Opinion
B299641
06-22-2021
ANNE CECILIE BOYSEN et al., Plaintiffs and Appellants, v. CITY OF LA CANADA FLINTRIDGE, Defendant and Respondent.
Steven A. Blum and Gary Ho for Plaintiffs and Appellants. Chuck & Tsoong, Stephen C. Chuck and Carley M. Lee for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC675369. Michelle Williams Court, Judge. Affirmed.
Steven A. Blum and Gary Ho for Plaintiffs and Appellants.
Chuck & Tsoong, Stephen C. Chuck and Carley M. Lee for Defendant and Respondent.
ASHMANN-GERST, ACTING P. J.
In this inverse condemnation action, Anne Cecilie Boysen (Boysen) and Soren N. Madsen (Madsen) (collectively appellants) appeal from summary judgment entered in favor of the City of La Cañada Flintridge (City). We conclude that the trial court ruled correctly when it concluded that this case does not involve a physical taking of appellants' property, and that appellants failed to exhaust their administrative remedies. Accordingly, we affirm the grant of summary judgment.
Appellants provided a scant recitation of facts in their opening brief. We have relied on facts in City's separate statement of undisputed material facts to which appellants offered no dispute and on pertinent documents that appear in the record. For context, we have relied on some background facts in Madsen v. City of La Cañada Flintridge (Dec. 11, 2015, B261313) [nonpub. opn.].
Windermere Place; Lots 4, 8 and 10
Windermere Place was created in 1925 via a tract map and was dedicated to the County of Los Angeles (County) by the owners of the underlying land as an unimproved public street. While the owners retained a fee interest, the County received an easement for public use. When City incorporated in 1976, Windermere became City's unimproved public street. It is on the bottom of the slope between Lot 4 and Lot 8. Appellants currently own Lot 4. There is a fence on Lot 4 with a pedestrian gate leading to Windermere Place. Appellants and the current owner of Lot 10 own the fee interest from their respective lots to the centerline of Windermere Place. Lot 8 has an easement over Windermere Place for ingress and egress that is independent of the dedication to public use.
Due to boulders scattered near the pedestrian gate, appellants contend that the gate does not give them “practical access” to Windermere Place.
Phillip Merritt (Merritt) purchased Lot 8 in 2005.
City's Property Development Process
Before a development project can begin within City's boundaries, a private developer must submit applications for zoning entitlement. The Building & Safety Division of City's Department of Community Development (DCD) issues grading and building permits if the developer's plan meets the applicable building code requirements. If no appeal is taken within 15 days, the decision becomes final. Under City's municipal code, section 1094.6 of the Code of Civil Procedure applies to any City decision subject to review pursuant to section 1094.5
Section 1094.6 provides that judicial review “of any decision of a local agency... may be had pursuant to Section 1094.5... only if the petition for writ of mandate... is filed within” specified times. All statutory references are to the Code of Civil Procedure unless otherwise indicated.
Section 1094.5 permits a writ “for the purposes of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal[.]”
Merritt Applies to Develop Windermere Place
In 2006, Merritt, applied to City for Hillside Development Permit 06-55 (HDP 06-55), which contemplated using Windermere Place for ingress and egress. The staff report from City's Planning Commission for an April 27, 2010, public hearing recommended approval of the project. It noted that while Merritt has the right to use the unimproved street for access to his house, he is responsible for constructing improvements needed for access. If the fill for the road grade was not permitted to “daylight” (gradual feathering into a slope) onto Lot 4, Merritt was required to build retaining walls.
Merritt Proceeds with His Plans and Appellants Object
Merritt proceeded with development plans that included retaining walls because appellants refused to permit daylighting. In and before 2011, appellants corresponded with City, spoke to city council members, and appeared at public hearings to object to HDP 06-55, the development of Windermere Place by Merritt as a driveway for access to his residence, the retaining walls, and what they believed to be the negative effects on Lot 4's drainage.
City Approves HDP 06-55
On November 1, 2010, City approved HDP 06-55 and denied all appeals by adopting Resolution 10-41. Condition 15 of the resolution stated that “[t]he applicant shall be responsible for the construction of all improvements within the Windermere Place right-of-way in accordance with the approved plans and the regulations of the city.”
Resolution No. 11-16
On May 18, 2011, City approved Resolution No. 11-16 to conditionally vacate Windermere Place. It allowed Merritt to construct a residential driveway “as a replacement for the public access currently provided by Windermere Place, a dedicated public street, ” at Merritt's own cost, and to construct a gate at the entrance of the driveway.
City Approves Merritt's Landscaping Plan
On May 24, 2011, Merritt presented a landscaping plan to City's Planning Commission and proposed construction of a driveway gate and other structures. Appellants objected to the plan but made a conscious decision to decline commenting on the gate and other proposed structures. The Planning Commission approved the plan on August 4, 2011. Appellants appealed the Planning Commission's approval, but only as to the plants Merritt proposed to use. The City Council approved the plan in September 2011.
The 2011 Inverse Condemnation and Quiet Title Action
Appellants sued City for inverse condemnation and quiet title. Per the first amended complaint, City passed a resolution to vacate Windermere Place and damaged appellants' property by granting easement rights to Merritt. As alleged, those easement rights “directly interfered with, and continue to interfere with, [appellants'] quiet use and enjoyment of the Subject Property and involve a direct physical invasion of the Subject Property.”
City's demurrer was sustained without leave to amend as to the inverse condemnation claim. City and Merritt cross-complained for quiet title and the case proceeded as to the parties' quiet title claims.
The trial court issued a judgment in favor of City and Merritt stating that City held fee title over the property underlying Windermere Place, Windermere Place was subject to a permanent easement for access to Lot 8, and the easement “carries with it the right to do such things on said easement as are necessary to make full use of the easement, including construction and maintenance of a driveway and other improvements relating to its use..., and its existence is not dependent on Windermere[ Place's] continued status as a public street. Title to the Easement is quieted to and in favor of Lot 8, and shall run with the land and be reflected in and included as part of the title to Lot 8[.]”
Appellants appealed.
Agreement Between City and Merritt
In 2015, while the appeal was pending, City and Merritt entered the Agreement for Interim Development of Windermere (Interim Development Agreement). Paragraph O stated that even though appellants appealed the judgment in the quiet title action, “Merritt desires to develop Windermere Place” during the pendency of the appeal. Paragraph Q stated: “Merritt understands and agrees that the City allowing the improvement of Windermere Place to private driveway standards is a temporary and interim use... pending a final judgment in the lawsuits, and that if a final judgment is in favor of the City and Merritt, then Merritt agrees to enter into and execute [an easement agreement to use] Windermere Place.... And further, Merritt understands and agrees that if a final judgment is in favor of [appellants], that upon the City's direction, Merritt shall be responsible for and shall construct Windermere Place as a public street[.]”
The city council approved the Interim Development Agreement on March 16, 2015.
Construction of Structures and Improvements
Merritt applied for and received approval of permits to install a driveway, walls, gate and other improvement over Windermere Place. He constructed the structures and improvements over many years.
None of the structures and improvements were planned, designed, constructed, installed, maintained, repaired, operated, funded, or otherwise developed by, improved by, or owned by City.
The Appellate Decision in the 2011 Inverse Condemnation and Quiet Title Action; the Amended Judgment
The Court of Appeal reversed the judgment in part, holding that appellants held fee title to half of Windermere Place. The judgment was affirmed in all other respects, including the portion of the judgment granting the owner of Lot 8 an easement for ingress and egress over Windermere Place. On April 15, 2016, the trial court issued an amended judgment as directed by the Court of Appeal.
Recording of Resolution 11-16
On August 7, 2018, the city council passed a resolution directing the City to record Resolution 11-16. Three weeks later, Resolution 11-16 was recorded and Windermere Place was officially vacated.
The September 11, 2017, Complaint
Appellants sued the City for inverse condemnation. Their amended complaint alleged: They own the underling fee interest from their property on Lot 4 to the centerline of Windermere Place. Pursuant to the Interim Development Agreement, walls and a driveway were built and a gate was installed where Inverness Drive meets Windermere Place. Appellants could not enter the area enclosed by the gate and walls. “In implementing [the] Interim Development Agreement with Merritt, the City has, without payment of just compensation to [appellants], physically occupied and used the portion of Windermere [Place] owned by [appellants][.]” City used its public use easement and continued to maintain the gate and walls to exclude appellants from Windermere Place.
City's Motion for Summary Judgment
City alternatively sought summary adjudication.
City sought summary judgment on multiple grounds, including: there was no physical taking because the driveway, walls, gate and related improvements on Windermere Place were not designed, constructed, or maintained by City; there was no evidence that the improvements on Windermere Place were designed, constructed, or maintained for public use; and appellants' claim was barred by the statute of limitations and res judicata because they failed to exhaust their administrative remedies and challenge the Interim Development Agreement on a timely basis.
The supporting separate statement of undisputed material facts set forth 86 facts in support of summary judgment. The separate statement noted that City has never been served with a petition for writ of mandamus for any action it took related to Windermere Place.
Appellants' Opposition
In their opposition, appellants argued that City took their fee interest in Windermere Place while the appeal from the 2011 action was still pending.
Though they submitted a separate statement, they did not state whether facts Nos. 1, 2, 3, 4, 5, 6, 7, 8, 10, 12, 14, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 52, 53, 54, 56-58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 73, 80, 81, 82, 83, 84, 86, and 87 were disputed or undisputed. Rather, they asserted objections in their separate statement as to those facts. Facts Nos. 9, 11, 13, 15, 37-46, 48-51, 54, 56-58, 69-72, 74-79 and 85 were undisputed.
Appellants' separate statement did not track City's separate statement with respect to facts Nos. 82-86.
The Trial Court's Ruling; Judgment
The trial court granted summary judgment. It reasoned that City shifted its burden by submitting evidence that (1) appellants' property was neither taken nor damaged by City, nor were City's actions taken for a public purpose, (2) appellants failed to exhaust their administrative remedies because (a) they did not object when the Interim Development Agreement was approved by the city council at a public hearing on March 16, 2015, (b) they did not appeal the city council's approval, (c) they did not challenge the city council's August 7, 2018, resolution to vacate Windermere Place, and (d) at no point did appellants file a petition for writ of mandamus. Summary judgment was justified due to appellants' failure to submit a separate statement that complied with section 437c, subdivision (b)(3). Also, appellants failed to meet their burden of establishing that their interest in Windermere Place was taken or damaged, that any taking was done for public use, and that they exhausted their administrative remedies pursuant to section 1094.5 and section 1094.6.
This appeal followed.
DISCUSSION
Appellants argue that there are triable issues as to whether their property was physically taken by City, whether it was for public use, and whether they were required to exhaust their administrative remedies.
I. Standard of Review.
“‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).)
Generally, we review summary judgment de novo. First, we identify the issues framed by the pleadings. Second, we determine whether the moving party has established facts justifying judgment in its favor. Third, if the moving party has carried its initial burden, we determine whether the opposing party has demonstrated the existence of a triable issue of material fact. (Supervalu, Inc. v. Wexford Underwriting Managers, Inc. (2009) 175 Cal.App.4th 64, 69.) But even when our review is de novo, “it is limited to issues which have been adequately raised and supported in [an appellant's] brief.” (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)
When a trial court has the discretion to grant summary judgment due to an opposing parties' defective separate statement (§ 437c, subd. (b)(3)), we will not reverse unless the trial court's action exceeded the bounds of reason and caused a miscarriage of justice. The burden is on the party complaining to establish both conditions. (See Denham, supra, 2 Cal.3d at p. 566.)
II. The Defective Separate Statement.
The opposition to a motion for summary judgment “shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed.... Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion.” (Code Civ. Proc., § 437c, subd. (b)(3).)
The trial court granted summary judgment because appellants' separate statement failed to state whether undisputed material fact Nos. 1-8, 10, 12, 14, 16, 18-36, 52-53, 59-68, 73 and 80-87 were disputed or undisputed. Because appellants do not argue that the trial court abused its discretion, we must affirm the judgment. All other issues raised by appellants are moot. To be complete, we have analyzed the merits of the ruling.
III. Takings; Inverse Condemnation.
A. Takings.
A taking can be physical or regulatory. Our Supreme Court explained, “‘Where the government authorizes a physical occupation of property (or... takes title), the Takings Clause generally requires compensation. [Citation.] But where the government merely regulates the use of property, compensation is required if considerations such as the purpose of the regulation or the extent to which it deprives the owner of the economic use of the property suggest that the regulation has unfairly singled out the property owner to bear a burden that should be borne by the public as a whole.' [Citation.]” (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 9.)
B. Inverse Condemnation.
“Both eminent domain proceedings and inverse condemnation actions implement the constitutional rule that private property may not be ‘taken' (U.S. Const., 5th Amend.) or ‘taken or damaged' (Cal. Const., art. I, § 19) for public use without just compensation.” (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 939.) “‘While, in eminent domain litigation, the focus is usually limited to the amount of compensation owed the property owner under the “just compensation” clause, in an inverse condemnation action, the property owner must first clear the hurdle of establishing that the public entity has, in fact, taken [or damaged] his or her property before he or she can reach the issue of “just compensation.”' [Citation.]” (Id. at pp. 939-940.)
“‘To state a cause of action for inverse condemnation, the property owner must show there was an invasion or appropriation (a “taking” or “damaging”) of some valuable property right... by a public entity[, ]'” the taking or damaging was for a public use, and it “‘directly and specially affected the property owner to his [or her] injury.' [Citation.]” (City of Los Angeles v. Superior Court (2011) 194 Cal.App.4th 210, 221.) A public use is a use that provides a benefit to the whole community as opposed to only select individuals. (Ibid.)
Case law establishes that a plaintiff must file an administrative mandate action to challenge a regulatory taking prior to suing for inverse condemnation. That requirement does not apply in a physical taking case. (Hurwitz v. City of Orange (2004) 122 Cal.App.4th 835, 846-847.)
IV. No Physical Taking.
The complaint alleged that walls, a driveway and a locked gate were built pursuant to the Interim Development Agreement, and that City has continued to maintain the locked gate and walls to preclude appellants from the portion of Windermere Place they own. Based on this, the complaint alleged that City physically occupied and used appellants' property. But it was undisputed below that none of the structures and improvements were planned, designed, constructed, installed, maintained, repaired, operated, funded, or otherwise developed by, improved by, or owned by City. Thus, there are no triable issues as to whether City occupied appellants' property such that there was a physical taking. Consequently, the trial court properly granted summary judgment.
Because there was no physical taking, we need not discuss the public use issue.
Appellants offer a series of arguments that boil down to the assertion that City physically took their fee interest by allowing Merritt to construct a driveway and other improvements over Windermere Place. They suggest that City necessarily had to take fee title from them, and that City conveyed title to Merritt. Their position fails for multiple reasons. They have not cited any evidence that City took title from appellants through eminent domain and deeded the property to Merritt. Moreover, they have not cited any law holding that approving private construction by the holder of a permanent easement amounts to a physical taking. Because Merritt had a permanent easement with the right to build a driveway and any related improvements, City did not have to give, and Merritt did not need to receive, fee title before he commenced construction. Finally, appellants did not plead this theory of liability and it therefore was not a theory City had to address below.
In the reply, appellants argue for the first time that this case is “analogous to cases in which courts found a physical taking[] when government agencies took land from a private property owner and transferred the land to a developer for redevelopment.” Tacitly, they contend that when City gave Merritt approvals and permits to construct the gate, driveway, and walls, that was the functional equivalent of City acquiring fee title to Windermere Place in an eminent domain action and then transferring that fee title to Merritt. Arguments raised for the first time in a reply brief are waived. (Wurzl v. Holloway (1996) 46 Cal.App.4th 1740, 1754, fn. 1.) In any event, appellants cite no law in support of their tacit argument, and we reject it. Moreover, Merritt's easement rights (which included the right to construct a driveway, etc.) were decided in 2011, which became final after the first appeal. City merely gave Merritt permission to build a driveway and other improvements on Windermere Place consistent with the rights recognized by the courts.
V. No Exhaustion of Administrative Remedies.
Appellants argue that they were not required to exhaust their administrative remedies because this case involved a physical taking. As we discussed above, they failed to make that showing. At most, this case involved a burden on their property based on government regulation. Thus, they were not permitted to sue for inverse condemnation unless they had previously filed a petition for writ of administrative mandate challenging City's decision to allow Merritt's construction. Because they had not done so, the trial court correctly determined that appellants could not maintain this action. This issue served as a proper alternative basis for summary judgment.
DISPOSITION
The judgment is affirmed. City shall recover its costs on appeal.
We concur: CHAVEZ J., HOFFSTADT J.