Mikkelsen v. Hansen

242 Cal. Rptr. 3d 304, 31 Cal. App. 5th 170
CourtCalifornia Court of Appeal, 5th District
DecidedJanuary 10, 2019
DocketF072990; F073783
StatusPublished
Cited by9 cases

This text of 242 Cal. Rptr. 3d 304 (Mikkelsen v. Hansen) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mikkelsen v. Hansen, 242 Cal. Rptr. 3d 304, 31 Cal. App. 5th 170 (Cal. Ct. App. 2019).

Opinion

DETJEN, Acting P.J.

*174BACKGROUND

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 *307Stockdale 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'

*175claim, 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, 218 Cal.Rptr.3d 643, 395 P.3d 680 ( Scher ) ) and "does not distinguish between recreational use and nonrecreational use" ( id . at p. 144, 218 Cal.Rptr.3d 643, 395 P.3d 680 ).

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 *308property to the public ...." ( Friends of Hastain Trail v. Coldwater Development LLC (2016) 1 Cal.App.5th 1013, 1027, 205 Cal.Rptr.3d 270 ; accord, Scher , supra , 3 Cal.5th at p. 141, 218 Cal.Rptr.3d 643, 395 P.3d 680.) "Dedications may occur pursuant to statute or the common law." ( Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810, 820, 93 Cal.Rptr.2d 193 ( Blasius ).)

"Under the common law, a dedication may be made either expressly or by implication." ( Scher , supra , 3 Cal.5th at p. 141, 218 Cal.Rptr.3d 643, 395 P.3d 680.) "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 *176of such acts." ( Blasius , supra , 78 Cal.App.4th at p. 821, 93 Cal.Rptr.2d 193.) "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, 218 Cal.Rptr.3d 643

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Cite This Page — Counsel Stack

Bluebook (online)
242 Cal. Rptr. 3d 304, 31 Cal. App. 5th 170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mikkelsen-v-hansen-calctapp5d-2019.