JAIME A. SCHER et al., Plaintiffs and Appellants,
JOHN F. BURKE et al., Defendants and Appellants.
Court Los Angeles County, Nos. BC415646, Ct.App. 2/3 B235892
Malcolm H. Mackey Judge
Offices of Robert S. Gerstein, Robert S. Gerstein; Law
Offices of Bennett Kerns and Bennett Kerns for Defendants and
Appellants John F. Burke, Germaine Burke and Bennett Kerns.
Levinson Arshonsky & Kurtz, Richard I. Arshonsky, Jason
J. Jarvis; Garrett & Tully, Ryan C. Squire, Zi C. Lin and
Motunrayo D. Akinmurele for Defendants and Appellants Richard
Erickson, Wendie Malick, Andrea D. Schroder and Richard B.
Ferguson Case Orr Paterson, Wendy C. Lascher and Joshua S.
Hopstone for Defendant and Appellant Gemma Marshall.
M. Schiff, Anthony L. Francois and Julio N. Colomba for
Pacific Legal Foundation, California Farm Bureau Federation
and California Cattlemen's Association as Amici Curiae on
behalf of Defendants and Appellants.
Cunningham & Treadwell, James H. Treadwell, Steven F.
Kuehl; Aleshire & Wynder and June S. Ailin for Plaintiffs
Michael T. Whittington; Miller Starr Regalia, Arthur F. Coon
and Kenneth R. Styles for Keri Mikkelson, Jerome Friesenhahn,
Bryan Bell, Alison Bell, Scott Hudlow, Kirstin Hudlow, Todd
Irvine, Kimberly Irvine, Terry Kloth, Margaret Kloth, John
Dover, Georgia Wages, Janice Lundy, Ronald Lundy and John
Farnsworth as Amici Curiae.
Gion v. City of Santa Cruz (1970) 2 Cal.3d 29, this
court held that private owners of certain coastal property
who allowed the public to use the property for recreational
purposes over a period of years thereby impliedly dedicated
property rights to the public. In response to that decision,
the Legislature enacted Civil Code section 1009, which limits
the circumstances in which courts may find implied dedication
of private coastal property. (Civ. Code, § 1009 (section
1009); see id., subds. (e)-(g).) The statute further
provides that “no use” of private noncoastal
property after the statute's 1972 effective date
ordinarily may give rise to “a vested right” in
the public to continue using the property permanently, unless
the property owner makes an express, irrevocable offer to
dedicate the property to public use. (Id., subd.
question in this case concerns the application of section
1009 to a claim that private owners of noncoastal property
have impliedly dedicated their land for use as a public road.
Plaintiffs argue that the restriction on implied dedication
in section 1009, subdivision (b) does not apply to property
used by the public for nonrecreational vehicle access, as
opposed to property used for recreational purposes. We agree
with the Court of Appeal that the statute draws no such
distinction, and we accordingly affirm its judgment.
Jaime Scher and Jane McAllister own land in the Topanga
Canyon area of Los Angeles County. They would like to access
their property by driving on two roadways that cross their
neighbors' land, rather than taking other, less
convenient routes to their property. Some of those neighbors
would prefer otherwise, however, and have blocked the
roadways with gates.
and McAllister sued. Among other things, they sought a
declaration that their neighbors (or their neighbors'
predecessors) had “acquiesced to the dedication”
of the routes as public roadways. The trial court agreed. As
relevant here, the court concluded that the neighbors or
their predecessors had impliedly offered to dedicate the
roadways to public use. First, the court found that an offer
to dedicate the roadways was “implied in fact, ”
based on several “Declarations and Grants of Easements,
” as well as certain maps prepared by the federal
government, which previously owned the land at issue. Second,
the court found that an offer to dedicate was “implied
in law, ” because the public had used the roadways
“for more than the period of prescription” of
five years. (See Gion v. City of Santa Cruz,
supra, 2 Cal.3d at p. 38 (Gion).) These
offers of dedication, the court continued, had been
“accepted by the public['s] use of the
trial court also considered whether section 1009 barred any
finding of implied dedication. The court concluded that
section 1009 is inapplicable because the land at issue is not
coastal property, and because “section 1009 does not
restrict the implied dedication of public roads for
Court of Appeal reversed. The court held that section 1009,
subdivision (b) unambiguously “bars all public
use, not just recreational use, from developing into an
implied public dedication.” In so holding, the court
disagreed with other cases that had described section 1009,
subdivision (b) as applying only to recreational uses.
(Hanshaw v. Long Valley Road Assn. (2004) 116
Cal.App.4th 471, 484-485 (Hanshaw); see also
Pulido v. Pereira (2015) 234 Cal.App.4th 1246, 1252
(Pulido); Bustillos v. Murphy (2002) 96
Cal.App.4th 1277, 1280-1281 (Bustillos).) Having
concluded that evidence of post-1972 use of the roadways was
inadmissible, and finding no other adequate evidentiary basis
for finding that the roadways had been impliedly dedicated to
public use, the Court of Appeal directed the trial court to
enter a declaratory judgment in favor of defendants.
granted review to resolve the disagreement among the Courts
of Appeal about whether section 1009, subdivision (b) applies