Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph De Vannon, Judge. Ct. No. GC039625
Alessi & Bayard, Thomas J. Bayard, Walter Hackett, Stephen D. Buckner and Susan Bonno-Buckner for Defendants and Appellants.
Richards, Watson & Gershon, Craig A. Steele, Patrick K. Bobko and Geoffrey L. Ward for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Stephen D. and Susan J. Buckner appeal from the trial court’s entry of summary judgment finding that the City of Monrovia (City) holds a permanent easement over part of the Buckners’ real property, to be used by the public as a recreational trail. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Unless otherwise noted, the facts set forth below are drawn from the City’s Separate Statement of Undisputed Material Facts (City’s Separate Statement), the Buckners’ Opposition Separate Statement and the documents and declarations submitted in support of the Separate Statements.
The Buckners disputed virtually every fact. The purported disputes set forth in their response to the City’s Separate Statement were largely premised on evidentiary objections, argument and characterizations of the legal effect of facts and documents. Sometimes, there were no citations to controverting evidence. To the extent that the disputes were premised on evidentiary objections, argument, characterizations and were not supported in the Buckners’ Opposition Separate Statement by controverting evidence, these portions of the Buckners’ Opposition Separate Statement were ineffective to create triable issues of fact. Rule 3.1350(f) of the California Rules of Court, requires than an “opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute... the evidence that supports the position that the fact is controverted. That evidence must be supported by citation to exhibit, title, page, and line numbers in the evidence submitted.” (Italics added.)
On appeal, the Buckners did not make any substantive arguments as to any of the factual disputes they attempted to raise in their Opposition Separate Statement. The trial court overruled all of the Buckners’ objections to the City’s evidence and the Buckners’ briefs on appeal do not make any substantive arguments as to any of the evidentiary rulings. In failing to offer evidence controverting the facts relied on by the City and in the absence of substantive argument demonstrating any error in the trial court’s overruling of the Buckners’ evidentiary objections, the Buckners’ challenges to the City’s evidence must fail. (E.g., Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115–1116); State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610 [appellant bears burden of demonstrating error].)
We have relied only on facts which were not effectively disputed in the Buckners’ Opposition Separate Statement and were not argued substantively in the Buckners’ briefs on appeal.
In the 1950’s, the Los Angeles County Flood Control District (Flood Control District) obtained fee titles and an easement over properties located along a natural wash running out of the San Gabriel Mountains for the purpose of constructing the Saw pit Wash, a 4.7 mile concrete-lined flood control channel that runs through the City. The Flood Control District obtained title to all the property over which the Saw pit Wash runs, and obtained a permanent easement over a part of a property located at 503 Norumbega Drive in the City, identified as Parcel No. 26.
Dirt maintenance roads run along both sides of the Saw pit Wash, with access points at various locations. Monrovia residents have used the roads for recreational purposes for some period. In October 1994, the City held a community meeting regarding whether to pave the maintenance roads. The City Council held a hearing in April 1995 concerning the paving issue. That year the City began to perform routine maintenance and cleaning of the roads on both sides of the wash. Also in 1995, the Flood Control District granted the City a permit “to operate and maintain recreational trail along access roads.” Beginning in 1995, the City spent approximately $10,000 of public money to erect 800 feet of fencing between the roads and the wash, posted signs along the roads at various points, installed waste receptacles, and installed plastic baggie dispensers for dog walkers.
Joe I. Young, with his wife Dora, owned and lived on Parcel 26, the 503 Norumbega address subject to the Flood Control District’s permanent easement, from 1984 until 2002. Young was aware during his residency “that Monrovia residents and members of the public used the recreational trails...,” commonly walking their dogs, riding horses or hiking. According to Young, he observed that the City maintained the trail and replaced and replenished gravel along the trail. He never objected to these activities and never attempted to close the roads to hikers or otherwise interfere with the public’s use of the trail.
Stephen D. Buckner and Susan J. Buckner (“the Buckners”) purchased the property in 2002. Following what the Buckners characterized as continuing problems with the people, horses and dogs using the trail, in June 2007 they installed a gate closing off the portion of the trail on their property.
On September 20, 2007, the City filed a quiet title action against the Buckners. The complaint alleged that the City had acquired a permanent easement over the portion of the access road on the Buckner’s property by adverse possession and by implied dedication. The City filed a motion for summary judgment on February 5, 2008, with the hearing date set for April 29, 2008.
The Buckners’ opposition to the summary judgment motion was due on April 16. On April 13, the Buckners filed a motion to continue the hearing date, claiming they needed additional time for discovery. The court denied the motion in an order filed April 15.
The Buckners also filed a motion to compel the joinder of the Flood Control District as an indispensable party. The City opposed the motion, and after a hearing, the court denied the motion to join the Flood Control District on April 22, 2008.
The trial court held the summary judgment hearing as scheduled on April 29, 2008. On May 2, 2008, the court issued a minute order granting the City’s motion. The court filed an order and entered judgment on June 3, 2008. The order stated: “Defendants Stephen J. and Susan J. Bonno Buckner and their predecessors-in-interest were aware of, and failed to object to, the City’s and the public’s open, notorious, and continuous use of the Saw pit Wash trail for recreational purposes. The City of Monrovia has, since at least 1995, expended public funds on ‘visible improvements on or across such lands or on the cleaning or maintenance related to the public use’ on the Saw pit Wash trail. The City’s improvement and maintenance of the Saw pit Wash trail for a period longer than five years has vested the City with a permanent easement to use the trail for recreational purposes. There has been a public dedication of the portion of the Defendants’ property on which the Saw pit Wash trail is located pursuant to Civil Code section 1009(d).”
The City served notice of entry of judgment on June 6, 2008, and the Buckners filed this timely appeal.
DISCUSSION
I. The trial court did not abuse its discretion in refusing to grant the Buckners a continuance.
The Buckners argue that the trial court abused its discretion in denying their exparte application for a continuance to conduct further discovery. The Buckners filed the application two days before their opposition to the City’s summary judgment motion was due, and nearly three months after being served with the motion. The application stated that a continuance was necessary to allow the Buckners to “at least positively identify some parties and entities from which they then can obtain” the “extraordinarily extensive discovery they need to conduct.” The Buckners claimed that the “numerous individuals and multiple governmental agencies” from which they needed to obtain documents, witnesses, and deponents would create “great difficulty in conducting discovery in the instant matter.” They admitted, however, that they had not yet conducted any discovery from any of the governmental agencies.
The Buckers also filed a motion to compel joinder of the Flood Control District as an indispensable party. They do not appeal the trial court’s denial of that motion.
The Buckner’s exparte application for a continuance is governed by Code of Civil Procedure section 437c, subdivision (h), which provides: “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. The application to continue the [summary judgment] motion to obtain necessary discovery may also be made by exparte motion at any time on or before the date the opposition response to the motion is due.”
The standard of review in cases such as this one is abuse of discretion. The statute “mandates a continuance of a summary judgment hearing upon a good faith showing by affidavit that additional time is needed to obtain facts essential to justify opposition to the motion. [Citations.] Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h). [Citations.] Thus, in the absence of an affidavit that requires a continuance under section 437, subdivision (h), we review the trial court’s denial of appellant’s request for a continuance for abuse of discretion. [Citation.]” (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 253–254.)
The statute mandates that three requirements be fulfilled to justify a continuance of a summary judgment hearing. The supporting declarations must show “‘(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts.’” (Cooksey v. Alexakis, supra, 123 Cal.App.4th at p. 254.)
We examine the declaration submitted by the Buckners’ counsel to determine if it justified a continuance under Code of Civil Procedure section 437c, subdivision (h) and conclude that it did not.
The first prong of the test requires the moving party to show that the facts to be obtained in discovery are “essential” to oppose the motion. The declaration submitted by the Buckners’ counsel did not satisfy this prong. Reviewing the declaration, it is difficult to determine what facts the Buckners claim they need to obtain. Paragraph two states that counsel is drafting a motion to compel joinder of an indispensable party and that such joinder is essential “to allow Moving Defendants to propound meaningful and concise discovery requests to Los Angeles County departments and agencies not currently parties to the instant action. It is my belief that such departments and agencies possess documents and facts which will establish, inter alia, that Plaintiff’s Complaint and Motion for Summary Judgment are devoid of merit and the allegations contained therein are expressly contrary to the terms and conditions between such County departments and agencies and Plaintiff.”
Reading this, it is impossible to tell what kinds of information the Buckners hope to obtain through discovery from Los Angeles County departments and agencies. It consequently is impossible to conclude that such information is essential, as required by the statute. In fact, it is difficult to understand what essential information the County might possess because, as is discussed below, the motion turned almost completely upon the City’s un contradicted evidence that it openly improved the trail with a fence, signs, waste receptacles and plastic baggie dispensers for dog walkers during the relevant period in an open and notorious manner without the property owners’ permission.
Similarly, the Buckners fail to meet their burden under the second prong, by failing to establish that such facts exist. We do not know what facts are alleged to exist and have reason to believe that facts to be obtained from the County that are essential to the defense do not exist because the decision hinges on the City’s acts, not the County’s.
The same defects exist with respect to the remaining paragraphs of the declaration submitted by the Buckners’ counsel. In paragraph four, counsel asserts that various County agencies and departments are involved in some way. This assertion fails to satisfy the first and second prongs for the same reasons discussed above.
In paragraph five of the declaration, counsel asserts that the previous owners, the Youngs, did not disclose in papers associated with the sale of the property awareness of “[a]ny encroachments, easements or similar matters that may [a]ffect (their) interest in the subject property.” The declaration does not identify what discovery is necessitated by this situation and does not establish that any essential facts exist.
In paragraph six of the declaration, counsel asserts that the City has identified “nearly two dozen individuals including numerous employees of various County agencies and departments as parties having knowledge of facts materially related to the issues in the instant matter.” Again, the declaration does not say what these people might know that can help the Buckners or how their information might be essential to the opposition to the motion. Indeed, in the exparte application seeking the continuance, the Buckners assert that they do not plan to take the depositions of the two dozen individuals whose declarations the City has submitted because these individuals are so biased and their declarations are so legally flawed. This appears to be an admission that discovery from these people is not essential.
In paragraph seven of the declaration, counsel asserts that the physical parameters of the actual real property are not clearly identified in the condemnation notice and the legal description of the property contained in Exhibit F. Apparently counsel wished to take some unidentified form of discovery concerning the degree to which the easement encroaches on the Buckners’ property. This is a red herring. The question before the court on summary judgment was not whether the boundaries of the Buckners’ property were exactly coextensive with the boundaries of Parcel 26 or the easement, but whether a section of the easement ran over their property. Neither the declaration, nor the exparte application for the continuance, made any claim that the easement did not run over the Buckner property. In fact, the Buckners admit that “there is, in fact, some overlap between Parcel 26 and Defendants’ property,” The precise measurement of the easement’s encroachment on the Buckner’s property is not at issue. Thus, the information sought does not appear to be essential to the opposition to the motion.
The declaration fails to satisfy the first two prongs of the test set forth in Code of Civil Procedure section 437c, subdivision (h).
Even if it could be construed as satisfying the first two prongs, the declaration also fails to comply with the third prong—the establishment of reasons why additional time is needed. The declaration does not provide any particularized explanation of why the Buckners have not previously issued subpoenas for depositions or documents to resolve their professed confusion as to the precise measurements of the easement’s encroachment on their property. Nor does it explain why they have not previously utilized subpoenas to obtain from the County, the Youngs, or others, the documents or testimony they claim may be useful. Conversely, the Buckners admit that additional time is not needed to take depositions of the persons providing the City’s declarations in support of the summary judgment motion, because they dismiss those persons as so biased, and their declarations as so legally inadequate, that it would be pointless to spend resources taking the depositions. The Buckners’ failure “to explain why the discovery sought could not have been completed sooner” rendered the supporting declaration inadequate. (Cooksey v. Alexakis, supra,123 Cal.App.4th at pp. 255–256.)
The Buckners did not comply with the requirements of Code of Civil Procedure section 437c(h) and did not make the “good faith showing by affidavit that additional time is needed.” (Cooksey v. Alexakis, supra,123 Cal.App.4th at pp. 253–254.)
Where, as here, the supporting declaration is inadequate, the trial court’s decision will be reviewed for abuse of discretion. (Cooksey v. Alexakis, supra,123 Cal.App.4th at p. 254 .) We conclude that the trial court did not abuse its discretion in denying the application for continuance.
II. The City obtained a permanent easement over the Buckners’ property under Civil Code section 1009, subdivision (d).
We review de novo the trial court’s decision to grant summary judgment, considering all the evidence presented in connection with the motion and the uncontradicted inferences that the evidence reasonably supports. (Tilley v. CZ Master Assn. (2005) 131 Cal.App.4th 464, 477.)
The trial court concluded that the City had a permanent easement over the Buckners’ property pursuant to Civil Code section 1009, subdivision (d), which provides: “Where a governmental entity is using private lands by an expenditure of public funds on visible improvements on or across such lands or on the cleaning or maintenance related to the public use of such lands in such a manner so that the owner knows or should know that the public is making such use of his land, such use, including any public use reasonably related to the purposes of such improvement, in the absence of either express permission by the owner to continue such use or the taking by the owner of reasonable steps to enjoin, remove or prohibit such use, shall after five years ripen to confer upon the governmental entity a vested right to continue such use.” Based on the undisputed evidence, we agree.
The Buckners do not dispute that the City made “visible improvements” on the maintenance roads. Instead, they point out that the City erected the fence in 1995 in compliance with the permit issued to the City by the Flood Control District, to keep the users of the trail out of the concrete flood control channel. They argue that the improvements therefore were “NOT for the purpose of actually ‘improving’ the trail,” but to reduce the County’s and the City’s liability, and were also for the purpose of flood control.
These arguments do not assist the Buckners. First, Civil Code section 1009, subdivision (d) does not require that the sole purpose of the governmental expenditures or maintenance efforts be to promote the public use. Thus, if the expenditures and maintenance efforts promoted the public use but also served the purposes of complying with the permit issued by the County or shielding the County and City from liability, or promoting flood control, that would not undermine the rights conferred under the statute.
Even if some of the City’s purposes in spending $10,000 to erect the fence, or in cleaning and maintaining the trail, were to comply with the permit issued by the County, or to shield itself and the County from liability, or to promote flood control, the fence, signs, waste receptacles and plastic bag dispensers were not deprived of their character as “visible improvements on or across such lands” created “by an expenditure of public funds,” “related to the public use of such lands” contemplated by section 1009, subdivision (d).
These improvements and maintenance were, in fact, calculated to promote public use. It can hardly be contested that erecting a fence that prevents hikers, horses and dogs from falling into a flood control channel benefits the recreational users who are protected. Similarly, the signs, waste receptacles, and doggies bag dispensers clearly promoted public use. The evidence is undisputed that the City made improvements to the trail related to the public recreational use.
The undisputed evidence also establishes that the City cleaned and maintained the trail during the relevant period. The owner of the property from 1995 to 2002, Mr. Young, observed the City’s maintenance efforts. He stated in his declaration that he knew the City cleaned and maintained the trail, with City personnel clearing weeds and replenishing gravel (“the City maintained the trail as though it were part of the City’s property”).
The remaining prongs of the test set forth in Civil Code section 1009, subdivision (d) are also satisfied. Undisputed evidence establishes that Young was aware the public used the trail for hiking and other activities, and that the City maintained it. Yet, he never took any steps to prevent or prohibit these activities. It is also undisputed that this situation existed for more than five years.
At oral argument, the Buckners argued that the County’s grant of a permit to the City constituted “express permission” for the City to improve and maintain the property for public recreational use, precluding the application of section 1009, subdivision (d). The County, however, was the holder of an easement for flood control—nothing more. The County did not have the ability to confer on the City more rights than the County possessed. In particular, the County did not have the right to burden Lot 26 with an easement for public recreational use, over and above the easement for flood control.
The County made this perfectly clear in the permit it issued to the City which the Buckners quote in their opening brief. Paragraph 2c of the permit states: “2c. Permittee is reminded that portions of this District’s rights of way are held in the form of a flood control easement. It is the permittee’s responsibility to acquire any necessary right of way or permission from the underlying fee owners for recreational users of District right of way.” Similarly, paragraph F of the permit states: “This permit is valid only to the extent of District jurisdiction. Permits required by other interested agencies and consent of underlying fee owner of District easement lands are the responsibility of the permittee....”
Indeed, in their opening brief, the Buckners recognized that the County did not have the ability to give effective permission for an easement for recreational public use. They further acknowledged that the parties who did have the right were the property owners, who had not given permission for an easement for recreational public use: “Plaintiff OFFERED NO EVIDENCE such permission [for recreational use from underlying fee owners] was ever obtained from Defendants or their predecessors in interest.” Based on the foregoing, we reject the Buckner’s argument that the County granted the City express permission which precluded the application of section 1009, subdivision (d).
To the extent that the Buckners also argue that they had no way of knowing of the adverse use because the County had granted the City permission to use the property for recreational public use, we reject the argument on the same basis, as well as on the public nature of the permit and its disclaimers.
In sum, the undisputed evidence demonstrates that the City has fulfilled all of the prerequisites to obtain a public dedication under Civil Code section 1009, subdivision (d). It “used” the land “by an expenditure of public funds on visible improvements” in the form of a fence, signs, waste receptacles and doggies bag dispensers that were “related to the public use.” It also performed “cleaning [and] maintenance” of the land “related to the public use,” replenishing gravel and performing other cleaning activities. All of this was done in a manner so that the owner at the relevant time, Young, actually knew that the public was making use of his land by hiking and riding and walking dogs upon it and that the City was maintaining it. There is no evidence that Young gave “express permission” to the City or public for the use of the land. Young did not take “steps to enjoin, remove or prohibit such use.” The use continued for more than “five years,” commencing at least in 1995. The foregoing conferred upon the City a vested right to continue such use. That right vested before the Buckners purchased the property and sought to preclude such use with their gate.
The The Buckners concede in their opening brief that the City did not obtain express permission from the owners of Lot 26: “Plaintiff OFFERED NO EVIDENCE such permission [permission from underlying fee owners to use such lands over which the County had an easement] was ever obtained from Defendants or their predecessors in interest....[S]uch predecessors in interest never provided such permission....”
The Buckners ask us to apply section 1009, subdivision (b), which provides that no public use of property commencing after 1971, the effective date of the statute, shall ever ripen into a vested right to continue such use without an “express written irrevocable offer of dedication of such property to such use” by the property owner. This argument ignores that subdivision (b) expressly provides that it applies “except as otherwise provided in subdivision (d).” Subdivision (d) and not (b) applies in this case, because the City expended government funds to improve the trails and to further the public use of the property. While post-1971 public use alone will not ripen into a vested right of use over private property, subdivision (d) allows for such vesting after five years when, as here, the government spends its money to improve or maintain the property to further a public use. The Buckners also argue that some of the City’s evidence was inadmissible under subdivision (f)(2). However, subdivision (f)(2) only applies to “property described in subdivision (e).” Subdivision (e) is limited to “property which lies within 1,000 yards inland of the mean high tide line of the Pacific Ocean....” (Civ. Code, § 1009, subd. (e).) Subdivision (e) certainly does not include Monrovia, which is miles inland.
DISPOSITION
The judgment is affirmed. The City is to recover its costs on appeal.
We concur: MALLANO, P. J. ROTHSCHILD, J.