Opinion
B164893.
11-20-2003
ZELMAN A-1, Cross-complainant and Appellant, v. BURBANK-GLENDALE-PASADENA AIRPORT AUTHORITY, Cross-defendant and Respondent.
Augustini & Wheeler, Alfred E. Augustini, Joseph J. Sheehan and Nazila Danesh for Cross-complainant and Appellant. McDermott, Will & Emery, Richard K. Simon, Thomas A. Ryan and Matthew Oster for Cross-defendant and Respondent.
This case involves cross-actions for declaratory and injunctive relief by plaintiff and cross-defendant Burbank-Glendale-Pasadena Airport Authority (Authority) and by defendant and cross-complainant Zelman A-1 (Zelman). Zelman owns a parking lot adjacent to the Authoritys Burbank-Glendale-Pasadena Airport (Airport) and seeks declaratory and injunctive relief establishing a public easement for pedestrian access over a crosswalk at the Airport, which crosswalk provides access between the northwest corner of Zelmans property and the Airport passenger terminals, which is the shortest route between Zelmans property and the terminals. On January 22, 2003, the trial court dissolved a December 10, 2002 temporary restraining order which, among other things, prevented Authority from blocking or removing (that is, painting over) the crosswalk and granted in part and denied in part Zelmans application for a preliminary injunction.
Zelman appeals from that portion of the January 22, 2003 order dissolving the temporary restraining order and denying its application for a preliminary injunction. We affirm the order because the trial court did not abuse its discretion in determining that Zelman was not likely to prevail at trial on its claim for crosswalk access to the passenger terminals based on theories of an implied-in-law dedication, common law right of access, abutter rights, express easement rights, and rights under the Pedestrian Safety Act (Veh. Code, § 21949 et seq.).
I
FACTUAL AND PROCEDURAL BACKGROUND
A. History of Airport and Zelmans Property
The Airport is a large regional airport in the City of Burbank bounded on the east by Hollywood Way (running north and south) and on the south by Empire Avenue (running east and west). To the northwest of the intersection of Hollywood Way and Empire Avenue is a 31-acre, roughly rectangular parcel of property known as the A-1 property, now owned by Zelman, and once owned by a subsidiary of Lockheed Corporation (Lockheed), which used the property for Lockheeds corporate headquarters and for manufacturing.
The Airport, which opened to the public in 1930, was originally owned and developed by United Airports Company of California, Inc. Sometime before 1940, Lockheed Properties, Inc. (LPI), a Lockheed subsidiary, acquired the A-1 property and in 1940, Lockheed Air Terminal, Inc. (LAT), another Lockheed subsidiary, acquired the Airport. LAT owned and operated the Airport until 1978, when it conveyed the Airport to the City of Burbank, which then conveyed the Airport to Authority, a joint powers agency. LPI continued to operate the facilities on the A-1 property until about 1991, when it began shutting down its operations and preparing the property for demolition and then sale. In December 2001, Zelman purchased the A-1 property from LPI for approximately $24.4 million.
The present configuration of the access roads and walkways to and from the Airport have remained substantially the same from 1941 to the present. Two parallel one-way access roads for vehicular travel form an "L" shaped "loop" which connects to entry and exit ways at Hollywood Way and Empire Avenue. The southern and eastern portion of the loop (referred to as Avenue B) is bordered by a sidewalk, which abuts the north and west sides of the A-1 property. Between the two access roads are Airport parking lots, a four-story parking garage, and a valet parking area. The northern and western access road (referred to as Avenue A) runs west from the Airports main entry at Hollywood Way to the terminal areas, where the road branches, with one "branch" continuing south to the Empire Avenue exit and another branch circling back around the western side of the parking garage (north of the northwest corner of the A-1 property) and connecting to the eastbound portion of Avenue B leading back to Hollywood Way. Avenue B runs north from Empire Avenue and at the northwest corner of the A-1 property, where there is a stop sign at the crosswalk in issue in this case, the road runs east where the traffic can either exit at Hollywood Way or turn left to connect to Avenue A, the northern loop, leading back to the passenger terminals. Beginning in 1990, Authority operated a valet parking area between the two loops of the access roads west of the A-1 property and between the main passenger terminal and the northwest corner of the A-1 property. The crosswalk is five feet wide and extends west from the northwest corner of the A-1 property, through the valet parking area, and then on to the Airports south terminal.
B. The 1978 Easements and Use Agreement
In 1978, the A-1 property was being used as Lockheeds corporate headquarters and as a manufacturing site. In connection with the 1978 conveyance of the Airport to Authority, Lockheed wanted contractual assurances from Authority as to Lockheeds right of access to the Airport as well as the right of access among the various Lockheed plants and offices located north of the Airport runways. When Authority acquired the Airport in 1978, Authority executed an easement grant deed in favor of Lockheed containing two easements, only the first of which is pertinent to this case. The "First Easement" granted to Lockheed a 30-foot easement over the sidewalk adjoining the A-1 property and Avenue B. The passenger terminal was approximately another 240 to 300 feet beyond the limits of the First Easement.
At the same time that Authority granted Lockheed the easements, Authority and Lockheed entered into a "Use Agreement," granting to Lockheed and its agents, customers, tenants, and guests, for a 10-year period, a nonexclusive right to use the common use areas of the Airport, including its roadways; in exchange, Lockheed agreed to pay Authority $140,000 per year. The Use Agreement expired by its own terms in 1988. By the early 1990s, Lockheed was no longer conducting any manufacturing work on the A-1 property and had moved its corporate headquarters to Calabasas.
C. Zelmans Development of the Property and the Dispute with Authority
In 2000, Zelman proposed to purchase the A-1 property from LPI for an industrial commercial development, but by June 2001 Zelman abandoned those plans and proposed to build a large parking lot with 2,150 spaces to serve Airport passengers. Perceiving a large commercial parking lot as an operational and financial threat, Authoritys executive director entered into negotiations with Zelman to explore possible solutions to Authoritys concerns. Authority asserted that Zelmans lot would greatly increase pedestrian traffic, posing safety risks to pedestrians crossing multiple lanes of vehicular traffic. Authority also asserted the lot posed operational risks to Authoritys valet parking operation currently located near the northwest corner of the A-1 property. Authority maintained that because about 50 percent of its revenue came from fees collected from its own parking lots, operators of nearby parking lots, and operators of car rental companies, Zelmans lot posed a financial threat. Authority projected that Authority would lose about $5 million per year if the A-1 parking lot were operated by Zelman without any restrictions. Authority also projected that if Zelman executed its standard access agreement obligating Zelman to pay Authority an access fee of 10 percent of Zelmans gross receipts, Authority would receive about $250,000 per year.
Public Utilities Code section 21661.6 prohibits Authority from purchasing the A-1 property from Zelman without permission from the City of Burbank, which allegedly has been a longtime opponent of Airport expansion.
Authority also asserted that it had no power to tax or to utilize local tax revenues, but derived its revenues from bonds, federal grants, and fees collected from its own parking lots and from concessionaires that service Airport passengers.
Zelman challenged Authoritys claims about loss of revenue, asserting that Authority is financially sound, generating a total of about $30 million per year in operating revenues, with only about $10 million of that attributed to parking revenues. Authoritys total assets were about $275 million and its outstanding liabilities were less than $20 million. Zelman also maintained that its lot could only accommodate less than 40 percent of the existing parking demand at the Airport.
According to Zelman, if Authority refused pedestrian access to the terminals from the A-1 parking lot via the crosswalk, forcing Zelman to shuttle its customers in vans to the Airport, both Zelman and Authority would each lose about $3 million per year.
Zelman claimed that during the year of negotiations with Authority about the planned operation of the parking lot, Authority never voiced any concerns about pedestrian congestion; instead, the pedestrian crosswalk was considered to be a key feature of the parking lot, whether that lot was operated by Zelman or by Authority. The negotiations between the Authority and Zelman ultimately were unsuccessful.
On October 16, 2002, Authority filed a complaint against Zelman for declaratory and injunctive relief, asserting that Authority has the right to prohibit pedestrian access to the Airport from the northwest corner of the A-1 property and that it has the right to require Zelman to enter into an access agreement with Authority.
In December 2002, Zelman completed construction and opened its parking lot. Under a reservation of rights to pursue this litigation, Zelman also entered into an access agreement with Authority and began to use shuttle vans to transport customers to and from the Airport.
In December 2002, Zelman filed against Authority a cross-complaint for declaratory and injunctive relief. On December 10, 2002, the court issued a temporary restraining order, providing, among other things, that pending a hearing on Zelmans order to show cause for a preliminary injunction, Authority was to refrain from blocking or interfering with pedestrian use of the marked crosswalk except in compliance with Vehicle Code section 21950.5.
Vehicle Code section 21950.5, part of the Pedestrian Safety Act enacted in 2000, provides: "(a) An existing marked crosswalk may not be removed unless notice and opportunity to be heard is provided to the public not less than 30 days prior to the scheduled date of removal. In addition to any other public notice requirements, the notice of proposed removal shall be posted at the crosswalk identified for removal. [¶] (b) The notice required by subdivision (a) shall include, but is not limited to, notification to the public of both of the following: [¶] (1) That the public may provide input relating to the scheduled removal. [¶] (2) The form and method of providing the input authorized by paragraph (1)."
D. Application for a Preliminary Injunction
Zelmans application for a preliminary injunction asserted the following four theories to support its claim that its parking customers had a right to use the existing pedestrian crosswalk between its property and the Airport terminals.
(1) Due to open public access and use of the access road and crosswalk for a five-year uninterrupted period between the early 1940s and 1972, the public had acquired before 1972 an implied-in-law dedication of an easement over the crosswalk under the Gion-Dietz doctrine. When Authority acquired the Airport in 1978, it took title subject to the implied-in-law dedication of the public easement.
In Gion v. City of Santa Cruz (consolidated with Dietz v. King) (1970) 2 Cal.3d 29 (Gion-Dietz), the Supreme Court applied the doctrine of implied dedication by law to find public easements of right-of-way and for recreational uses to two shoreline properties and held that the same principles of implied dedication apply to shoreline property and other properties. (Id. at pp. 41—43.)
An implied dedication may arise when the public uses land for a period of more than five years with full knowledge of the owner, without asking or receiving permission to do so and without objection being made by anyone. (Gion-Dietz, supra, 2 Cal.3d at p. 38.) The Supreme Court rejected the proposition that there is a presumption of permissive public use of unenclosed and uncultivated land, and held that "[f]or a fee owner to negate a finding of intent to dedicate based on uninterrupted public use for more than five years, therefore, he must either affirmatively prove that he has granted the public a license to use his property or demonstrate that he has made a bona fide attempt to prevent public use." (Id . at p. 41.) In response to Gion-Dietz, the Legislature in 1972 enacted Civil Code section 1009 and amended Civil Code section 813, limiting the circumstances under which an implied dedication may be found (Burch v. Gombos (2000) 82 Cal.App.4th 352, 356, fn. 1), and in large part abrogating the holding in Gion-Dietz, but only prospectively. (Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810, 823.) Thus, Gion-Dietz still applies to implied dedications to public use arising before March 4, 1972.
(2) The 1978 First Easement conveyed a right of ingress and egress over the access road adjacent to the A-1 property, and because the access road was a public street, Zelman had access to the remaining portion of the access road and crosswalk.
(3) Because Authority maintained the access road after 1978 as a public street, Zelman has "abutter" rights or an implied easement to use the adjacent access road and walkways for vehicular and pedestrian ingress and egress.
(4) Zelmans customers, as public passengers, have a common law right, and also a statutory right under the Pedestrian Safety Act (Veh. Code, § 21950.5; see fn. 3, ante), for reasonable and safe pedestrian access to the Airport.
Zelman supported the theory of implied dedication prior to 1972 with the declarations of several individuals who offered information about the existence and use of the crosswalk dating back to 1938.
Vincent Marafino, a retired Lockheed officer, worked from 1970 to 1995 in Lockheeds executive offices at the headquarters building (Building 61) at the northwest corner of the A-1 property, which housed about 250 people. An additional 50 or 60 people worked in adjacent offices on or near the access road. Marafino declared that he obtained a copy of a 1938 photograph of the Lockheed facilities showing the marked crosswalk running west from the northwest-facing lobby of Building 61, across the access road to the sidewalk in front of the terminal. The crosswalk shown in the 1938 photograph existed in substantially the same form during the time he worked at Lockheed headquarters.
According to Marafino, there was "constant pedestrian traffic" of Lockheed employees and visitors to and from the various Lockheed facilities over the access road and the crosswalk. Lockheed had an executive dining room in the Airports main terminal, and Lockheed management and guests would walk over the crosswalk to and from the dining room. Marafino also saw many non-Lockheed pedestrians, carrying luggage, using the sidewalk along the A-1 property and the crosswalk to go to and from the terminal.
Marafino stated that before the 1978 sale of the Airport, "I was aware that LAT took the legal position the Access Road was `private because it was privately owned by a private corporation, even though the Road had been continuously open to the general public for decades." But it was always Marafinos understanding "that Lockheed and the public had full access to the Access Road and adjacent sidewalks and cross-walks that were part of the common areas at the Airport," and that "[s]o far as I am aware, the Airport and the Access Road was never closed to the general public during 1970-78, or at any other time."
Viggo Butler, a former executive of LAT and its successor from 1973 to 1995, declared that during the time LAT owned the Airport it was concerned that the privately owned access road could be considered a public road, and in an effort to keep the road private, in the early 1970s LAT would put up partial barricades on the road once a year at the Hollywood Way and Empire Avenue entries; security personnel at the barricades would slow incoming traffic and give motorists a printed handout stating that the access road was a private road.
Robert Gusman, a former Lockheed attorney who worked in a building immediately east of the Airports main terminal building from 1970 to 1996, declared he also saw "constant pedestrian traffic" over the crosswalk by Lockheed personnel and many non-Lockheed pedestrians with luggage using the crosswalk.
Robert Heins, the assistant chief of police for the Burbank Police Department, declared that he has worked for the City of Burbank since 1957 and had frequently been to the Airport; at no time did he ever see any evidence that the access roads were closed to the public, except for closures due to police activity related to strikes, bomb threats or earthquakes. Had the access road been closed, traffic would have backed up onto Hollywood Way, causing a huge traffic problem, complaints would have been made to the police department, and he would have heard of any traffic problems resulting from a closure. Heins had no recollection of any such complaints.
Authority submitted declarations in opposition to the application for a preliminary injunction. Authoritys deputy director, Daniel Feger, submitted a declaration authenticating three photographs from Authoritys records. A photograph and an accompanying affidavit by the photographer showed that on April 9, 1949, the access roads at Empire Avenue and Hollywood Way were barricaded and closed to use by the general public. A photograph from the 1950s showed a "No Trespassing" sign on the access road, and a photograph taken sometime between 1967 and 1970 showed a sign at the entrance to the access road stating "Private Property Permission to Pass Over Revocable At Any Time."
David Simmons, an LAT employee from 1946 to 1984, and president of LAT beginning in 1968, declared that before 1972 LAT would annually erect a barrier staffed by a security guard at both the Hollywood Way and Empire Avenue entrances to the Airport to prevent the access road from becoming a public road. Sometime before 1967, his photograph was taken at the barricade with LATs security chief.
Viggo Butler (who also supplied a declaration dated the same day to Zelman) declared that after he arrived at LAT in 1973, LAT would annually close the entry to the Airport access road and erect a barricade manned by a security guard, and he was told that LAT had been implementing this protocol for many years because it was concerned that the access road not become a public road. While he was employed by LAT, LAT never expressed any intent to dedicate the access road to public use. Butler also declared that from the 1960s until the late 1980s, pedestrian travel between the Lockheed corporate headquarters and the executive dining room in the Airport terminal was "extremely limited," consisting at the most of about 50 individuals dining at lunchtime in the dining room. In addition, before the construction of the nearby Burbank Hilton Hotel in the mid 1980s, there was "effectively no public use" between the A-1 property or the adjacent sidewalks and the Airport terminal, and the only pedestrian traffic between the A-1 property and the terminal consisted of Lockheed employees or invitees.
Tony LoVerme, a former employee of LAT from 1969 to 1987, declared that while he was employed by LAT, LAT would periodically close the Airport access road to the public, and he was told that LAT had been implementing the program for many years. When LAT barricaded the access roads, a security guard would hand to those seeking to enter a written notice stating that the road was a private road and that permission to pass was by permission of LAT, which permission was revocable at any time.
Gilbert McElroy, a former employee of Lockheed and successor companies from 1968 to 1972, declared that he routinely walked along the access road during that time and saw multiple signs posted along the access road stating that the property was private property and that no trespassing was allowed. Lockheed also routinely closed the access road to the public so that Lockheed could move pieces of aircraft from the A-1 property and across the access road to other facilities owned by Lockheed.
After extensive argument on Zelmans application for a preliminary injunction on December 23 and 26, 2002, the court denied the application for an injunction as to the crosswalk, finding that Zelman was not likely to prevail on its claim of a right to public access over the crosswalk. The court issued its ruling as follows: "We have four theories here articulated for access. Number one is the express easement, Easement 1 [(the First Easement in the 1978 easement grant deed)], and I am fully persuaded that Easement 1 goes as far as its terms and no further, that it does not create expressly or by implication a further easement of any kind across the valet parking lot. [¶] The easement is to allow pedestrian access along the eastern and, thence, the southern edges of Avenue B onto the . . . A-1 parcel, and its also to allow vehicular access onto the eastern and southern portions of Avenue B. It does not extend further than that in my view. [¶] On the evidence here before me, there is no basis to conclude that the northern portion of Avenue B or the western portion of Avenue B has ever had a sidewalk on it. [¶] So the existence of the crosswalk at the northwest corner of Avenue B only has significance if, in fact, the right is to cut across the valet parking, an area that has been used for parking for many, many, many years. But it isnt created by Easement 1."
On the issue of abutters rights, the court stated that the instant facts were distinguishable from those in Short Line Associates v. City and County of San Francisco (1978) 78 Cal.App.3d 50 (Short Line), the principal case relied upon by Zelman. "[A]nd theres not a whole lot of law on this abutters rights, but the principle is that you cant be landlocked from the public street. Here theres no need for abutters rights because theres an express easement onto the street. [¶] . . . [T]he easement gives a right to access East Avenue B and South Avenue B. . . . And that access is sufficient to allow it."
With respect to the issue of a statutory right of access under the Pedestrian Safety Act, the court stated that it was "unpersuaded that there is a substantive right to have a crosswalk in a given location. The Pedestrian [Safety Act] suggests that [pedestrian access] is a goal, a policy goal, for all levels of government to encourage and to provide reasonable and easy pedestrian access . . . . [¶] [But the Act] is utterly discretionless. There is no way that I can see under the statute that access at point A could be compelled over point B, 50 yards away, for example. [¶] [T]he Vehicle Code . . . provides a procedural mechanism for notice and a hearing prior to the removal of the crosswalk, but it does not provide any substantive standards as to when a crosswalk can be moved, removed."
The courts most extensive explanation of its ruling addressed the theory of an implied dedication of a public easement. The court found that though there may have been lessees on various portions of the Airport before 1972, "nothing before the court . . . suggests that any permission to cross over Airport property, [granted] to those lessees, was a general invitation to the public at large, whether they were fueling operations, whether they were aircraft maintenance operations, whether they were general aviation hangars or suppliers or whatever. [¶] . . . [¶] There is no doubt at this point in my mind that Lockheed wanted to retain the private nature of the property and . . . sought to exercise its ability to control the property, including access over the access roads. [¶] The evidence is somewhat spotty as to when signs were posted and where, but the preponderance at the moment of the credible and persuasive evidence suggests that up through at least 1972 that Lockheed exercised control by, in fact, periodically physically reducing [or] restricting access on these roadways to members of the public. [¶] Now, there has been some considerable argument whether this was an effective or ineffective way to do this. And Im not persuaded it was ineffective. [¶] . . . I think . . . that the public was allowed to access [the crosswalk] for limited purposes and limited purposes only, and it was not a general permission to cross for non-Airport purposes, non-Airport uses. [¶] [T]hat Lockheed was letting people on the premises for a specific business purpose supports, rather than vitiates, the argument that this was a license. [¶] [T]he court is left with the sense from all the evidence that public use of this crosswalk . . . was, in comparison to the use put to it by Lockheed, sporadic and less substantial. [¶] I think that there were probably a small handful of people who used the [sidewalks abutting the A-1 property] and crossed [using the crosswalk], but the sense that the court is left with at the moment is that that crosswalk was primarily an access way for Lockheed and people on business with Lockheed. [¶] And Im not prepared to take the leap that because Lockheed was clearly permissibly using that crosswalk for various purposes to get to other buildings, to get to the dining room . . . , that the incidental use by a small segment of the public during the same time transforms this into a general license."
The court stated that for Zelman to establish a likelihood of success on the merits, it had to establish a legal right to access over the crosswalk, and the court was "not persuaded at this point that the existence of that legal right has been satisfactorily shown in the sense that the moving party has not carried its burden to establish . . . that theyre entitled to relief."
On January 22, 2003, an order was filed dissolving the temporary restraining order and granting in part and denying in part Zelmans application for a preliminary injunction. With respect to the crosswalk, the order provided that during the pendency of the action or further order of the court, the preliminary injunction was granted in part as follows: "The Authority shall not take any action to remove, restrict, reduce or relocate any existing handicap access ramp or marked crosswalk crossing the First Easement to the A-1 property except in compliance with California Vehicle Code § 21950.5." (See fn. 3, ante.)
The order also provided that the preliminary injunction was denied in part on the following grounds: "A. The 1978 Easement Grant Deed extends no further than its written terms and does not extend beyond the Airport access road to the Airport terminal; [¶] B. Any common law abutter rights possessed by Zelman would, at most, be coextensive with the rights granted under the 1978 Easement Grant Deed; [¶] C. Neither Zelman nor its customers have a substantive right to maintenance of a crosswalk at any given location; [¶] D. There was no implied dedication for public use of the Airport access road and adjoining sidewalk because such use prior to 1972 was pursuant to a limited license and California Civil Code §§ 1007, 1008 and 1009 barred any implied dedication after 1972; and [¶] E. As to the relief denied, the moving party had not carried its burden to show a likelihood of success on the merits."
Zelman filed a timely notice of appeal from the January 22, 2003 order. Zelman filed a petition for a writ of supersedeas, which we denied in February 2003.
We are informed by Authoritys appellate brief and request for judicial notice, which we granted, that Authority held a public hearing on removal of the crosswalk on January 21, 2003, and the Authoritys governing commission voted six to three to remove the crosswalk. The crosswalk was removed on March 1, 2003. Zelman challenged Authoritys January 21, 2003 decision by amending its cross-complaint to assert a petition for a writ of mandate, which the trial court denied in July 2003. The ruling denying Zelmans petition for a writ of mandate is not part of this appeal.
II
STANDARD OF REVIEW
In deciding whether to grant an application for a preliminary injunction, the trial court considers two interrelated factors: (1) the likelihood that the applicant will prevail on the merits at trial and (2) the interim harm that the applicant is likely to sustain if the injunction were denied as compared to the harm the opponent is likely to suffer if the preliminary injunction were issued. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1109.) "And although we will not ordinarily disturb the trial courts ruling absent a showing of abuse, an order granting or denying interlocutory relief reflects nothing more than the superior courts evaluation of the controversy on the record before it at the time of its ruling; it is not an adjudication of the ultimate merits of the dispute." (Ibid.)
If the evidence conflicts, we must construe it in the light most favorable to the trial courts decision and indulge in all reasonable inferences in support of the trial courts order. (California Correctional Peace Officers Assn. v. State of California (2000) 82 Cal.App.4th 294, 302; Brunzell Constr. Co. v. Harrahs Club (1967) 253 Cal.App.2d 764, 773.) And "where there is a substantial conflict in the evidence regarding an issue which may affect the discretion of the court in passing upon the application for an injunction [citation] an order denying an injunction will not be reversed." (London v. Marco (1951) 103 Cal.App.2d 450, 452—453.)
III
DISCUSSION
A. Implied Dedication
Zelman contends that, under Gion-Dietz, it had shown that public use of the crosswalk before 1972 had created an implied dedication and the trial court erred in not accepting its prima facie case of an implied dedication and in "placing the burden of disproving licensed use on Zelman."
"An implied dedication may arise when `the public has used the land "for a period of more than five years with full knowledge of the owner, without asking or receiving permission to do so and without objection being made by anyone." (Gion[-Dietz, supra,] 2 Cal.3d 29, 38 . . . .) The public usage must have been by `various groups of persons not a `limited and definable number of persons. (Gion[-Dietz], at p. 39.)" (Burch v. Gombos, supra, 82 Cal.App.4th at p. 361, fn. omitted.)
Both Gion-Dietz, supra, 2 Cal.3d 29, and Friends of the Trails v. Blasius, supra, 78 Cal.App.4th 810 (Blasius), require the landowner to provide affirmative evidence of a license to the public or of efforts to prevent public use in order to negate a finding of intent to dedicate based on uninterrupted public use for more than five years. (Id. at p. 822; Gion-Dietz, supra, 2 Cal.3d at p. 41.) A license permitting public use is negated when "persons used the property believing the public had a right to such use. This public use may not be `adverse to the interests of the owner in the sense that the word is used in adverse possession cases. If a trial court finds that the public has used the land without objection or interference for more than five years, it need not make a separate finding of `adversity to support a decision of implied dedication." (Gion-Dietz, supra, 2 Cal.3d at p. 39.) It is a question of fact to be determined from all the circumstances of the case whether ones use of anothers property is adverse or with the permission or license of the owner. (OBanion v. Borba (1948) 32 Cal.2d 145, 149.)
Our record shows that Authority offered evidence on the issue of license, and the trial court found that LAT had granted a license to the public to make use of the access road and crosswalk. There was evidence that the property was posted with signs as early as 1949 which informed the public that the property was private and that permission to pass was revocable at any time. Similar information was contained on handbills passed out to motorists on a yearly basis. Zelman argues that the evidence shows only that the signs were posted intermittently between 1940 and 1972 or that only a small fraction of the public was granted permission to enter on the annual occasions when the access road was blocked. Yet the trial court reasonably could have inferred that the signs had remained posted and the annual barricades had occurred for significant periods of time during any five-year period so as to negate an implied dedication. Because LAT was aware of the danger of creating an implied dedication as early as 1949, when it barricaded the access road, it was also reasonable for the trial court to infer that LAT had taken similar steps from the early 1940s until 1972 in order to prevent an implied dedication.
Accordingly, even though photographs or other evidence may have been unavailable as to each of the years from 1940 to 1972, the trial court reasonably could have inferred from this record that such signs and annual barricades continued throughout this time. The trial court also could have reasonably concluded that LATs conduct throughout these years precluded any reasonable belief by the public that its use was adverse or without permission. Having established that the public use was by license or with its permission, LAT did not have to show that it also made a bona fide attempt to prevent public use. Either showing is sufficient to defeat an implied dedication.
Zelmans claim that the trial court placed on it the burden of disproving the issue of license is not borne out by the record. But had the trial court done so, any error would have been harmless because the trial court determined from the evidence before it that there had been permission or a license granted to the public to use the access road and crosswalk. Zelman fails to establish the trial court abused its discretion with respect to the issue of implied dedication.
B. Common Law Right of Access to Public Transportation Facilities
Citing primarily authorities applying non-California law, Zelman argues that the trial court "ignored well-established cases recognizing a public right of access to the Airport as a public transportation terminal." In a related vein, Zelman argues that California statutes (namely, Public Utilities Code, § 21690.8 and Gov. Code, § 50474) permit Authority to restrict airport access by commercial operators but do not permit restrictions on a purported common law right of access of public passengers to the Airport.
Public Utilities Code section 21690.8 provides in pertinent part: "The Legislature recognizes that to further the policies and fulfill the objectives stated in this article, it is often necessary that publicly owned or operated airports enter into exclusive or limited agreements with a single operator or a limited number of operators. The governing bodies of publicly owned or operated airports shall grant exclusive or limited agreements to displace business competition with regulation or monopoly service whenever the governing body determines, in consideration of the factors set forth in Section 21690.9, that such agreements are necessary to further the policies and to fulfill the objectives stated in this article."
Government Code section 50474 provides in pertinent part that in connection with "the erection, improvement, expansion, or maintenance of such airports or facilities, a local agency may: [¶] (a) Regulate the receipt, deposit, and removal, and the embarkation or debarkation of passengers or property to and from such landing places or moorage. [¶] . . . [¶] (f) Regulate the use of the airport and facilities and other property or means of transportation within or over the airport."
Zelman did not argue below, and does not argue here, that removal of the crosswalk would effectively deny all public access, or all pedestrian access, to the Airport. Although Zelmans arguments are couched in terms of common law rights of access, what Zelman appears to be asserting here is a public prescriptive easement to use a particular portion of Authoritys property as a pedestrian crosswalk to access public transportation facilities. Yet "no title by prescription can be acquired against any municipal corporation or subdivision of the state in land reserved for or devoted to some specific public use. (Civ. Code, § 1007 . . . .) The use as an airport of the property here involved is a public use, which excludes acquisition of rights by prescription." (City of Oakland v. Burns (1956) 46 Cal.2d 401, 406—407.) A common law right of access, or easement, over public property is also barred by the doctrine underlying Civil Code section 1007. The purpose of Civil Code section 1007 "is to protect a public entity from loss of publicly owned rights through suffering an encroachment . . . ." (Blasius, supra, 78 Cal.App.4th at p. 827.)
Civil Code section 1007 provides in pertinent part that "no possession by any person, firm or corporation no matter how long continued of any land, . . . right, easement, or other property whatsoever . . . dedicated to or owned by the state or any public entity, shall ever ripen into any title, interest or right against the owner thereof."
"The basis of that doctrine [underlying Civil Code section 1007] is `"[t]here can be no adverse holding of such land which will deprive the public of the right thereto, or give title to the adverse claimant, or create a title by virtue of the statute of limitations. The rule is universal in its application to all property set apart or reserved for public use, and the public use for which it is appropriate is immaterial. . . . The public is not to lose its rights through the negligence of its agents, nor because it has not chosen to resist an encroachment by one of its own number, whose duty it was, as much as that of every other citizen, to protect the state in its rights." (Blasius , supra, 78 Cal.App.4th at p. 827.)
Of no avail to Zelman is Phillips v. City of Pasadena (1945) 27 Cal.2d 104 because the case does not establish a common law right of public access to the pedestrian crosswalk at the Airport. Rather, Phillips held that an owner of a resort could maintain a nuisance action against a city for allegedly destroying its business when the city unlawfully blocked a public street, the only safe access to the resort.
In sum, Zelman fails to persuade us that the trial court abused its discretion in determining that Zelman was not likely to prevail on the merits with respect to the theory of a common law right of access to the Airport.
C. Express Easement Rights
Zelman contends that the order denying a preliminary injunction and permitting removal of the crosswalk constituted a violation of its rights under the First Easement because the crosswalk "was the principal means of the pedestrian use of the Easement for 25 years." In a related argument, Zelman contends that the removal of the crosswalk also violates the rights of its customers to access the First Easement (and then its parking lot) from the Airport terminals. Zelman cites no pertinent authority to support these arguments. Further, the trial court reasonably determined that the First Easement extended only 30 feet and encompassed only the adjacent sidewalk and access road. Access to the terminal was granted not by the First Easement, but by the Use Agreement, which expired in 1988. In order for its customers to gain access to the Airport terminal or to return to the Zelman parking lot from the terminal, Zelmans customers would have to pass through Authoritys valet parking lot operations. But the trial court determined that Zelman has no express easement over the valet parking area and continuing on to the terminal. Thus, Zelman fails to establish that the trial court abused its discretion in concluding that the First Easement did not support Zelmans claims for relief.
D. Abutter Rights
Zelman contends that the trial court erred in ruling that its abutter rights did not include an implied easement over the valet parking lot. We conclude that the trial court did not abuse its discretion in concluding that Zelman was not likely to prevail on this theory because Zelman failed to establish that the abutter rights doctrine permits Zelman access to or through Authoritys business operations in the valet parking area.
"It has long been recognized in this state and elsewhere that an owner of property abutting upon a public street has a property right in the nature of an easement in the street which is appurtenant to his abutting property and which is his private right, as distinguished from his right as a member of the public. That right has been described as an easement of ingress and egress to and from his property or, generally, the right of access over the street to and from his property . . . ." (Bacich v. Board of Control (1943) 23 Cal.2d 343, 349—350 (Bacich ).) "The extent of the easement of access may be said to be that which is reasonably required giving consideration to all the purposes to which the property is adapted. . . . It would seem clear that the reasonable modes of egress and ingress would embrace access to the next intersecting street in both directions. It should be noted that the right is more extensive than the mere opportunity to go on to the street immediately in front of the property." (Id. at p. 352.)
In Short Line, supra, 78 Cal.App.3d 50, the court held that the owner of a building abutting a 20-foot wide public pedestrian plaza in the City of San Francisco had abutter rights of pedestrian access and light and air because the plaza "was designed and constructed as a public street or way for the exclusive use of pedestrians." (Id. at p. 59.)
In this case, the trial court did not abuse its discretion in rejecting Zelmans claims based on abutter rights because the circumstances here are distinguishable from those in Short Line. The court reasonably concluded that the valet parking area did not constitute a public "street" within the meaning of Short Line and Bacich. That determination does not constitute an abuse of discretion in light of the instant record.
E. Pedestrian Safety Act (Act)
Zelman maintains that the trial court properly concluded that the Pedestrian Safety Act is applicable to Authority, but "erroneously denied injunctive relief solely because the Acts legal standards are implied rather than expressly set forth." Zelman also claims that it is entitled to injunctive relief because it "presented a prima facie case that removal of the crosswalk would violate all four of the statutory directives" in the Act. Zelman derives a policy in favor of pedestrian travel and access from the provisions of Vehicle Code section 21949, subdivision (a), and three related policies pertaining to pedestrian travel from the provisions of subdivision (b).
Vehicle Code section 21949 provides: "(a) The Legislature hereby finds and declares that it is the policy of the State of California that safe and convenient pedestrian travel and access, whether by foot, wheelchair, walker, or stroller, be provided to the residents of the state. [¶] (b) In accordance with the policy declared under subdivision (a), it is the intent of the Legislature that all levels of government in the state, particularly the Department of Transportation, work to provide convenient and safe passage for pedestrians on and across all streets and highways, increase levels of walking and pedestrian travel, and reduce pedestrian fatalities and injuries."
The trial courts January 22, 2003 order directed Authority to comply with the notice and hearing provisions of the Act before taking any action to remove the crosswalk. The formal court order does not address any other issues arising under the Act. Thereafter, Authority held a public hearing and made its decision to remove the crosswalk. In a mandamus proceeding in the superior court, Zelman is challenging Authoritys decision and that mandamus proceeding apparently is still pending. (See fn. 5, ante.) We do not have before us on this appeal the record of the public hearing before Authority or the records in the mandamus proceeding.
The trial court in this case denied injunctive relief to Zelman based on its claims under the Act because the court impliedly determined that those claims were then premature and were capable of being resolved, and were required to be resolved, only after further administrative proceedings. Indeed, had the trial court proceeded to address the merits of Zelmans claims under the Act at that time, the notice and hearing provisions of the Act would have been violated. (See fn. 3, ante.) Accordingly, Zelman fails to establish the trial courts ruling with respect to the Act constituted an abuse of discretion.
We also conclude that the merits of Authoritys removal decision is an issue not properly before us on this appeal. All of the issues raised by Zelman in that regard can be resolved in the mandamus proceeding.
DISPOSITION
The January 22, 2003 order is affirmed.
We concur: SPENCER, P. J. and ORTEGA, J.