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Dannemeyer Family Partnership v. City of Fullerton

December 8, 2010

DANNEMEYER FAMILY PARTNERSHIP, PLAINTIFF AND APPELLANT,
v.
CITY OF FULLERTON, DEFENDANT AND RESPONDENT.



Appeal from a judgment of the Superior Court of Orange County, David T. McEachen, Judge. Affirmed. (Super. Ct. No. 30-2008-00107504)

The opinion of the court was delivered by: O'leary, Acting P. J.

Dannemeyer Family Partnership v. City of Fullerton CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

The Dannemeyer Family Partnership owns real property that is the residence of its general partner, William E. Dannemeyer (for convenience the appellant is hereafter referred to in the masculine singular as "Dannemeyer"), located in the City of Fullerton (the City). Dannemeyer sued the City to compel it to pave a 700-foot unimproved portion of an alley abutting his property and to remove various obstructions from the alley. The trial court granted the City's motion for summary judgment finding as a matter of law the City had no duty to improve and/or pave the alley or to remove any obstructions therein. The court also awarded the City its defense costs under Code of Civil Procedure section 1038. On appeal Dannemeyer raises numerous contentions, none of which have merit.

Original Complaint

Dannemeyer's original complaint filed in June 2008 contained three causes of action titled as follows: (1) "petition for writ of mandate to compel construction and paving of unpaved portion of public alley . . . and for damages"; (2) "complaint for preliminary and permanent injunctions and damages . . . "; and (3) "petition for writ of prohibition to prohibit the entire staff of the City . . . from any involvement with improving and paving this 700 feet of public alley by the appointment of a private engineering firm selected by the court to supervise the work of improvement based on their numerous breaches of the law, bias, prejudice and discrimination against petitioner which prevent petitioner from enjoying equal protection of the law."

Dannemeyer's complaint alleged that in 1921, the City accepted the subdivision map for tract No. 167. The 1921 map was attached as an exhibit to the complaint. Tract No. 167 included parcel No. 24, the parcel that would eventually be further subdivided to include Dannemeyer's lot (designated parcel No. 20 on another map attached to Dannemeyer's complaint), which he bought in 1964 and on which he built his residence. The original parcel No. 24 was one of five original parcels on the east side of north Grandview Avenue, a street that ends at West Fern Drive to the north, behind which (i.e., on the east side of the five lots) the 1921 tract map showed a 3,000 foot strip designated as "alley." The 1921 tract map showed two other lots on the opposite side of the area designated as "alley." Over the years the area designated as "alley" to the north and south of the original parcel No. 24 were improved and paved. But the 700-foot strip behind parcel No. 24 (and hence Dannemeyer's property), has always remained unimproved. (For convenience only, and to track the nomenclature used in the briefs, we will generally refer to this unimproved strip as the "unimproved alley.")

Dannemeyer alleged that upon acceptance of the tract map in 1921, the City became obligated to improve and maintain all streets and alleys shown thereon. The City failed to improve the remaining 700 feet originally designated as "alley" below his property. Dannemeyer paid $13,000 to a private engineering firm to prepare engineering specifications and a cost estimate for paving the remaining 700 feet, and the City refused to reimburse him. The private engineer estimated it would cost $252,000 to improve and pave the 700-foot alley strip; a private contractor gave Dannemeyer a bid of $288,000 for the work. (In his opposition to the City's summary judgment motion, Dannemeyer attached an estimate he obtained from the City indicating the work would cost approximately $813,000.)

Dannemeyer alleged there were now 40 parcels abutting the full 3,000 foot alley, 27 of which used the alley for daily access to their garage or home. Dannemeyer had recently constructed a 35-foot-by-35-foot asphalt parking pad adjacent to the unimproved alley to park his 28-foot recreational vehicle and his 19-foot boat. The complaint attached as exhibits various notices the City had served on Dannemeyer's contractor in early 2008 regarding damage to both the paved and unimproved portions of the alley as a result of this work, requiring the unimproved part of the alley be restored to its original slope and condition to ensure proper drainage and requiring the contractor to obtain necessary encroachment permits for the parking area. But the narrow width of the unimproved alley (about eight feet) and the presence of utility poles, made it difficult to maneuver his large vehicles through the unimproved alley to park them on the pad. Additionally, the City had installed a storm drain in the unimproved alley with an intake pipe and header that further impeded Dannemeyer's passage. Dannemeyer alleged he also periodically had workers use the unimproved alley to access the lower part of his property--for example about twice a year he had a roto-rooter truck access his sewer line from the unimproved alley, and sometimes his gardeners parked in the unimproved alley to load debris from tree trimming, rather than carrying uphill and across his property to his driveway on Grandview Avenue. Dannemeyer alleged he had a legal right to use the alley "in a paved status" and the City's failure to pave the unimproved part of the alley violated equal protection clauses of the state and federal constitutions.

Dannemeyer's first cause of action sought issuance of a writ of mandate ordering the City to pave the unimproved alley. He also sought reimbursement of his engineering costs, damages for his lack of access through the unimproved alley, attorney fees, and other costs.

In his second cause of action, Dannemeyer alleged the City had placed various obstructions in the unimproved alley. The obstructions included placing a "Dead End" sign at the entrance to the paved portion of the alley off of the public street, which Dannemeyer alleged improperly told members of the public who might want to drive the entire 3,000 foot length of the alley "'you are not welcome in this City to use our Public Alleys, go some place else.'" The City had placed a chain across the unimproved portion of the alley. It had also installed flood control devices in the unimproved portion of the alley (a drain and intake pipe). Dannemeyer alleged he had a right to travel the entire length of the alley and the various obstructions violated his constitutional rights and violated Vehicle Code section 21102.1. He sought an injunction compelling the City to remove the various obstructions.

Dannemeyer's third cause of action sought a judgment declaring the City's staff be prohibited from participating in improving the alley because they had demonstrated bias against Dannemeyer. He requested the City be ordered to contract with a private contractors to improve and pave the unimproved alley.

After the City's demurrer to the original complaint was sustained with leave to amend, Dannemeyer filed an amended complaint, largely the same. The first cause of action, largely mirrored the second cause of action from the original complaint. Dannemeyer alleged obstructions placed near or in the alley encroached on the unimproved alley. He sought a mandatory injunction compelling the City to remove the obstructions. Dannemeyer's second cause of action sought issuance of a writ of mandate ordering the City to pave the unimproved alley, reimbursement to Dannemeyer of his engineering costs, damages for his lack of access through the unimproved alley, attorney fees, and other costs. The complaint's third cause of action sought an injunction prohibiting City staff from participating in improving the alley and directing the City to retain private contractors to pave the alley.

The City filed a demurrer to the first amended complaint. The court sustained the demurrer as to the first and third causes of action, concluding the second cause of action encompassed what Dannemeyer was trying to do, "pave it and have the obstructions removed."

City's Summary Judgment Motion

The City filed a motion for summary judgment on the grounds that as a matter of law it had no duty to improve the alley.*fn1 The City's separate statement of undisputed facts was supported by a declaration from the City Engineer, Donald Hoppe. The City accepted the tract map for tract No. 167 in 1921. The tract map depicts an area marked "alley" running north south to the east of North Grandview Avenue. At the time, the entire area was largely undeveloped and the alley was completely unimproved. After acceptance of the tract map, the area was developed with residences. The northern part of the alley (i.e., north of the 700 feet Dannemeyer is complaining about) was paved by the developer, not the City, as part of the development of the homes. The properties adjacent to northern paved portion of the alley have their garages with entrances on the alley and the paving was done to permit vehicular access to the garages. The lots along the portion of the alley that remained unimproved do not have, and never have had, rear or side entrances that are accessed through the alley. Those lots (including Dannemeyer's) all took their access from the public streets.

Hoppe explained the City's custom and practice with respect to the improvement of rights-of-way, including alleys, was that upon acceptance of a right-of-way, it would not be improved unless needed for vehicular access by the public. Since its acceptance by the City, the unimproved portion of the alley has not been publicly maintained and open to the use of the public for purposes of vehicular travel. Since its acceptance by the City, the unimproved portion of the alley has not been improved, designed, or ordinarily used for vehicular travel. All properties abutting the 700-foot unimproved portion of the alley had ...


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