Coldwater

Filed 7/27/

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

FRIENDS OF THE HASTAIN TRAIL B249841, B251814

et al., (Los Angeles County Plaintiffs and Respondents, Super. Ct. No. BC469573)

v.

COLDWATER DEVELOPMENT LLC

et al.,

Defendants and Appellants;

MOUNTAINS RECREATION AND

CONSERVATION AUTHORITY,

Intervener and Respondent.

APPEALS from a judgment and order of the Superior Court of Los Angeles County, Yvette M. Palazuelos, Judge. Reversed with directions. 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. —————————— 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…

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 [ 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 *1017 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…

Concurring.—I would make one further point. Although defendants may have raised equitable arguments and proposed their “Alternative Trail Easement” too late in the proceedings below, the court was mistaken when it expressed its belief that it did not have the power to consider equitable arguments in deciding where to locate the easement. Because the causes of action and relief plaintiffs prayed for were equitable, the court had the power to consider an equitable resolution—defendants’ proposed Alternative Trail Easement.

In determining whether an achon is legal or equitable, we look at the substance of the complaint, “i.e., to the nature of the right involved and the remedy sought.” (3 Witkin, Cal. Procedure (5th ed. 2008) Achons, § 123, p. 202.) Here, plaintiffs alleged causes of action for quiet title and requested injunctive relief. In particular, they sought a judicial determination that defendants’ predecessors had impliedly dedicated a trail for public recreational use, “as well as a determination of the location and dimensions of the public easement.” They also sought injunctive relief to prevent defendants from interfering with the public’s use of the trail. Plaintiffs…

Concurring.—I concur with the opinion in order to express an individual view on two issues.

First, even if substantial use of a fire road could ripen into public dedication of the servient tenement, no substantial evidence supports the trial court’s finding that the “Hastain Fire Road” experienced such use.

*1039 ‘“[W]here an intent to dedicate is implied as a legal fiction from the nature of public usage, the caselaw requires a high standard of usage, lest private property rights be too easily diminished.” (Hanshaw v. Long Valley Road Assn. (2004) 116 Cal.App.4th 471, 482 [ 11 Cal.Rptr.3d 357 ].) ‘“The use must be substantial, diverse, and sufficient, considering all the circumstances, to convey to the owner notice that the public is using the passage as if it had a right so to do.” (Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810, 826, fn. 7 [ 93 Cal.Rptr.2d 193 ].) Factors to consider include the nature of the property, its physical condition, the owner’s knowledge (actual or imputed) of public use of the property, and the frequency and nature of the use. (See, e.g., Union Transp. Co. v. Sacramento County (1954) 42 Cal.2d 235, 241 [ 267 P.2d 10 ] [‘“general…

Dissenhng.—I respectfully dissent.

The majority opinion not only distorts but also changes the law of implied dedication to reverse the trial court’s judgment in favor of Friends of the Hastain Trail and Mountains Recreahon and Conservation Authority (MRCA) (collectively, Friends). The opinion bases its conclusions on factual assumptions not supported by the record, decides issues Coldwater Development *1042 LLC and Lydda Lud, LLC (collectively, Hadid), did not raise at trial or on appeal, and gets our standard of review backward, all to reach a result precluded by proper application of established law and unsupported by the trial court’s findings of fact. The result of the majority’s revisionist approach to this case is that much of the “Hastain Trail,” which has been used by the public for more than 50 years and which I believe the trial court correctly found was impliedly dedicated to the public at least 44 years ago, will now be lost forever to public use.

In Gion v. City of Santa Cruz (1970) 2 Cal.3d 29 [ 84 Cal.Rptr. 162 , 465 P.2d 50 ] (Gion), the California Supreme Court concluded that an implied dedication of private land (three parcels of land on a shoreline, and a…