Mikkelsens v. Hansens, 011019 CAAPP5, F072990

Docket Nº:F072990, F073783
Opinion Judge:DETJEN, ACTING P.J.
Party Name:KERI MIKKELSEN et al., Plaintiffs, Cross-defendants and Respondents, v. MICHAEL HANSEN et al., Defendants, Cross-complainants and Appellants. KERI MIKKELSEN et al., Plaintiffs and Respondents, v. MICHAEL HANSEN et al., Defendants and Appellants.
Attorney:Darling & Wilson and Joshua G. Wilson; Law Office of Ray T. Mullen and Ray T. Mullen for Defendants, Cross-complainants and Appellants and Defendants and Appellants. Miller Starr Regalia, Arthur F. Coon and Kenneth R. Styles; Michael T. Whittington for Plaintiffs, Cross-defendants and Respondents...
Judge Panel:WE CONCUR: PEÑA, J., SNAUFFER, J.
Case Date:January 10, 2019
Court:California Court of Appeals
 
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KERI MIKKELSEN et al., Plaintiffs, Cross-defendants and Respondents,

v.

MICHAEL HANSEN et al., Defendants, Cross-complainants and Appellants.

KERI MIKKELSEN et al., Plaintiffs and Respondents,

v.

MICHAEL HANSEN et al., Defendants and Appellants.

F072990, F073783

California Court of Appeals, Fifth District

January 10, 2019

APPEAL from a judgment of the Superior Court of Kern County. No. S-1500-CV-280077 David R. Lampe, Judge.

Darling & Wilson and Joshua G. Wilson; Law Office of Ray T. Mullen and Ray T. Mullen for Defendants, Cross-complainants and Appellants and Defendants and Appellants.

Miller Starr Regalia, Arthur F. Coon and Kenneth R. Styles; Michael T. Whittington for Plaintiffs, Cross-defendants and Respondents and Plaintiffs and Respondents.

OPINION

DETJEN, ACTING P.J.

BACKGROUND

This is a consolidated appeal from a judgment and postjudgment order of the Kern County Superior Court.

Two cul-de-sacs in two separate Bakersfield subdivisions-Amberton and Stockdale Estates-are connected by a pedestrian path. The path's southern Amberton segment lies on a tract that was recorded in 1977 and previously owned and developed by Tenneco Realty Development Corporation (Tenneco). The path's northern Stockdale Estates segment lies on a tract that was recorded in 1981 and also previously owned and developed by Tenneco. In 1978, Tenneco expressly offered to dedicate the Amberton segment for public use. This offer was formally accepted by the City of Bakersfield. By contrast, there was neither an express offer to dedicate the Stockdale Estates segment nor a formal acceptance thereof.

Currently, the property on which the path's Stockdale Estates segment lies is owned by defendants/appellants Dan D. Hansen and Michael Hansen.1 In June 2013, defendants erected a wall across the Stockdale Estates segment, obstructing access between the subdivisions. Plaintiffs/respondents, a group of current and former Amberton residents, 2 asked the superior court to enjoin defendants from impeding public use of the path. They argued a common law dedication of the Stockdale Estates segment was both implied in fact and implied in law. Defendants countered Civil Code section 1009, subdivision (b), 3 prohibited both types of implied dedications.

Following a bench trial, the superior court sided with plaintiffs, issued a permanent injunction, and instructed defendants to remove the wall. The court found an implied-in-fact dedication based on evidence Tenneco “intended to dedicate the [Stockdale Estates segment] as a public pedestrian easement in the same manner as it did the Amberton [segment]” and “people were regularly traversing... the Stockdale Estates [segment] at the same time... the... Amberton [segment] was established and continuously thereafter.” The court also found an implied-in-law dedication based on evidence of “decades of... continuous public use.” Regarding defendants' claim, the court concluded section 1009, subdivision (b), “is applicable only to recreational use” or, “if applicable at all, may limit an implied-in-law determination, but not an implied-in-fact determination which depends upon a finding of the intent of the owner.” After entry of judgment, plaintiffs moved for attorneys' fees pursuant to Code of Civil Procedure section 1021.5. The court granted the motion and awarded $75, 000.

During the pendency of this appeal, the California Supreme Court ruled section 1009, subdivision (b), prohibits “reliance on post-1972 public use to support a claim of implied dedication” (Scher v. Burke (2017) 3 Cal.5th 136, 147 (Scher)) and “does not distinguish between recreational use and nonrecreational use” (id. at p. 144).

The parties agree Scher abrogated the superior court's finding of an implied-in-law dedication. However, plaintiffs assert the judgment must be upheld because section 1009, subdivision (b), in general, does not bar implied-in-fact dedications of private noncoastal property. Defendants contend otherwise. For the reasons set forth below, we side with defendants and reverse both the judgment and the postjudgment order awarding plaintiffs attorneys' fees.4

DISCUSSION

I. Section 1009, subdivision (b), generally prohibits implied-in-fact dedications of private noncoastal property.

a. Relevant law.

i. Common law dedications.

“A ‘dedication' is an uncompensated transfer of an interest in private property to the public....” (Friends of Hastain Trail v. Coldwater Development LLC (2016) 1 Cal.App.5th 1013, 1027; accord, Scher, supra, 3 Cal.5th at p. 141.) “Dedications may occur pursuant to statute or the common law.” (Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810, 820 (Blasius).)

“Under the common law, a dedication may be made either expressly or by implication.” (Scher, supra, 3 Cal.5th at p. 141.) “Express dedication arises where the owner's intent to dedicate is manifested in the overt acts of the owner, e.g., by execution of a deed. An implied dedication arises when the evidence supports an attribution of intent to dedicate without the presence of such acts.” (Blasius, supra, 78 Cal.App.4th at p. 821.) “Common law dedication, whether express or implied, requires both an offer of dedication and an acceptance of that offer by the public.” (Scher, supra, at p. 141; see County of Inyo v. Given (1920) 183 Cal. 415, 419 (Given) [“Dedication is the joint effect of an offer by the owner to dedicate land and an acceptance of such offer.”].) “A dedication without acceptance is, in law, merely an offer to dedicate, and such offer does not impose any burdens nor confer any rights, unless there is an acceptance. The rule therefore is, that acceptance on the part of the public is necessary to a valid dedication....” (Given, supra, at pp. 418-419.) “The acceptance may be actual or implied. It is actual when formal acceptance is made by the proper authorities, and implied, when a use has been made of the property by the public for such a length of time as will evidence an intention to accept the dedication.” (Id. at p. 418; accord, id. at p. 420 [“An acceptance must be had either by user or by some formal act.”].)

“An implied in fact dedication is to be distinguished from a dedication implied in law.”...

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