SCHER v. BURKEAppellants, Richard Erickson, Wendie Malick, Richard Schroder, and Andrea Schroder, Notice of ErrataCal.May 25, 2016S230104 In The Supreme Court of California JAIME A. SCHER,etal., SUPREME COURT Plaintiffs and Respondents, F j | - ve MAY 95 2016 JOHN F. BURKE,et al., Defendants and Appellants. Frank A. McGuire Clerk Deputy After a Decision by the Court of Appeal Second Appellate District, Division Three—Case No. B235892 On Appeal from the Los Angeles Superior Court Hon. Malcolm Mackey, Judge—Case No. BC415646 NOTICE OF ERRATA TO APPENDIX OF BAR JOURNAL ARTICLES IN SUPPORT OF ANSWER BRIEF ON THE MERITS OF RICHARD ERICKSON, WENDIE MALICK, RICHARD B. SCHRODER, and ANDREA D. SCHRODER GARRETT & TULLY,P.C. LEVINSON ARSHONSKY *Ryan C. Squire, SBN 199473 & KURTZ, LLP Zi C. Lin, SBN 236989 Richard I. Arshonsky, SBN 155624 Motunrayo D. Akinmurele, SBN 299868 Jason J. Jarvis, SBN 230158 225 South Lake Avenue, Suite 1400 15303 Ventura Blvd., Suite 1650 Pasadena, California 91101 Sherman Oaks, CA 91403 (626) 577-9500 > Fax (626) 577-0813 (818) 382-3434 * Fax (818) 382-3433 rsquire@garrett-tully.com rarshonsky@laklawyers.com Attorneys for Defendants and Appellants RICHARD ERICKSON, WENDIE MALICK, RICHARD B. SCHRODER, and ANDREA D. SCHRODER TO THE HONORABLE COURT, AND ALL PARTIES OF RECORD: Dueto inadvertence, the last two pagesof a bar journalarticle by Jay L. Shavelson, Asst. Atty Gen., entitled Gion v. City of Santa Cruz, Where do We Go From Here?, Calif. State Bar J. 416, Sept.-Oct. 1972, attached as Exhibit A to the Appendix of Bar Journal Articles in support of Mr. Erickson’s, Ms. Malick’s, Mr. Schroder’s and Ms. Schroder’s Answer Brief on the Merits, were omitted. Attached hereto as Exhibit A is a complete copy of Mr. Shavelson’s article. DATED: May22 2016 Respectfully submitted, GARRETT & TULLY,P.C. Ryan C. Squire Zi C. Lin Motunrayo D. Akinmurele y: (JY. ZiSOLin” Attorneys for Defendants and Appellants Richard Erickson, Wendie Malick, Richard B. Schroder, and Andrea D. Schroder B EXHIBIT “A” f b { A N N R A R . 1 0 1 7 L e r s i e l A T I V E I N I T E N I T C E D V / A C E v e l d SEPTEMBER. OCTOBER 1972 Vol. 47, No. 5 RICHARD S. VoLPERT Editor and Chairman Suite 3700 611 West Sixth St. Los Angeles, California 90017 MICHEL LIPMAN Managing Editor Epwarb L, LASCHER ' Articles Editor P.O. Box AJ Ventura 93001 Journal Committee RoNnap L. BAUER ‘Santa Ana STEVEN P, FELDMAN Los Angeles J. RICHARD GLADE Sacramento RICHARD R. Gone San Diego WALTER H, HARRINGTON,Jr. RedwoodCity Rosert B, KRUEGER Los Angeles ALFRED F, Macaini Santa Rosa — Ovvie MILLER Beverly Hills EUGENE B. Morosout, Jr. San Francisco Harry C. SIGMAN Los Angeles Sou SILVERMAN San Francisco pyright © 1972 by The State BarCalifornta. Published bi-monthly The State Bar of California. -fice of Publication; 601 McAllister |ret, San Francisco, California102, Price: $5.00 a year, $1.00 a ry. Second-class postage paid ato Francisco, California. Permis-n_to reprint materiala in theirnal may he granted on written alication to the State Bar of Cali-ala, PTEMBER + OCTOBER 1972. SYMPOSIUM ISSUE... California’s Coastline ARTICLES Coastal Zone Management: The California Experience Robert B. Krueger ............00.0000... 000-000... 402 | Title to Lands in the Coastal Zone: Their Complexities and Impact on Real Estate Transactions Thomas E. McKnight... 2.0.2... eee ee eee. 408 Gion v. City of Santa Cruz: Where Do We Go From Here? ; day L. Shavelson ......0000.02....0000....vteteene 414 Patented Tidelands: A Naked Fee? .. Marks v. Whitney and the Public Trust Easement. N. Gregory Taylor ................eee eee eee eee ee 420 Regional Planning: The Coastal Zone Initiative Analyzed in Light of the BCDC Experience Harry A, Jackson and Alvin Boum ............. seeeee 426 Board Highlights . Thomas M, Jénkins ...... tee cee eensLee eee 439 Annual Reportof the Board of Governors David K. Robinson ............0..00...00.00000 6. 501 The Franchise Concept Under the Franchise Investment Law Hans A. Mattes. Corréction ......................... 544 Effective Estate Planning: Some Procedural Observations _K. Bruce Friedman. Correction tree eee eee eee eee ee. 544 DEPARTMENTS tos Editor's Viewpoint ...............1-7, President-Elect’s Message: Year in Review ., .- sent eeacyees 398lascher At Large ............0...0...,........ ‘eee eens A433Conference of Barristers ...............0...0000000000 442 STATE BAR NEWS Bar Examinations Statistics 2.6.0... 6.000000 cae cece, 536Discipline Imposed ................00000000000000000 542 COVER PHOTOGRAPH: View of Monterey Bay, looking north. Photographby courtesy of Monterey Peninsula Chamber of Commerce. 395 f Q N M \ R A B . 1 0 4 7 F E R R I C ! A T I N / E I N F T E N T C E D V I C E a e d ] o p e . GION v. CITY of SANTA CRUZ WHERE DO WE GO FROM HERE? | By Jay L. Shavelson* Assistant Attorney General State of California JAY L. SHAVELSONattended Boalt Hall, where he received his LL.B. in 1952, and hie Masters in 1954, at which time he joined the California Attorney General's office. He became Assistant Attorney General and. statewide head of the Land Law Section in 1964. He wrote the amicus curiae brief and argued before the California Supreme Court in the Gion case. © SEPTEMBER - OCTOBER 1972 _Attorney General. IN FEBRUARY OF 1970,-an earthquake of major proportions occurred in California real prop- erty law. Its tremors have been felt by the Legislature, the bar, private landowners,the land title industry, and the public at large, This was the celebrated consoli- dated action of Gion v. City of Santa Cruz and Dietz v. King.) The California Supreme Court considered in the consolidated ac- tion (hereinaftercalled “Gion’’)? whether there had been an implied dedication of the two beach areas. The Court summarized its holding in the followingsimple sentences: “... In each case the trial court’ found the elements necessary to implied dedication were present —use by the public for the pre- scriptive period [five years] . without asking or receiving per- mission from the fee owner, There isno evidence that the re- . -*The views stated herein are purely those of the author and do not necessarily represent the position of the office of the 12 Cal.3d 29 (1970). : "#Rhymes with “Ryan.” 415 f Q N M \ B R A . 1 0 1 7 P E A I C H A T I V E I N I T E N I T C E R V I C E wn ed ] spective fee owners attempted to ~ prevent or halt this use. It fol- y'lows:as a matter of law that a place.” The importance of the case lies in the fact that the Court expressly repudiated the presumption of ear- . lier decisions that public use of un-. : enclosed and uncultivated land was attributable to a license on the part of the owner, rather than his intent to dedicate. This was said to be par- ticularly true where the user ex- ‘tended over an entire tract, rather than a.definite and specified line, so that dedication would practically destroy the value of the property to the owner himself.2 ‘The decision has evoked a flurry ofarticles in California periodicals, _ “ whose titles and content reflect everything from sober analysis to righteous indignation.‘ To avoid fields already plowed, this article is limited to the follow- ing: 1. What the Legislature has al- ready done as a result of the Gion decision; 2. What further legislative steps: are underconsideration; 3. Absent legislative abrogation, how will the Gion doctrine be applied in future cases. _ Legislation Enacted in 1971 Despite a number of proposals, the Legislature enacted only one bill during the 1971 Legislative Session directly traceable to Gion.® . This bill amended section 813 of the Civil Code and added section | 1009. Briefly stated, the legislation does two things: a. Abrogates, with certain ex- ceptions, the doctrine of im- plied dedication as to all in- land areas; i.e, Jands more 416 ‘dedication to ‘the public took ° than 1,000 yards from the mean high tide line of the Pa- 1 cific Ocean and:its ‘bays’ and.: b. Establishes a liberalized pro: _ cedure by which owners of ' coastal properties can avoid implied dedication arising from futurepublic use. The legislation applies only to public use after its effective date (March 4, 1972). It does not pur- port to affect implied dedications existing as of that. date.” Its basic purpose is to give owners a method 8Manhattan Beach v. Cortelyou, 10 Cal. _ 2d 653 (1938); Whiteman v. City of San Diego, 184 Cal. 163 (1920) ; City. of San Diego y. Hall, 180 Cal. 165 (1919); F. A. Hihn Co. v. City of Santa Cruz, 170 Cal. 436, 448 (1915). . , 4Armstrong, Gion v. City of Santa Cruz; Now You Own It.— Now You Don't; or The Case of the Reluctant Phi- lanthropist, 45 L.A. Bar Bull. 529 (1970); Comment, This Land Is My Land: The Doctrine of Implied Dedication and its Application to California Beaches, 44 So. Cal. L.Rev. 1092 (1971); Comment, A Threat to the Owners of California’s Shoreline, 11 Santa Clara Law 327 (1971); Comment, Public or Private. Ownership of Beaches: An Alternative to Implied Dedication, 18 UCLA L.Rev. 795 (1971); Note, Californians Need Beaches—Maybe Yours!, 7 San Diego L. Rev. 605 (1970); Note, Implied Dedica- tion in California: A Need for Legisla- tive Reform, 7 Cal. Western L, Rev. 259 (1970); Note, The Common Law. Doc- trine of Implied Dedication and Its Effect on the California Coastline Property Owner, 4 Loyola U. L.Rev. 438 (1971); Note, Public Access to Beaches, 22 Stan, L.Rev. 564 (1970) ; Note, 59 Calif. L.Rev. 231 (1971). 5Senate Bill 504 (Lagomarsino) “ en- acted as Statutes of 1971, Chapter 941. ®Some question has been raised as to the constitutionality of the distinction between coastal and inland properties. However, the validity of the classification would appear to be assured by the fact that it was adopted in the Gion decision itself. 2 Cal.3d at 41-43. If the statute were found unconstitutional, the “sever- ' ability clause” would purportedly pre- serve the distinction set forth therein up to the time of judicial determination. Statutes of 1971, Chapter 941, § 4, 7See Statutes of 1971, Chapter 941, § 3. CALIFORNIA STATE BAR JOURNAL i fi| q ; [ R A M B R A . A 0 4 7 + L E I ) A T I N V E I N I T E N T C E R V I C E a n e d / of avoiding future implied dedica- tions, short of excluding the public from theland. As to inland properties, the doc- trine of implied dedication still ap- plies to lands improved, cleaned or maintained at public expense, in such a mannerasto put the owner on reasonable notice. Civ. Code §1009(d). Coastal owners are given a wide, almost bewildering, variety of ways to protect them- selves against implied dedications arising from future use. At least superficially the most attractive al- ternative is Civil Code § 813, amended to eliminate some glaring weaknessesin its formerlanguage. Under this section, the owner re- cords a notice (revocable at any time) saying that any use whatso- ever by the public is by permission, . and subject to the control of the owner. Posting The new legislation also makes it clear that compliance with Civil Code § 1008 (relating to posting of signs) prevents future implied dedication.® It gives the owner the option of publishing, rather than posting, the language set forth in that section.'° Civil Code § 1009(f) (1). _ If the owner uses signs, he must post them at each entrance or at . intervals of not more than 200 feet along the boundary. If anyone re- - moves them, they must be renewed at least once a year. Publication must be made annually and in ac- cordance with Government Code § 6066 (i.e., two publications with- in a two week period). The obvious advantages of cheapness and con- venience offered by section 813 are perhaps offset by the fear of dam- aging exceptions in title policies arising from any notice which ap- pears in the record chain oftitle. SEPTEMBER « OCTOBER 1972 -: Furthermore, regardless of the method used, the owner must not “prevent any public use appropri- ate under the permission granted.” Civil Code § § 1009(f) and 813. It. may well be argued that the “ap- propriate” uses are wider under § 813 (which refers to “any use whatsoever”) than under § 1008 (which refers only to the “right to pass’). All things considered, many attorneys may well advise posting or publication, rather than recordation. Future Developments Gion has raised questions which will have to be answered by. the * Legislature and the courts. A de- tailed discussion of pending Bills would not be fruitful because they may be substantially altered or even defeated by the timethis ar- ticle appears in print. However, since the issues raised by pending legislation will be with us in any case, some brief commentis appro- ' priate. The most urgent issue is whether the Gion doctrine should be re- ®This section formerly provided for the recordation by the owner of a notice of consent to the use of his land “for the purpose described in the notice.” The re- corded notice was evidence that subse- quent use of the land “for such purpose” was permissive and with consent. The problem, of course, was that while the owner protected himself against dedica- tion for the relatively harmless uses he ‘was likely to specify (e.g., hiking), he was not protected against dedication for more damaging uses (eg., a garbage dump). ®Section 1008 provides that upon com- pliance with its provisions, no use by any person or persons “‘shajl ever ripen into an easementby prescription.” Since Gion (2 Cal.3d at 39) draws a sharp distine- ‘tion between easements by prescription and those arising from implied dedica- tion, the former applicability of section 1008 to implied dedication was at least in - doubt. 10“Right to pass by permission,. and subject to control, of owner: ‘ Section 1008, Civil Code.” S 417 f Q N M \ B A R . 1 0 1 7 P E I ! A T I V E I N I T E N T C E D V I C E w u d tained. at all. Senate Bill 7421 ~~ would create a presumption that all publi¢ tse of unenclosed land prior to 5 years before the effective date. . of theact, without objection or in- | _ terference by the owner, shall be presumed permissive and with the consent of the owner. Exceptions .. are made as to: lands which have. been improved, cleaned or: main- tained at public expense, and as to litigationpendingasof the effective date of theact and involving public entities. Arguments Pro Since the abrogation of this very .presumption is the heart of the Gion decision, this Bill, where ap- plicable, would reinstate the law as “many thoughtit to be prior to Gion. Wemay expect arguments such as the following from the proponents of the Bill: 1. That decisions prior to Gion - lulled property owners into a false sense of security about the consequences of failing to exclude the public; 2. That Gion penalizes the be- nevolent property owner and protects the “Scrooge” who maintained fences and guards; 3. That the public should not be rewarded for trespassing on private lands; and, 4. That a dedication arising sole- _ ly from use by members of the public (as distinguished from | a public agency) has one of two undesirable consequences; it either (a) imposes an obli- gation on the local public en- tity (city or county) against its will, or (b) creates a “floating” dedication as to which no public entity has re- sponsibility; eg., for main- taining safe andsanitary con- ditions,etc. 418 Arguments Con ‘Those opposing’ SB. 742 would - contend: i. That the presumption created by the Bill would be virtually irrebuttable in a practical sense. The Legislature would, in effect, be relinquishing pub- lic beach and recreational areas which are already much too limited; 2. That such relinquishment would be of questionable con- stitutionality under section, 25 of Article XIII of the Califor- nia Constitution (the “gift clause’’) ;12 ee 3. That, as applied to beaches and other dedicated areas af- fording access to. navigable waters, the Bill is of doubtful 11As amended on June 15, 1972. this Bill reads as follows: — “The people of the State of Califor- nia do enact as follows: Section 1. Section 647 is added to the Evidence Code, to read: . 647. (a) Public use prior to 5 years before the effective date of this section of unenclosed private. land without ob- jection or interference by the owner of such land or by the person in lawful possession thereof shall be presumed to e permissive and with the consent of the owner or person in lawful posses- sion thereof, except where a govern- mental entity has expended public funds on substantial visible improve- ments. on or across such land, or the cleaning or maintenance related to the public useof such land, in such a man- ner that the owner knows or should know that the public is making a use of his land which is reasonably related to such improvements, cleaning or maintenance. | . (b) The presumption created by this section shall affect the burden of pro- ducing evidence and not the burden of ‘proof, Section 2. This act shall not apply to any action pending onits effective date in which the state, a city, a county, or a city and county, is a party on such effective date.” : 12"Section 25. The Legislature shall have no power ... to make any gift or authorize the making of any gift, of any public money or thing of value to any in- dividual, municipal or other corporation whatever. ...” CALIFORNIA STATE BAR JOURNAL { R O N M \ B A R 1 0 4 1 7 T E C I C E A T A / E I N I T E N T C E D V A C E ~ % Gn a constitutionality under sec- tion 2 of Article XV of the - California Constitution..4 This section was one of the- bases of the Gion decision ;14 4. That Gion and Dietz on their facts involved a large degree of equity in the public, and it should not be assumed that future courts will apply the ° precedent unfairly or oppres-. sively; - 5. That less drastic legislation can mitigate the hardship on private owners without dam- aging the public interest ;15 6. That the five year provision in. Senate Bill No. 742 specifical- ly rewards those owners whose response to Gion was to erect illegal fences and to plough over paths and other evidence of public use; and, 7. That public entities should at least have the opportunity of assuming the responsibilities. properly attributable to dedi- cations arising solely from use by membersof the public. Difficult Decision . The arguments on both sides have powerful appeal, requiring Solomon-like wisdom for their res- olution. Fortunately for the author, his obvious prejudice as a public lawyer disqualifies him from mak- ing such an attempt. Far more complex, but less dras- tic, legislation has been proposed at the 1972 Legislative Session in Senate Bill No. 82 and Assembly Bill No. 1410. These Bills are in- tended to accomplish a number of laudable objectives, although their precise content is a matter of sub- stantial controversy. Among these objectives are the following: 1. The designation of the state and local public entities hav- ing the right and responsibil- SEPTEMBER « OCTOBER 1972 ity for representing the public interest in dedicated areas;16 2. The creation of 2 procedure by which an ownercn sue to clear his title or define the Scope of anyalleged implied dedication; continued on page 482 13“Sec. 2, No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of suc water; and the Legislature shall enact such luivs ag will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always at- tainable for the people thereof.” (Em- phasis added.) 14Senate Bill No. 742 is much more vulnerable to attack under section 2, Ar- ticle XV than Senate Bill No. 504 of the 1971 Session (discussed above). This be- cause S.B. 504 may increase public access by encouraging owners to keep their lands open to the public by cHminating the fear of dedication by implieation, while S.B. 742 appears to have the sole effect of diminishing public access. 15See discussion of Senate Bill No. 82 and Assembly Bill No. 1410, infra. 1¢The confusion in this regard is il- lustrated by the following multiplicity of theories expressed or implied inlitigation and agreements following Gion: a. The rights reside in the “public” and no governmental entity, or com- : bination of entities, has the power to relinquish or clarify such rights. b. All rights reside in the local entity. wherein the lands are located, i-e., the | - municipality, where the lands are in an incorporated area, or the county, if theyare located in an unincorporated area. ‘ ¢e. The rights reside in the local. en- tity, as stated above, but only where it has participated in the acquisition of the rights, e.g., by maintaining or im- proving the lands with public funds or personnel. : , d. The rights reside in the State un- der Civil Code sectjon 670 or Govern- ment Code section 182, as property of which there is no owner, , e. Rights adjacent to navigable wa- ters reside in the State acting through the State Lands Commission under sec- tions 6216 and 6301 of the Public Re- ‘ sources Code, as easements appurte- nant to the lands underlying suc wa- ters. . : : 419 - { Q N A M B R A _ 1 0 1 7 ( E r i e ! A T I N / E I N I T E M T C E D P V I C E a n e d GION v. CITY OF | SANTACRUZ “/ continued from page 419 . The elimination of the ‘‘float- ing” (unaccepted) dedication if public entities fail to accept the responsibilities of dedica- tion within a reasonable time; 4. Thecreation of a procedure whereby dedications may be abandoned or relocated after public hearings; ’ 5..The elimination of the threat to owners and purchasers arising from dedications which have vested in the past, but of which there is no pres- ent evidence on the ground.?? A detailed discussion of the pending legislation would unduly prolong this article and would,in any event, be rendered obsolete by -: future amendments. However, all + . lawyers concerned with land law, | and especially shoreline properties, should be aware of the Legislative - efforts to meet the problems. posed by the Giondecision, both .as en- acted and as proposed. Gion’s Future in the Courts Althoughthe effect of Gion in fu- ture litigation may be affected more bystatutory than by case law, the decision raises as many ques- tions as it answers. Thus, a brief discussion of some of these open questions which appear to be of greatest interest to members of the Bar may be worthwhile. Preliminarily, we may predict that the legislative backlash as re- ceed cautiously in expanding Gion or applying the-doctrine to facts radically different from those in- volved in Gion and Dietz. The Leg- 482 flected in statutes, both enacted'*: and proposed, and in legal periodi-. cals,'® will cause the courts to pro-: islature’s reaction (beyond the sub- . Stantive. effects ,of enacted laws) | may be especially‘significant since: Gion relied heavily, upon legislative - policy to suppoft..its. conclusion." California courts ‘are not likely, therefore, to follow: Oregon’s lead in State ex rel.:Thornton v. Hay,?' by applying theEnglish doctrine of custom to find all or any significant segment of the California shore open to public use. The language in Gion raises a number of intriguing questions which can only be resolved in fu- ture decisions. Among them: This threat is illustrated by the statement in Gion (2 Cal.3d at 44)that: “Nothing can be done by the present own- ers to take back that which was. previous- ly given away.” “Counter-prescription” ' by the owner appears to be presently preg cluded by the accepted rule that lands dedicated to public use are immunefromt{ private prescriptive rights. Civil Co §1007; People v. Chambers, 37 Cal.2 652, 556-57 (1951). Cc 14See, eg., the following recitals i Civil Code § 1009: ~ .“(a) The Legislature finds that: -“(L) Itis in the best interests of the state to encourage owners of private real property to continue to make thek lands available for public recreation® use to supplement opportunities avai able on tax-supported publicly owndé facilities. g (2) Owners of private real prog erty are confronted with the threat loss of rights in their property if th allow or continue to allow members ¢ the public to use, enjoy or pass ove their property for recreational pud poses. = “(3) The stability and marketabilit of record titles is clouded by such pub lic use, thereby compelling the owney to exclude the public from his profi erty.” : u 19See footnote 4, supra. - 202 Cal.3d at 42-43. 21254 Ore. 584, 462 P.2d 671 (19% The court in Hay held that as a reyy of custom the public has the righi® use privately owned dry-sand areac#& beaches—i.c., the areas above the c 4 nary or mean high-tide line but seaw.. of the line of vegetation—for public rec reational purposes. The Hay case was ri affirmed by the Oregon Supreme Cow in State Highway Commission v. Fult 491 P.2d 1171 (Ore. 1971) and the do: trine enunciated therein survived an a tack on its constitutionality in the U.! District Court case of Hay v. Bruno, Ca: No. 68-300 (D.C. Ore., June 6, 1972). CALIFORNIA STATE BAR JOURNA sib 4-»~ Differences Cited=« The Court clearly implied that the rules governing shoreline prop- erties differ from those governing recreational areas in other parts of the State.2?. This distinction was placed upontwo separate grounds, (a) the strong public policy in fa-vor of shoreline access and (b) the fact that under modern conditions, beach areas are as well-defined ag roadways. Left open is the question ‘as to whetherthe liberal rule enun- ciated in Gion is applicable to any but shoreline properties. Persua-sive arguments can be made that lands littoral to non-tida] navigable waters (such as lakes and rivers) are subject to the same policy con- siderations as ocean front proper-ties since section 2, Article XV?" of the California Constitution applies’ to all navigable waters, not just tidelands. Also, non-navigable fish- ing streams are at least as well de- fined as beaches; the public right to fish enjoys constitutional and stat- utory protection similar to that af- fecting the shoreline.24 Another question is the legal standard applicable to lands not subject to the same policy consider- ations as shoreline properties; e.g., . unenclosed range and forest lands. Gion appears to have eliminated any presumption of permissive use, even as to lands of this character.?5 However, in situations where ex- clusion of. the public from such lands is difficult or unfeasible, it may well be argued that there re- mains a reasonable inference that - the public regarded the use as per: :missive, and that in practical effect, |.the former law remains un- changed.*¢ Implications OO Gion (at page 41) states that“..‘No Trespassing’ signs may be sufficient when only an occasionalhiker traverses an isolated prop-erty ...” From this statement, it SEPTEMBER * OcToBER 1972 wad j to “fia peeenerhE inal bso et ahmaybe'inféredthatin theabsenceof such a sign, occasional hikers onan isolated property would havebeen sufficient to establish an im-‘ plied dedication. However, in lightof the actual facts in Gion andDietz, this statement should be re-garded as_obiter dictum. It isdoubtful that mere “occasional” useis sufficient to establish an implieddedication, whether or not the area.was posted. The fundamental prin-ciple to be derived from Gion isthat an implied dedication will!arise where the public has used theland as if it were public land. Thiswas clearly the case in both Gion and Dietz. There is no reason to as- sume that the courts will find animplied dedication unless the ownerhas allowed members of the genera] Public to use the land in such a mannerthat their sudden exclusion would defeat their reasonable ex- pectations of continued availability, Conclusion The difficulties and confusion °«created by the Gion decision shouldnot.be ignored bythe Legislature., |On the other hand,it is submitted that they are not Such as to require outright abrogation. By giving re-sponsible public officials the pro--cedural powerto act with flexibility. and by allowing the courts to refinethe law on a case by case basis, there can be little doubt that a fair balance between public and privateequities can be achieved. Whatis .neededis a scalpel, not an axe, 222 Cal.8d at 41-43, ‘*4See fn. 13, supra, Sos 24E.g., Calif. Const, Art. 1, §25, Fishand Game Code §§ 5930-6948.” my. 252 Cal.3d at 40-41, . roe *6The Oregon Supreme Court presentsan example of differentiation between in-.land and coastal] properties. While the |Hay decision is perhaps the most far- .reaching American decision on coastalimplied dedication, the recent decision inMiuczzy v. Wilson, 487 P,2d 875, 879 (Ore.1971) lays down a rather stringent stand-ard for implied dedication of non-littoralinland properties, 483 g o o f Q N N \ R A R . 1 0 1 7 P E Q I C L A T I V E I N I T E N I T C E R V I C E ~ a t e d ] CERTIFICATE OF MAILING I am and wasatall times herein mentioned over the age of 18 years and not a party to the action in whichthis service is made. At all times herein mentioned I have been employed in the County of Los Angeles in the office of a memberof the bar of this court at whose direction the service was made. My business addressis 225 8. Lake Ave., Suite 1400, Pasadena, California 91101. On May 24, 2016, I served an executed copy of the Notice of Errata to Appendix of Bar Journal Articles in Support of Answer Brief on the Merits of Richard Erickson, Wendie Malick, Richard B. Schroder, and Andrea D. Schroder The original and eight copies were deposited in the facility regularly maintained by Federal Express, in a sealed envelope with delivery fees fully provided for and addressedas follows Clerk of the Supreme Court Supreme Court of California Earl Warren Bldg. - Civic Center 350 McAllister Street, Ro 1295 San Francisco, CA 94102-4797 I caused such envelope with postage thereon fully prepaid to be placed in the U.S. mail at Pasadena, California. Iam “readily familiar” with thefirm’s practice of collection and processing correspondencefor mailing. It is deposited with U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of a party served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 dayafter date of deposit for mailing in affidavit. Court of Appeal Second District, Div. 3 Ronal Reagan State Building 300 So. Spring Street 224 Floor, North Tower, Los Angeles, CA 90013 51 Superior Court of Los Angeles Hon. Malcolm Mackey, Dept. 55 111 No. Hill Street Los Angeles, CA 90012 JuneS. Ailin, Esq. ALESHIRE & WYNDER, LLP 2361 Rosecrans Ave., Ste 475 El Segundo, CA 90245 Tel (310) 527-6660 + Fax (810) 532-7395 E-mail: jailin@awattorneys.com Attorney for Plaintiffs Jaime A. Scher and Jane McAllister Bennett Kerns, Esq. LAW OFFICES OF BENNETT KERNS 2001 Wilshire Boulevard, Suite 200 Santa Monica, CA 90403-5789 Tel (310) 452-5977 * Fax (310) 828-2146 E-mail: kernslegal@yahoo.com Attorney for Defendants John Burke, Germaine Burke and Bennett Kerns, trustee of the A.S.A. Trust, Dated June 28, 2005 Robert S. Gerstein, Esq. LAW OFFICES OF ROBERT S. GERSTEIN 12400 Wilshire Blvd., Ste. 1300 Los Angeles, CA 90025 Telephone: (310) 820-1939 Facsimile: (810) 820-1917 E-mail: robert.gerstein]@verizon.net Attorney for Defendants John Burke, Germaine Burke and Bennett Kerns, trustee of the A.S.A. Trust, Dated June 28, 2005 Wendy Cole Lascher, Esq. FERGUSON CASE ORR PATERSON 1050 South Kimball Road Ventura, CA 93004 Telephone: (805) 659-6800 Facsimile: (805) 659-6818 E-mail: wlascher@fcoplaw.com Attorney for Defendant Gemma Marshall Richard I. Arshonsky, Esq. Jason J. Jarvis, Esq. LEVINSON ARSHONSKY & KURTZ, LLP 15308 Ventura Blvd., Suite 1650 Sherman Oaks, CA 91403 (818) 382-3434 + Fax (818) 382-3433 rarshonsky@laklawyers.com Attorneys for Defendants, Appellants, and Cross-respondents Richard Erickson, Wendie Malick, Richard B. Schroder, and Andrea D. Schroder I declare under penalty of perjury underthe lawsof the State of California that the aboveis true and correct and, that I am employed in the office of a memberof the bar of this court at whose direction the service was made. Executed on May 24, 2016 at Pasadena,California. SfarrauneNa LORRAINEV. BILLE
