and inexpensive measure, a property ownercanprotecttitle to his property from inadvertently being dedicated to public use.’ Use by the public maybe conditioned on time, place and mannerrestrictions, and use in violation ofthoserestrictions will not be considered public use for purposes of a finding of implied dedication. ' Section 813 provides, however, that, once notice has been recorded granting permission to use the property, “the ownershall notprevent any public use appropriate thereto by physical obstruction, notice or otherwise.”In addition, in the context ofcoastal property, subdivision(f) of Section 1009 imposesa similar requirement where notices pursuantto Section 1008 are posted. Defendants Erickson/Malick recorded a Section 813 notices in 2008. (Ex. 194, Documents, Tabs 23 and 24; 9 RT 1803:20-1808:23.) All Defendants posted “No Trespassing” and “Keep Out”signs and/orinstalled gates blocking the roads. Because of these contradictory actions, the trial court concluded notices recorded and posted by Defendants were ineffective to prevent Plaintiffs from establishing an implied dedication. (6 CT 1221-1223; 6 RT 958:28- 965:17, 977:14-978:4; 7 RT 1293:1-1294:14; 9 RT 1858:2-1860:11, 1884:1-1885:18, 1887:7-1888:16, 1890:5-1904:10, 1915:9-1916:9.) 01206.0001/308510.2 Through Section 813 this objective can be achieved without the expense of fencing orpatrolling property or other potentially costly measures to secure the property. I. PLAINTIFFS’ AND THE TRIAL COURT RELIED IN PART ON IMPLIED IN FACT DEDICATION Theapplicationto file the Mikkelsen Briefstates that Plaintiffs are relying solely on implied in law dedication. (Mikkelsen Brief, Application, p. 3.) This statementis incorrect. Plaintiffs did relyattrial on impliedin fact dedication with respect to those portions ofthe roads at issue that are the subject of the 1970 Declarations and Grants of Easements. (Ex. 54, 55, 56; 5 RT 753:13-761:3; Ex. 194, Documents, Tabs 5, 14, 16 and 25; see Opening Brief on the Merits, pp. 11-12, 56.) The trial court’s finding for Plaintiffs was based in part on the 1970 Declarations and Grants of Easements. (6 CT 1215-1216.) Consequently, the distinction the Mikkelsen Briefdraws between the effect of Section 1009 on implied in fact dedication as opposedto its effect on implied in law dedication — which becomesrelevantonlyifthis Court is inclined to affirm the court of appeal’s interpretation of Section 1009 — is pertinentin this case as well as in the case to which Mikkelsen is a party. (See, Mikkelsen Brief, pp. 6-10.) Such a conclusion would preservethetrial court judgmentat least to the extent of the portions of the roads in question that are the subject of recorded dedications. 01206.0001/308510.2 IV. THE MIKKELSEN BRIEF CORRECTLY IDENTIFIES THE COURT OF APPEAL’S FAILURE TO RECOGNIZE THE DIFFERENCES BETWEEN IMPLIED IN FACT DEDICATION AND IMPLIED AT LAW DEDICATION AS A SOURCE OF ERROR The Mikkelsen Briefnotes that the court ofappeal recognized the distinction between implied in fact and implied in law dedications, but neverreturnedto that distinction in its analysis. (Mikkelsen Brief, p. 5; Slip Op., p. 24.) The court of appeal’s failure to do more than paylip service to the distinction was central to its erroneous decision. The significance of the court of appeal’s failure to fully address both implied dedication theories is reflected in the court of appeal’s discussion, in an unpublished portion ofthe opinion,ofthe effect ofthe documents on which the trial court relied in finding implied in fact dedication as to certain parts of the roads. (Slip Op., pp. 35-36; 6 CT 1215-1216.) The court of appeal launched a three-fold attack on Plaintiffs’ implied in fact dedication argument. First, the court of appeal stated the conditions for acceptance of the 1970 Declarations and Grants ofEasements werenotsatisfied. (Slip Op., p. 36.) However, under an implied in fact theory, express acceptanceofthe dedication would not have been necessary. 01206.0001/308510.2 Second,in reliance on a case in which the documentargued to be a dedication never became effective (as opposed to requirements for acceptanceofthe dedication never having been met), the court ofappeal rejects the concept of implied in fact dedication, irrespective of any effect Section 1009 might have had on it. (Ship Op., p. 36 n. 14.) Third, the court of appeal states “no testimony was introduced about public use before 1972 such as would constitute implied acceptance”(Slip Op., p. 36), suggesting implied in fact dedication prior to the effective date of Section 1009 wasat least theoretically possible, in contradiction to the court of appeal’s attacks on the implied in fact doctrine inherentin its other statements that a dedication could only be accepted in the mannerstated in the recorded documents. Whatthe court ofappeal never consideredis that, based on the then-existing case law to the effect Section 1009 only prevented recreational use from ripening into a public easement, Plaintiffs could not have knownevidence ofuse before 1972 was particularly significant for their implied in fact arguments(or, for that matter, their implied law arguments). However, the fact there was evidence in the record of use prior to 1972 calls attention to the court of appeal’s inversion of appellate principles regarding makingall necessary inferences from the evidenceto support, rather than overturn a judgment. (See Opening Brief on the Merits, pp. 4-13; 6 CT 1208-1214, 1216-1220, 1224-1225.) 01206.0001/308510.2 V. CONCLUSION Plaintiffs conclude the issues raised in the Amicus Briefs are pertinent to the case and worthy of consideration, provided due consideration is given to the effect of Civil Code Section 813. Dated: August 18, 2016 Respectfully submitted, ALESHIRE & WYNDER, LLP JUNES. AILIN . ttorneys for Plaintiffs, Appellants and Respondents, JAIME A. SCHERand JANE McALLISTER 01206.0001/308510.2 CERTIFICATE OF WORD COUNT I certify pursuant to Rule 8.204(c) of the California Rules of Court, the attached Appellants’ Answer to Amicus Curiae Briefs was produced on a computer and contains 1,620 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 € this document. 01206.0001/3085 10.2 CERTIFICATE OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES Atthe timeofservice, 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 August 18, 2016, I served true copies of the following document(s) described as APPELLANTS’ ANSWER TO AMICUS CURIAEBRIEFSonthe interested 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 envelope or package addressedas indicated to the personsat the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. | am readily familiar with the practice of Aleshire & Wynder, LLP for collecting and processing correspondence for mailing. On the same day that correspondence is 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 postagefully prepaid. I am a resident or employed in the county where the mailing occurred. The envelope was placed in the mail at El Segundo, California. I declare under penalty of perjury under the lawsof the State of California that the foregoing is true andcorrect. Executed on August 18, 2016, at El Segundo, California. - L. ' Rosie A. Ortiz D> 01206.0001/308510.2 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 — Second District 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 Via U.S. Mail 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 Via U.S. Mail 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 01206.0001/308510.2 10 LEVINSON ARSHONSKY& KURTZ, LLP Richard I. Arshonsky Jason J. Jarvis 15303 Ventura Blvd., Suite 1650 Sherman Oaks, 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 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 _ Arthur F. CoonKenneth R.StylesMILLER STARR REGALIA1331 N.California Blvd., 5" Fl.Walnut Creek, CA 94596Tel (925) 935-9400 Attorneysfor Amici Curiae KeriMikkelsen,et al.Via U.S. Mail 01206.0001/308510.2 11 Michael T. Whittington One River Walk 10000 Stockdale Hwy, Suite 380 Bakersfield, CA 93311 Tel (661) 664-6899 Attorneysfor Amici Curiae Keri Mikkelsen,etal. Via U.S. Mail Damien M.Schiff AnthonyL. Fran¢ois Julio N. Colomba PACIFIC LEGAL FOUNDATION 930 G Street Sacramento, CA 95814 Tel (916) 419-7111 Attorneysfor Amici Curiae Pacific Legal Foundation, California Farm Bureau Federation and California Cattlemen’s Association Via U.S. Mail 01206.0001/308510.2 12