SCHER v. BURKEAppellants, Richard Erickson, Wendie Malick, Richard Schroder, and Andrea Schroder, Request for Judicial NoticeCal.September 20, 20165230104 In Whe Supreme Court of California JAIME A. SCHER,et al., Plaintiffs and Respondents, US. SEP 20 2016 JOHN F. BURKE,et al., Defendants and Appellants. 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 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF ANSWER TO KERI MIKKELSON, ET AL.’S AMICUS BRIEF GARRETT & TULLY,P.C. LEVINSON ARSHONSKY *Ryan C. Squire, SBN 199473 & KURTZ, LLP Zi C. Lin, SBN 236989 Richard I. Arshonsky, SBN 155624 225 South Lake Avenue, Suite 1400 Jason J. Jarvis, SBN 230158 Pasadena, California 91101 15303 Ventura Blvd., Suite 1650 (626) 577-9500 + Fax (626) 577-0813 Sherman Oaks, CA 91403 rsquire@garrett-tully.com (818) 382-3434 *° Fax (818) 382-3433 rarshonsky@laklawyers.com Attorneys for Defendants and Appellants RICHARD ERICKSON, WENDIE MALICK, RICHARDB. SCHRODER, and ANDREA D. SCHRODER 5230104 In The Supreme Court of California JAIME A. SCHER,etal., Plaintiffs and Respondents, Us. JOHN F. BURKE,et al., Defendants and Appellants. 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 REQUESTFOR JUDICIAL NOTICE IN SUPPORT OF ANSWER TO KERI MIKKELSON,ET AL.’S AMICUS BRIEF GARRETT & TULLY, P.C. LEVINSON ARSHONSKY *Ryan C. Squire, SBN 199473 & KURTZ, LLP Zi C. Lin, SBN 236989 Richard I. Arshonsky, SBN 155624 225 South Lake Avenue, Suite 1400 Jason J. Jarvis, SBN 230158 Pasadena, California 91101 15303 Ventura Blvd., Suite 1650 (626) 577-9500 ° Fax (626) 577-0813 Sherman Oaks, CA 91403 rsquire@garrett-tully.com (818) 382-3434 * Fax (818) 382-3433 rarshonsky@laklawyers.com Attorneys for Defendants and Appellants RICHARD ERICKSON, WENDIE MALICK, RICHARD B. SCHRODER, and ANDREA D. SCHRODER REQUEST FOR JUDICIAL NOTICE Defendants and appellants Richard Erickson, Wendie Malick, Richard B. Schroder, and Andrea D. Schroder, request that the Court take judicial notice, under Evidence Code sections 452, 453, and 459,of the California Assembly Committee on Planning and Land Use, Analysis of Senate Bill No. 504 (Legislative Sess.) July 20, 1971, attached hereto as Exhibit J. A supporting memorandumis attached hereto. DATED: September 19, 2016 Respectfully submitted, GARRETT & TULLY,P.C. Ryan C. Squire Zi C. Lin By: Cw Zi CAA Attorneys for Defendants and Appellants Richard Erickson, Wendie Malick, Andrea D. Schroder, and Richard B. Schroder MEMORANDUM I. The Court should take judicial notice of the legislative history of Civil Code section 1009. It is well-settled that a reviewing court may consider the legislative history of a statute to ascertain its meaning. (Bostick v. Flex Equipment Co., Inc. (2007) 147 Cal.App.4th 80, 108 [54 Cal.Rptr.3d 28] (concurring opn. of Croskey, J.) Because the construction of a statute presents a purely legal question that this Court reviews independently, it may take judicial notice of legislative history that was not introduced in the trial court. (Peart v. Ferro (2004) 119 Cal.App.4th 60, 81 [13 Cal.Rptr.3d 885], citing Evid. Code, §§ 452 & 459.) The plain language of Civil Code section 1009 provides that no use of non-coastal property can ripen into an imphed dedication post- 1972. There is no distinction between “recreational” and “non- recreational” use. This Court should take judicial notice of the California Assembly Committee on Planning and Land Use, Analysis of Senate Bill No. 504 (Legislative Sess.) July 20, 1971, attached hereto as Exhibit J, which discussed the “total abolition” of the doctrine of implied dedication of non-coastal property under section 1009. The Erickson AnswerBrief on the Merits, at pages 10, 22 and 23 mistakenly attributed the “total abolition” statement to another Assembly Committee on Planning and Land Use, Analysis of Senate Bill No. 504 document, also dated July 20, 1971, which was attached as Exhibit F to the Request for Judicial Notice in support of the Erickson Opening Brief. There are two Assembly documents dated July 20. The document attached as Exhibit F to the Erickson AOB is two pages, while the document attached as Exhibit J to this request for judicial notice is three pages, and discussed “total abolition” of the doctrine of implied dedication on page2. Accordingly, the Court should take judicial notice of the Assembly’s analysis of SB 504. DATED: September 19, 2016 Respectfully submitted, GARRETT & TULLY,P.C. Ryan C. Squire Zi C. Lin By: (7)Dn 21. An Attorneys for Defendants and Appellants Richard Erickson, Wendie Malick, Andrea D. Schroder, and Richard B. Schroder EXHIBIT J ASSEMBLY COMMITTEE ON PLANNING AND LAND USE PAUL PRIOLO, CHAIRMAN : July 20, 1971 ANALYSIS OF SB 504 (LAGOMARSINO) BACKGROUND: In 1970 the State Supreme Court in the Gion and DietzCase (2 Cal.3 d. 29 1970) held that beach front property improvedby and used by the public for many years; and a beach access roadused by the public for over 100 years although private property wasimpliedly dedicated to the public. The standard applied by the court to find implied publicdedication consists of five (5) years use by the public without theowner's consent and that no reasonable (emphasis supplied) effortwas made to keep the public from trespassing on such lands. Dicta within the case amplifying the concept of "reasonableeffort" has raised the concern of both individual and corporatelandholders in areas of the state which attract vacationers and recreationists. In allowing the public to use their land, propertyOwners fear they may be creating a right adverse to their interest®in favor of the public. As well, present licensing provisions areé not broad enough to cover all types of recreational uses. (8 00 ) 66 As a result of implied dedication, altematives of either issuing grant permits for use or total exclusion of the public fromprivate recreational land by fencing and patrolling have resulted. ,,Although the dicta was broad, the court did make the analogy that O the old doctrine normally applied to roads, but that modern urbanization defined beaches, and beach access corridors with equivalent U precision. - Zz Subtleties aside the State Chamber of Commerce and other E Supporters of the bill claim a potential of 8 to 10 million acres tu being closed to public use to prevent application of the implied 5 dedication doctrine. -, OSUMMARY: This bill declares as policy the encouragement of owners oft! private real property to make their lands available to the public for recreational purposes. Under current law property rights are =threatened and bills clouded if the policy is implemented. There—ysfore, the bill provides that regardless of present provisions of 1 ayregarding licensing and posting of consent by the owner of public . use, that no use by the public on privately owned land shall ever ripen to confer upon the public a vested right. COMMENT: The sources of this bill include the Agricultural Council of California, Cattlemen's Association, California Farm Bureau, California Forest Protection Association, California Wildlife Federation, California Chamber of Commerce. This bill is endorsed by the California Land Title Association, California Railroad Association, California Redwood Association, League of California Cities, C.S.A.C., Sierra Cascade Logging Conference, Southern California Rock Products Association, State Board of Forestry, and the Western Wood Products Association. LIS - 6b L E O N A o y SB 504 (Lagomarsino) Page 2 The bill is Opposed by the Sierra Club and thePlanning and Conservation League. DETAILED ISSUES RAISED: One major area which is not provided forin the bill's present form is the situation in which govern—ment has expended sums of money for capital improvements onprivate property either by mistake (such as survey errors, etc.)Or under an owner's acquiescence. Ags well, the effects of atotal abolition of doctrine on challenges against the govern-ment in quiet title actions is not clear. Although the doctrine of implied dedication is one ofPproscribing private property rights by operation of law, theeffect of ameliorating the harshness of the doctrine has onlyan indirect effect on the incentive to land owners to allowpublic use of their land. Even if the solution deletes thedoctrine rather than controlling it, good will ana publicrelations will remain the major factor in allowing the publicuse of private lands for recreational purposes. The contention that there are ample existing ways toavoid application of the doctrine while allowing the publicuse of lands is somewhat conclusionary. Existing law doesnot completely protect land owners from all the implicationsof Gion and Dietz. Therefore, either some modification ofexisting law or abolition of the doctrine is clearly required. The use of the implied dedication to control deceptivePractices in subdivision sales (i.e. such as promised roads,etc.) may be an incidental benefit of the doctrine. However,such practices are directly controlled by the Subdivision mMapAct, as well as criminal and civil fraud sanctions. Recallingthat implied dedication takes five (5) years to ripen it may beproblematic that a fraudulent scheme could run over that periodof time. The issue that practically speaking the prohibition onretroactive application of the doctrine will not have substantialeffect within a few years has some merit. It is true thatwithin a few years parties able to come forward to establishpublic rights will be severely limited due to age, etc. However,it must be kept in mind that in eliminating any doctrine whichinvolves vested rights, there cannot be direct retroactiveapplication under the constitution without compensation. Theinherent corollary of abolishing any vested right in the futureby operation of law is the abolishing of it retroactively as aMatter of fact given the passage of enough time. The issue that the elimination of the doctrine doesnot serve the public interest is a succinct statement of thevery question which the committee will be determining. The most salient point of contention is the final onethat the bill discriminates between public and private rights (8 00 ) 66 6- 19 17 L E G I S L A T I V E I N T E N T S E R V I C E wh y SB 504 (Lagomarsino) Page 3 acquired through the element of adversity. The practicaleffect of the issue is whether the public as a group ofindividuals could acquire an adverse easement as individualswhich they could not acquire as the "public". Because someaffirmative act is required to prevent adverse easements, theissue becomes whether some similar act should be required toprevent public dedication. PROPOSED QUESTIONS : Under the bill before committee what would be thepublic's rights ina $7 million road constructed one year afterthis bill goes into effect where part of the road was locatedOn private property five (5) years after construction? Have there been studies made to determine the impli-cation of completely removing the doctrine of implied dedication? (8 00 ) 66 6- 19 17 L E G I S L A T I V E I N T E N T S E R V I C E 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 | 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 S. Lake Ave., Suite 1400, Pasadena, California 91101. On September 19, 2016, I served an executed copy of the Request for Judicial Notice in Support of Answer to Keri Mikkelsonet al.'s Amicus Brief Pursuantto the court’s e-submissions procedures, a true and correct copy was uploaded throughtheir on-line system. 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, Rm. 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. I am “readily familiar” with the firm’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. Iam aware that on motion of a party served, service 1s presumed invalid if postal cancellation date or postage meter date is more than 1] day after 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 Superior Court of Los Angeles Hon. Malcolm Mackey, Dept. 55 111 No. Hill Street Los Angeles, CA 90012 June 8. Ailin, Esq. ALESHIRE & WYNDER, LLP 2361 Rosecrans Ave., Ste 475 El Segundo, CA 90245 Tel (810) 527-6660 * Fax (810) 582-7395 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 (810) 452-5977 + Fax (810) 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 5S. Gerstein, Esq. LAW OFFICES OF ROBERT 8S. GERSTEIN 723 Ocean Front Walk Venice, CA 90291 Telephone: (310) 820-1939 Facsimile: (310) 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 15303 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 under the laws of the State of California that the above is 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 September 19, 2016 at Pasadena, California. DELORISE CAMERON
