SUPREME COURT FILED NOV 13 2015 CASE NO.: 8230104 IN THE Frank A. McGuire Clerk SUPREME COURT OF CALIFORNIA- Deputy JAIMEA. SCHERand JANE McALLISTER, Petitioners, CRC V. 8.25(b) JOHN F. BURKE;etal., Respondent. After a Decision By The Court of Appeal Second Appellate District, Division 3 Docket Number: B235892 Superior Court of Los Angeles, The Honorable Malcolm Mackey; Case No: BC 415646 ANSWERTO PETITION FOR REVIEW Robert S. Gerstein, State Bar #35941 Bennett Kerns, Esq., SB# 035310 Law Offices of Robert S. Gerstein Law Offices of Bennett Kerns 12400 Wilshire Boulevard, Suite 1300 2001 Wilshire Blvd., Ste. 200 Los Angeles, California 90025 Santa Monica, CA 90403 Tel: (310) 820-1939; Fax: (310) 820-1917 Tel: (310) 452-5977 Fax: (310) 828-2146 Jason J. Jarvis, Esq., SB# 230158 Ryan C. Squire, Esq., SB# 199473 Richard I. Arshonsky, Esq., SB# 155624 Zi C. Lin, Esq., SB# 236989 LEVINSON, ARSHONSKY & KURTZ, LLP GARRETT & TULLY 15303 Ventura Boulevard, Suite 1650 225 S. Lake Avenue, Suite 1400 Sherman Oaks, CA 91403 Pasadena, CA 91101 Wendy C. Lascher, Esq. SB# 58648 Joshua S. Hopstone, Esq., SB# 273719 FERGUSON, CASE, ORR, PATERSON, LLP 1050 Kimball Road Ventura, CA 93004 Attorneysfor Attorneys for Defendants and Appellants, JOHN F. BURKE; GERMAINE BURKE; RICHARD ERICKSON; CHRISTINA ERTEZAK; BENNETT KERNS, TRUSTEE OF THE A.S.A. TRUST, DATED JUNE28, 2005; WENDIE MALICK; GEMMA MARSHALL; NORTHERN TRUST BANK N.A.; ANDREA D. SCHRODER; RICHARD B. SCHRODER TABLE OF CONTENTS INTRODUCTION oo. ccscsseeescensceseensesseceneccssesessesecsaeseesseseesseesneesneeaes 1 I. PETITIONERS FAIL TO CHALLENGE THE OPINION’S DEMONSTRATION THAT SECTION 1009 APPLIES TO NON- RECREATIONALUSES.oo. eeeecceeeesecseeeeeeeeenaeeeesaeeneeneseeseaeesseenneeaes 3 Il. THERE ARE NO GROUNDSFOR AN EXCEPTION IN SECTION 1009 FOR ROADS.occeeeceencetecesseeeeeeeeeesseeeseseeeeeseeaeens 6 If]. PETITIONERS CONTENTION THAT SECTION1009 IS INHERENTLY CONTRADICTORYIS BASELESS. 0... 11 CONCLUSION uno. cecccsscscsesesseseeteeeeseeetsctecseeseeaeceenseseecesssesesesstesessensases 13 CERTIFICATE OF WORD COUNT.....cccecseseesesseceesseesrssessesseesessesesenes 14 TABLES OF AUTHORITIES CASES Burch v. Gombos (2000) 78 Cal.App.4th 352 icccecccccssssesssesssstscsssesssecsssessesssecssssessesssseatesseses 9 Bustillos v. Murphy (2006) 96 Cal.App.4th 1277 oe cccccccccssscsessessessessssensesssseseesseeseeesseeeaes 4,9, 10 Gion v. City ofSanta Cruz (1970) 2 Cal.3d 29 iicccsecsccscssresssessesessessesssecsessssevsseeeesseseessasens 7, 8, 10 Friends ofthe Trail v. Blasius (2000) 78 Cal.App.4th 810 occcccccsssssssssesesscesessesssessesecsecssssesseceesesssessees 9 Hanshaw vy. Long Valley RoadAssociation (2004) 116 Cal.App.4th 471ccccccccccscsscsssseesesscrecssscsesssssesscssssescsesensees 4,9 Klein v. United States ofAmerica (2010) 50 Cal.4th 68 oeccscsscssessessscsssssescssessessessessssssessssaesecssversaceaeens 5 Pulido v. Pereira (2015) 234 Cal.App.4th 1246, 1250 oo. cececcsscssscssesscssesssssessssecssceaseeceees 4,9 STATUTES Civil Code section 1009 woe cccsssscsscssesssssesesccssssseessenscssscessscessesseesenens 1-13 Government Code section 7050 ......cccccscssscsssscesscsssccssessssessserseceseseeausenes 11,12 ii CASE NO.: 8230104 IN THE SUPREME COURT OF CALIFORNIA JAIME A. SCHER and JANE McALLISTER, Petitioners, Vv. JOHN F. BURKE; GERMAINE BURKE; RICHARD ERICKSON; CHRISTINA ERTEZAK; BENNETT KERNS, TRUSTEE OF THE A.S.A. TRUST, DATED JUNE28, 2005; WENDIE MALICK; GEMMA MARSHALL; NORTHERN TRUST BANK N.A.; ANDREA D. SCHRODER; RICHARD B. SCHRODER Respondent. After a Decision By The Court of Appeal Second Appellate District, Division 3; Docket Number: B235892 Superior Court ofLos Angeles, The Honorable Malcolm Mackey Case Number: BC 415646 ANSWERTO PETITION FOR REVIEW INTRODUCTION Petitioners ostensible reason for seeking review is to resolve a conflict between the Opinion here, holding that Civil Code section 1009 barsthe ripening of any public use ofprivate property into a dedication to the public (Opn. 33), and earlier decisions which hold that the section 1009 bar applies only to use for “recreational” purposes (Ptn. 1). But Petitioners fail to make any argumentfor limiting section 1009’s application to recreational use. And,that failure is an effective admission that the Court of Appeal here came to the correct conclusion about the meaning of section 1009, leaving no real conflict for this Court to resolve. Petitioners now contend that there is another exception to the applicability of section 1009, one notraised in the earlier cases, or in this case until now. They claim that section 1009 is inapplicable to bar the implied dedication of roads. (Ptn., pp. 1, 14-16). As shown below, however, Petitioners provide no good reason to read that exception into section 1009 either. More generally, Petitioners complain that the Court of Appeal’s holding that “the law of implied dedication has been completely obliterated by section 1009” (except for coastal property) extends that statute’s reach “far beyond what[its] genesis and language... indicate the Legislature intended.” (Ptn. 20). The Opinion demonstrates, however, that this was precisely what the Legislature intended. Legislative history quoted in the Opinion makesclear the Legislature’s expectation that, with the passage of section 1009, “the doctrine ofimplied dedication would be deletedprospectively...” except for coastal land, and with that exception the statute would “[p]rohibit[] any use of private land... jrom conferring a vested right in [the] public...” without an “express written irrevocable offer” and acceptance in accordance with subsection (c) (emphasis in the original). (Opn., p. 31). In rejecting the earlier cases’ morelimited interpretation, the Court of Appeal washere fulfilling the Legislature’s clearly expressed intention, confirming that section 1009 means exactly whatit says. The Petition should be denied. I. PETITIONERS FAIL TO CHALLENGE THE OPINION’S DEMONSTRATION THAT SECTION 1009 APPLIES TO NON- RECREATIONALUSES. Petitioners made extensive arguments for the limitation of section 1009’s effect to recreational uses in their briefing on appeal (RB 30-37). Now,in the face of the Court of Appeal’s compelling reasonsfor rejecting that limitation, Petitioners have abandoned those arguments entirely. The Court of Appeal found decisive reasons for concluding that section 1009 appliesto all uses of private property by the public,in both the wordsofthe statute and its legislative history. First, the Court of Appeal found that the unambiguous language of the statute madeit applicable to all uses. Prior decisions had found the limitation of the statute’s ban to recreational uses in subdivision (a), the “preamble”of the statute, in which the Legislature states its intent to encourage landownersto “maketheir lands available for public recreational use.” Hanshaw v. Long Valley Road Association (2004) 116 Cal.App.4th 471, 485, Bustillos v. Murphy (2006) 96 Cal.App.4th 1277, 1280-81, Pulido vy. Pereira (2015) 234 Cal.App.4th 1246, 1250.! But the Court of Appeal here noted that the term “recreational” is found only in the preamble; it appears nowhere in the operative provisionsofthe statute. (Opn., p. 29). In contrast to subdivision(a)’s reference to “public recreational use”, the operative section (b) provides that “no use... by the public” shall ever ripen into a vested 'Only one of these decisions, Hanshaw -- in which there were deedsreferringto recorded maps containing offers of dedication,i.e., “explicit dedication, with an acceptance by public user”-- actually held section 1009 limited to recreational use. 116 Cal.App.4th 471, 476, 482-483. The statements of the limitation in the other casesare dicta. public right to use that property. Where,as here, the Legislature uses a term in onepart of a statute and omits it from another, it shows an intention “to convey a different meaning.” Klein v. United States ofAmerica (2010) 50 Cal.4th 68 at 80. The “preamble’s”use of “recreational” in subdivision (a) cannot be read into the operative language of subdivision (b) (Opn., pp. 28-29). Recognizing that other courts had interpreted subdivision (b) to apply only to recreational uses, however, the Court of Appeal went on to examine thelegislative history of section 1009. As already shown, that history only confirmed the court’s own unqualified reading of the statute. The Legislature’s intent was to “delete” the “doctrine of implied dedication” except for coastal property, forbidding “any use” of other private land from “conferring a vested right in [the] public.” (Opn., p. 31). Finally, the Court of Appeal showed that the importation of the term “recreational” from subsection (a) of the statute into subsection (b) would thwart the Legislature’s declared purpose rather than furthering it. Landowners whoaretold that only non-recreational - not recreational - use can ripen into dedication to the public, but are unable to distinguish between the two kindsof users, will be discouraged from allowing any public use of their property. The result would be to defeat the Legislature’s intent. (Opn., p. 32) As confirmed by Petitioners’ silence, the Opinion here has put to rest the issue of whether section 1009 applied only to recreational use. There is no need for this Court’s intervention. II. THERE ARE NO GROUNDSFOR AN EXCEPTIONIN SECTION 1009 FOR ROADS. To support of their new proposal to except roads from section 1009, Petitioners turn to the statute’s silence on the subject. The statute distinguishes between coastal and non-coastal property, and between recreational and other uses, but says nothing specific about roads. From that silence, Petitioners conclude that the Legislature “did not evidence any intent to change the law of implied dedication as it relates to roads.” (Ptn. 15) First, however, the failure of a statute using general language to reference a specific subject from that language cannot be reason to except that subject from the statute’s ambit. Otherwise there would be no end to exceptions. Section 1009 does not reference property used S C A R R I N G p e n aS o u a t e S o a N Y for parking or agriculture, either. But that does not justify making exceptions for them. Second, and crucially, section 1009 is not entirely silent on the subject. In subsection (a)(2) the Legislature expressedits intent to free owners from the fear they will lose property rights, not only if they allow the public to “use” and “enjoy” their property, but also if they allow the public to “pass over their property for recreational purposes.” Roads are amongthe principal means of passing over property. In the absence ofan explicitly stated exception for roads,it is reasonable to assumethat the Legislature intended to encourage ownersto allow passage overtheir property by roads as well as other means. Petitioners seek to distinguish roads from open land on the basis that the dedication of a road does not “preventall other use of an entire parcel of property.” (Ptn. 9). But the sameis true of any dedication resulting from owners’ willingness to have the public “pass overtheir property.” Petitioners’ effort to draw an exception for roads from case law fares no better. Petitioners begin with a lengthy discussion of Gionv. City ofSanta Cruz (1970) 2 Cal.3d 29 (Gion-Dietz), the implied dedication case that stimulated the passage of section 1009. (Ptn. 6-9). While first admitting that roads were included in the property subjected to implied dedication in Gion-Dietz (Ptn. 6), Petitioners later assert that Gion-Dietz “solely dealt with use of open land, not specifically roads...,” for recreational purposes.(Ptn. 8). The Gion-Dietz opinion shows, however,that the implied dedication in Gion wasofproperty used as a parking lot, and gave the public the right “in, on, over, and across said property.” 2 Cal.3d 29 at 35. In Dietz, it was a beach and a dirt road leadingto it. 2 Cal.3d 29, 36. This Court madenodistinction there between the land being used for recreation and the land traversed to get to the recreation. On the contrary, the fact that Gion-Dieiz’ dealt with roads and parkinglots is confirmation that section 1009 was, for one thing, aimedatfacilitating the public’s access to recreation by making it possible for them to drive across private land to recreationalsites. Petitioners claim that the concern which was generated by Gion-Dietz and led to the enactment of section 1009 wasnot about the implied dedication of roads at all, but only of open land. (Ptn.6, 9- 10). They provide no support for that claim, and the facts as we know them are to the contrary. Petitioners also address the cases dealing with section 1009 since its passage, Burch v. Gombos (2000) 78 Cal.App.4th 352, 356, n. 12, Friends ofthe Trail v. Blasius (2000) 78 Cal.App.4th 810, 817, Hanshaw v. Long Valley RoadAssociation, supra, 116 Cal.App.4th 471, 485, Bustillos v. Murphy, supra, 96 Cal.App.4th 1277, 1280-81, Pulido v. Pereira, supra, 234 Cal.App.4th 1246, 1250. (Ptn. 17-19). Petitioners assert that each of these cases “conclude[s], one way or another, that implied dedication of roads is not prevented by Section 1009.” (Ptn. 17). Again, Petitioners are attempting to draw affirmative support from silence. All of these cases deal with the question of whether roadsortrails have been subjected to implied dedication. And, in none but Bustillos did the courts find section 1009 applicable to bar implied dedication. Nowhere, however, did any of these the courts indicate that section 1009 was inapplicable just because there was a road ortrail involved. Further, Bustillos did apply section 1009 to prevent public recreational use of trails from ripening into implied dedication. And the Bustillos court nowhere suggested that the result would have been different if members of the public passed over private land on road, as in Gion-Dietz, rather than on a path. 96 Cal.App.4th 1277, 1280-81 Petitioners express a concern that application of section 1009 to roads could deprive ownersoflegal access to their homes,“just asit prevents plaintiffs here from accessing their home.” (Ptn. 20) But Petitioners have not even claimed that they cannot access their home, only that they are being denied access by the “quickest and most convenientroute.” (Opn., p. 45). As the Court of Appeal explained: “Plaintiffs calculate that traveling Henry Ridge Motorway south to Gold Stone Road is more convenient becausethis route to Topanga center takes 7 to 10 minutes. There are numerousroads connecting to Henry Ridge Motorwayin the north to Topangacenter, but those routes takeplaintiffs 18 to 20 minutes.” (Opn., p. 16). Noris this a case, like Gion, 2 Cal.3d 29, 36-37, in which hordesofthe public seek, and have been denied, access to defendants’ properties. It involves only Petitioners, a husband and wife who want to use their neighbors’ property out of convenience. 10 If, then, there were an argumentthat section 1009, though entirely silent regarding roads, should be read as making an exception for roads, whether because people may otherwise be denied legal access to their homes, or because the public at large may be denied access to a place they are clamoringto go,this is not the case in which to consider the issue. In sum, Petitioners have given this Court no good reason to believe that the Legislature did not intend section 1009 to encourage landownersto allow the public to “pass over their property for recreational purposes” by roads as well as footpaths. III. PETITIONERS CONTENTION THAT SECTION 1009 IS INHERENTLY CONTRADICTORYIS BASELESS. In an effort to show that the Legislature could not have meant section 1009 to eliminate the doctrine of implied dedication from California law completely, Petitioners argue that the provisions of the statute are confusing and inherently contradictory. (Ptn. 14-16). Petitioners’ argumentis that, while subsection (b) providesthat dedication to public use can only be done “in the mannerset forth in subdivision (c),” subdivision (c) itself provides that dedication may be done in the mannerprescribed by Government Codesection 7050, 1] “ijn addition to any procedure authorized by law andnotprohibited by this section...” According to Petitioners, subsection (b) points to subsection (c), and throughit to section 7050, as the only meansofobtaining dedication. But (c) explicitly allows for procedures other than that prescribed by 7050, so long as they are not otherwise forbidden by section 1009. So section 1009 does not completely eliminate other methods of dedication afterall. There is no contradiction. Subsection (b) prohibits dedication in the absence of an “express written irrevocable offer” made in accordance with subsection (c). Subsection (c) provides that such an offer can be made either under section 7050, or using any other procedure authorized by law and not prohibited by section 1009. However,as section 1009 prohibits dedication except by an “express written irrevocable offer,” the other proceduresreferred to must be modes of making “express written irrevocable offers” other than under section 7050. That provides no basis for concluding,for example, that an offer of dedication can be inferred from public use. 12 CONCLUSION The Court of Appeal worked hard and reacheda thoroughly- researched decision that correctly resolves the scope of Civil Code section 1009. Petitioners present no convincing reason for this court to address the issue. For the reasons stated above, Respondents respectfully request that the Petition be denied. Dated: November 10, 2015 Robert S. Gerstein LAW OFFICES OF ROBERTS. GERSTEIN Jason J. Jarvis, Esq. Richard J. Arshonsky, Esq. LEVINSON, ARSHONSKY & KURTZ, LLP Ryan C. Squire, Esq. Zi C. Lin, Esq. GARRETT & TULLY Wendy C. Lascher, Esq. Joshua S. Hopstone, Esq. FERGUSON,CASE, ORR, PATERSON, LLP » Llobet ROBERTS. GERSTEIN Attorneys for Appellants John and Germaine Burke,et al. 13 CERTIFICATE OF WORD COUNT Pursuant to Rule of Court 8.204(c)(1), I certify that the ANSWERTO PETITION FOR REVIEWis proportionately spaced, has typeface of 14 points or more, and contains 2342 words. Dated: November 10, 2015 LAW OFFICES OF ROBERTS. GERSTEIN » SEAALD ROBERT S.GERSTEIN” Attorney for Appellants John and Germaine Burke,etal. 14 PROOF OF SERVICE Re: Scher, et al. vs. Erickson, et al. Docket No.: B235892; LASC Case No.: BC 415 646. I am employed in the County of Los Angeles, State of California. I am over the age of eighteen and nota party to the within action. My business addressis 12400 Wilshire Boulevard, Suite 1300, Los Angeles, CA 90025. On November12, 2015, I served true and correct copies of the foregoing document described as ANSWER TO PETITION FOR REVIEW ontheinterested parties in this action addressed as follows: Please See Attached Service List [X BY MAIL: I am readily familiar with the firm’s practice of collection and processing correspondence for mailing I know that the correspondence is deposited with the U.S. Postal Service on the same daythis declaration was executed andin the ordinary course of business. I know that the envelope was sealed, and, with postage thereon fully prepaid, placed for collection and mailing on this date, following ordinary business practice,at Los Angeles, California. I declare under penalty of perjury underthe laws of the State of California that the foregoing is true andcorrect. Executed on this 12th Day ofNovember, 2015, at Los Angeles, California. fiPee Rosenbaum SCHER,et al. v. ERICKSON,et al. Docket No.: B235892 - LASC Case No.: BC 415 646 June S. Ailin ALESHIRE & WYNDER LLP 2361 Rosecrans Ave., Suite 475 El Segundo, CA 90245 Tel.: (310) 527-6660 E-Mail: jailin@awattorneys.com Attorneys for Plaintiffs and Respondents, Jaime A. Scher and Jane McAllister Jason J. Jarvis, Esq. Richard I. Arshonsky, Esq. LEVINSON, ARSHONSKY & KURTZ, LLP 15303 Ventura Boulevard, Suite 1650 Sherman Oaks, CA 91403 Attorneys for Defendants, Richard B. Schroder, Andrea D. Schroder Ryan C. Squire, Esq. GARRETT & TULLY 225 S. Lake Avenue, Suite 1400 Pasadena, CA 91101 Tel.: (626) 577-9500 Attorneys for Defendants, Richard B. Schroder, Andrea D. Schroder Wendy C. Lascher, Esq. FERGUSON, CASE, ORR, PATERSON, LLP 1050 Kimball Road Ventura, CA 93004 Tel.: (805) 659-6800 Attorneys for Defendant and Respondent, Gemma Marshall Bennett Kerns Law Office Of Bennett Kerns 2001 Wilshire Blvd., Suite 200 Santa Monica, CA 90403-5789 Tel.: (310) 452-5977 Attorneys for Defendant and Appellant Germaine Burke and Bennett Kerns Honorable Malcolm Mackey Los Angeles Superior Court 111 North Hill Street, Dept. 55 Los Angeles, CA 90012
