Friends of Hastain Trail v. Coldwater Development LLC

          APPEALS from a judgment and order of the Superior Court of Los Angeles County, No. BC469573, Yvette M. Palazuelos, Judge.

          Reversed with directions.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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         COUNSEL

         Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup, Sheldon H. Sloan, Wesley G. Beverlin and Raymond R. Barrera for Defendants and Appellants.

         Overton, Lyman & Prince and Stephen L. Jones for Plaintiffs and Respondents.

         Blank Rome; Finestone & Richter; Law Offices of Eric F. Edmunds, Jr., and Eric F. Edmunds, Jr., for Intervener and Respondent.

         Opinion by Chaney, J., with Rothschild, P. J., and Chaney, J., concurring. Johnson, J., Dissenting.

          OPINION

          [205 Cal.Rptr.3d 274] CHANEY, J.

          Defendants Lydda Lud, LLC (Lydda Lud), and Coldwater Development LLC (Coldwater) appeal from a judgment declaring a public trail easement was established by public dedication through defendants' property for hiking, jogging, and dog walking. Defendants contend the trial court erred in finding a public dedication of such an easement. We conclude no substantial evidence supports the court's finding that the public acquired an easement through defendants' property by implied dedication as provided for under Gion v. City of Santa Cruz (1970) 2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29 [84 Cal.Rptr. 162, 465 P.2d 50] ( Gion ) (consolidated with Dietz v. King ). We therefore reverse the judgment and the subsequent award of attorney fees to plaintiffs.

         FACTUAL AND PROCEDURAL SUMMARY

         A. The Peak Trail

         In the early part of the last century, the Beverly Hills and Los Angeles fire departments constructed and maintained fire roads in the cities' wilderness areas to facilitate prevention and suppression of wildfires. In mountainous

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areas the fire roads were originally situated atop ridgelines, but by 1940 new roads had been constructed at lower elevations for ease of use and to mitigate erosion. The new fire roads ran near to and roughly parallel with the ridgelines, and the original roads were abandoned.

         This litigation involves two parallel fire roads, an older one and its newer replacement. The older road climbed to and ran along an approximately 400-foot-long ridgeline running roughly north and south in a steep, narrow, canyon-type area of chaparral and oakwood in Los Angeles, approximately half a mile west of Coldwater Canyon Drive and a mile east of Lake Drive. By 1940, this road had been abandoned in favor of a new fire road that ran immediately to the west of the ridgeline and roughly parallel to it, but at a lesser elevation. Some hikers continued to use the abandoned road, and it came to be called the " Peak Trail" by some because it led to a high point in the terrain that afforded a 360 degree view of Los Angeles. A permanent survey marker was installed at the summit of the Peak Trail in 1952, becoming a hiking destination. The Peak Trail was situated wholly on private property.

         B. The Hastain/Coldwater Trail

         By 1940, the older fire road had been replaced by the " Hastain Fire Road," which began at Coldwater Canyon Drive and ran south southwest for a time before meandering generally west to Lake Drive, like a backwards lazy L. The northeastern half of the Hastain Fire Road ran through undeveloped private property, some of it owned by defendants' predecessors, and the southwestern half ran through Franklin Canyon Park, which is public property.

         The Hastain Fire Road was used by hikers, bicyclists, equestrians and dog walkers, some of whom called it the " Hastain Trail" and some the " Coldwater Trail." These users could access the road either [205 Cal.Rptr.3d 275] from the northeast at Coldwater Canyon Drive or southwest at Lake Drive.

         Before 2004, a hiker on the Hastain Trail could transition to the roughly parallel Peak Trail by climbing a moderately steep embankment. In 2004, grading reduced this climb, making the Peak Trail more accessible.

         C. Development Along the Trails

         In the early 1990's, residential construction began where the Hastain Fire Road started at Coldwater Canyon Drive and moved southward, roughly following the road. By the time of trial, approximately 17 private residences existed in a gated community along the road, and that portion of it taken over

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by the development was rededicated as Beverly Ridge Terrace, a private road. This development also eliminated the Peak Trail north of its summit, such that by the time of trial both the Hastain Fire Road and Peak Trail were roughly half their original lengths, their northern halves having been either rededicated or eliminated. Both now began independently at the southern border of the Beverly Ridge community, proceeded in parallel roughly southwestward, and " joined" (via an embankment) after roughly 230 feet, after which the Hastain Fire Road continued generally southwestward to Franklin Canyon Park and on to Lake Drive.

         The next four lots running south from the Beverly Ridge community were purchased by Coldwater in 2011, and the two south from those were purchased by Lydda Lud in 2006. Franklin Canyon Park begins after the southernmost of these six lots, which remain undeveloped except for the previously mentioned 2004 grading. The Hastain Fire Road runs through these lots and through Franklin Canyon Park to Lake Drive, with a momentary emergence from the park into a noncontiguous lot owned by Lydda Lud. Mohamed Hadid, the managing member of both Coldwater and Lydda Lud, planned to build large homes on the parcels, believing this development too would result in relocation and rededication of a portion of the Hastain Fire Road. Hadid obtained the required permits and, in 2011, recommenced grading.

         D. Litigation

         Plaintiff Ellen Scott, who often used the Hastain Trail, observed the 2011 grading activity on defendants' property and organized six or seven fellow users into an association called the " Friends of the Hastain Trail," the purpose of which was to prove the trail had been dedicated to the public by operation of law as a result of its use by the public for a prescriptive period of at least five continuous years prior to March 1972.^[1] Scott created a Web site and sent e-mails and distributed fliers seeking " legacy hikers," i.e., those who had hiked the trail prior to 1972.

         In September 2011, Scott and the Friends of the Hastain Trail filed a complaint to quiet title to a public recreational trail easement through defendants' property. They alleged the Hastain Trail had been impliedly dedicated to the public as a result of 50 years of public use, including five years of open and continuous use immediately prior to March 1972. Plaintiffs sought injunctive relief preventing defendants from blocking or eliminating the trail.

         In April 2012, the Mountains Recreation and Conservation Authority (the MRCA), a partnership between the Santa Monica Mountains Conservancy

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and two park districts, joined the litigation by filing a complaint [205 Cal.Rptr.3d 276] in intervention. We will refer to Scott, the Friends of the Hastain Trail and the MRCA as " plaintiffs."

         Defendants answered the complaints and asserted affirmative defenses, including laches, unclean hands, waiver, and the " Lack of a Basis for Injunctive Relief." According to defendants, the Hastain Trail was actually a fire road of the sort that is routinely relocated or rededicated to accommodate land development. Defendants disputed the existence of the Peak Trail entirely, and alleged the easement plaintiffs sought would render their property " undevelopable" and " utterly useless."

         A court trial took place over eight days, at the outset of which the trial judge, counsel for both sides, Hadid, and two park rangers walked and drove the length of the trail from Franklin Canyon Park to the survey marker at the summit of the Peak Trail.

         1. Plaintiffs' Evidence

         a. The Trails

         Plaintiffs showed the area surrounding the Hastain and Peak Trails is unimproved and scenic, and has long been used by hikers and others. At trial, Brian Bradshaw, plaintiffs' expert on aerial photography, testified aerial photos taken from 1960 to 1971 showed the trails to be well established. Bradshaw testified, " the main trail is the Hastain Trail which has also been referred to as a fire road." Paul Edelman, who worked for MRCA, testified MRCA patrolled and maintained the resources inside Franklin Canyon Park, which he described as " world-class." He characterized the Hastain Trail as one of the park's main trails. Although the summit (with its survey marker) was on private land (and not on the park map), Edelman believed it was a key resource because it allowed for a longer hike to a higher elevation with a good view. MRCA's rangers patrolled the trails, and MRCA felt obligated to protect the summit, which hikers had long visited. Edelman had been on all parts of the trails at various times, including in the fall of 1972, and remembered yellow posts at the Hastain Trail trailhead connected by a chain or cable to keep cars out. He thought the barrier had been installed by the fire department and indicated the trail was a public fire road. In 2011, he became aware that Hadid had fenced off the trail.

         b. Hastain Trail Legacy Hikers

         Plaintiffs identified the prescriptive time frame as March 1967 to March 1972, during which the Hastain Trail was used by seven legacy hikers who

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testified at trial: James Goller, Larry Harrow, Joan Carl, Frederic Harris, Carole Hemingway, Cynthia Foran, and Richard Saul.^[2]

         Goller testified he hiked the Hastain Trail on Sundays approximately 40 times per year from 1967 (and prior), when he was 10 years old, to 1972 (and beyond), at first with his father, then six times with his 12-member Cub Scout den, and later, as a teenager, with friends.

         Harrow hiked the trail from approximately 1963 to recently. During the prescriptive period, he hiked the trail approximately every other weekend in 1967 and 1968, and from 1970 to 1972, sometimes with friends and sometimes by himself.

         Carl, a sculptor, testified she hiked the trail with her dog in the mornings or late afternoons from October to April beginning [205 Cal.Rptr.3d 277] in 1968. She would start from Coldwater Canyon Drive and hike southward, usually turning around after passing the peak, using the trail " [s]ometimes twice a week, sometimes twice a month. Sometimes maybe not at all." She eschewed hiking from May to September to avoid heat and rattlesnakes. Carl believed the trail was public property because it was " totally open," with a garbage can for dog waste. Until shortly before trial she thought it was called the " Coldwater Trail."

         Harris and Hemingway hiked the trail together four or five times a week in the late afternoon or early evening during the summers of 1970 and 1971, plus an occasional Thanksgiving or Christmas holiday during those years.^[3] Harris would park his car at the trailhead on Lake Drive (west of defendants' property) and hike a circuit of the trail in two different directions. He testified the Hastain Trail " dumped out" on Coldwater Canyon Drive (north and east of defendants' property). An average hike lasted from one to two hours.

         Foran hiked the trail six or seven times in 1971, when she was 11 years old, half the time with an older brother and the other half with some friends.

         Saul hiked the trail once in 1971, alone.

         The legacy hikers saw others on the Hastain Trail. Goller testified he saw eight to 20 people over the course of each of his hikes. Harrow saw between two and 12 people on the trail every time he was on it. Carl occasionally saw

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others in one's and two's, sometimes in groups of two to four, including equestrians and dog walkers. Harris and Hemingway always saw six to 12 cars parked at the trailhead on Lake Drive, and between six and 20 people on the trail during their hikes. Foran would see one or two other hikers during each of her seven hikes. Saul saw no one else during his one time on the trail.

         Plaintiffs estimated the trail took about two hours to hike. Assuming a hiking day is six hours long (because most people do not hike in the midday sun), plaintiffs calculated that approximately 12 people used the trail per day, which amounted to approximately 4,000 per year.

         c. Peak Trail Legacy Hikers

         Only Goller, Harris, Hemingway and Foran testified they used the Peak Trail during the relevant time period. Goller used it approximately 40 Sundays a year from 1967 to 1972 (and before and after that time), Harris and Hemingway used the trail once or twice a week in the summers of 1970 and 1971, and Foran used it seven times in 1971.

         Goller testified the Peak Trail was " really steep," " very narrow," " arduous," and a " challenge." Harris testified the trail was " pretty treacherous," and Hemingway said it was " steep, had cliffs on both sides," and Harris had to " push" her to climb it. Foran testified the Peak Trail could not be reached on a minibike because the embankment between it and the Hastain Trail was too steep.

         No one testified to seeing anyone else specifically on the Peak Trail. Harris testified he saw people " all over the trail," which could mean both the Hastain and Peak Trails, but the context indicates he meant the " trail" from Lake Drive to Coldwater Canyon, which is the Hastain Trail. He testified about the Peak Trail separately, and never said he saw anyone on it.

          [205 Cal.Rptr.3d 278] Only Harris testified to using either of the trails on any weekday, always accompanied by Hemingway.

         d. Extrapolated Usage

         Because the legacy hikers testified they almost always saw others on the Hastain Trail, from two to possibly a dozen or more each time, the trial court inferred many more must also have used both the Hastain and Peak Trails. " The average was about three to four other hikers," the court found, which " [w]hen extrapolated over the hours of the day and days of the year [amounted] to thousands of hikers over the relevant period."

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         2. Defendants' Evidence

         For the defense, Robert Pope, an expert on aerial photography, testified he had examined three-dimensional photographs depicting the Hastain Fire Road and its surrounding area beginning in the mid-1920's, but found no definitive evidence the Peak Trail ever existed. He did not dispute, however, that a variety of people could have hiked to the peak between 1967 and 1972. Frank Haselton, a viewshed analysis expert, testified the Hastain Trail was visible from some public vantage points but not from others. Ken Shank, a surveying and grading expert who had prepared defendants' building plans, testified homes could not be constructed on defendants' lots if the requested public easement was established, but it might be possible to reroute the Hastain Trail to make room for the construction. He testified defendants' building plans called for relocation of the Hastain Fire Road.

         Hadid testified he had been a global real estate developer for 40 years. He first visited the subject property in 2001 or 2002 and was aware that a fire road passed through it but believed it could be relocated and rededicated. Before buying the property, Hadid inspected the land and performed a title check to discover if any easement or right-of-way existed, finding none. If there had been an easement or restriction he would not have purchased the property.

         3. Statement of Decision and Judgment

         In October 2012, the trial court issued a tentative decision and judgment in favor of plaintiffs. Plaintiffs thereafter filed a proposed statement of decision, to which defendants objected on the grounds, among others, that it failed to address (1) " whether the court made an equitable balancing of the hardship on the Property Owners that would be imposed by granting the proposed implied easement on Defendants' property" and (2) " whether the court is required to or even attempted to fashion the proposed easement as narrowly as possible to avoid prejudice to the [Defendants] with regards to the scope and location of the proposed easement on Defendants' property relative to the Property Owner's ability to develop his property as planned and to evaluate any hardship and/or balancing hardships between the parties." In support of the objections, Shank, the surveying and grading expert, proposed that an alternative easement be created, one that allowed for residential development of the area while preserving the public's hiking experience.

         On April 17, 2013, the court overruled most of defendants' objections and filed its judgment and amended statement of decision.

         The judgment created an easement designated as the Hastain Trail but which we will call the " Judgment Trail" to distinguish it from the historical

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Hastain Trail. The Judgment Trail is set out in three segments. The first, tracking the Peak Trail, begins at the summit and proceeds [205 Cal.Rptr.3d 279] southwestward for 233.72 feet, where it meets the Hastain Fire Road, and thence atop the fire road for 620.86 feet to the border between Coldwater Canyon's and Lydda Lud's parcels. The easement is described in metes and bounds, as follows: " COMMENCING AT THE NORTHWEST CORNER OF [LOT 1; defendants' northernmost parcel], THENCE ALONG THE NORTHERLY LINE OF LOT 1, SOUTH 88° 22'30 EAST, 674.66 FEET TO THE POINT OF BEGINNING, SAID POINT BEING THE CENTERLINE OF A 5.00 FOOT WIDE TRAIL, KNOWN AS THE HASTAIN TRAIL, THENCE ALONG THE HASTAIN TRAIL BEING 5.00 FEET WIDE AND LYING 2.50 FEET ON EACH SIDE OF THE FOLLOWING DESCRIBED CENTERLINE THE FOLLOWING COURSES:

         " 1ST SOUTH 0.4° 53'25" WEST, 16.24 FEET THENCE;

         " 2ND SOUTH 0.3° 15'56" EAST, 19.22 FEET THENCE;

         " 3RD SOUTH 16° 29'43" WEST, 71.72 FEET THENCE;

         " 4TH SOUTH 20° 21'13" WEST, 71.72 FEET THENCE;

         " 5TH SOUTH 11° 45'02" WEST, 54.82 FEET TO A POINT, SAID POINT HEREINAFTER REFERRED TO AS POINT 'A'. SAID POINT BEING THE TERMINATION OF THE 5.00 FOOT WIDE TRAIL AND THE BEGINNING OF THE 15.00 FOOT WIDE TRAIL;

         " THENCE, CONTINUING ALONG HASTAIN TRAIL BEING 15.00 FEET WIDE AND LYING 7.50 FEET ON EACH SIDE OF THE FOLLOWING DESCRIBED CENTERLINE THE FOLLOWING COURSES:

         " 6TH SOUTH 1.5° 46'35" WEST, 138.25 FEET THENCE;

         " 7TH SOUTH 31° 07'10" EAST, 99.68 FEET THENCE;

         " 8TH SOUTH 38° 04'10" WEST, 98.16 FEET THENCE;

         " 9TH SOUTH 46° 45'46" WEST, 92.28 FEET THENCE;

         " 10TH SOUTH 49° 09'09" WEST, 15.98 FEET THENCE;

         " 11TH SOUTH 18° 57'00" WEST, 15.45 FEET THENCE;

         " 12TH SOUTH 08° 44'01" EAST, 59.10 FEET THENCE;

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         " 13TH SOUTH 03° 49'45" EAST, 95.96 FEET ...