Opinion
D073013
03-23-2018
VALLEY VIEW PARK MUTUAL WATER COMPANY, Plaintiff and Respondent, v. JACQUES POWERS et al., Defendants and Appellants.
Law Office of Paul A. Henreid and Paul A. Henreid for Defendants and Appellants. Thompson & Colegate, John A. Boyd and Susan Knock Beck for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Bernardino County Super. Ct. No. CIVDS 1108474) APPEAL from a judgment of the Superior Court of San Bernardino County, Donna Gunnell Garza, Judge. Affirmed. Law Office of Paul A. Henreid and Paul A. Henreid for Defendants and Appellants. Thompson & Colegate, John A. Boyd and Susan Knock Beck for Plaintiff and Respondent.
Defendants Jacques Powers and Angeletta Powers (together, defendants) own Lot 85 in the Valley View Park Subdivision (the Subdivision). Lot 85 is adjacent to real property owned by plaintiff Valley View Park Mutual Water Company (Valley View). Defendants appeal from a judgment in favor of Valley View that prevents defendants from using a dirt road (the Road) on Valley View's land to access defendants' undeveloped real property. Defendants contend the judgment should be reversed, asserting: (1) Valley View's complaint is barred by the statute of limitations and the doctrine of laches; (2) Valley View does not own the Road, but if it does own the Road, defendants have an easement by prescription or necessity; (3) certain documents entitle them to use the Road; and (4) the judgment constitutes an unconstitutional taking of their land. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Road and Lot 85
Valley View owns 86.8 acres of land in the Subdivision. The Subdivision was incorporated in 1923 and the Road does not appear on the Subdivision map. Valley View's land is unimproved except for equipment that provides water to the residents of the Subdivision. When the Subdivision was created the only vehicular access to Lot 85 and other lots in the lower portion of the Subdivision was by two roads: (1) Waterman Canyon Road (Waterman), a road maintained by the State of California (State), and (2) a nonmaintained County of San Bernardino (County) road.
In 1963 the State abandoned Waterman, the southerly access road to Lot 85. At that time the State offered to purchase the lots (including Lot 85) located in the southerly portion of the Subdivision. In 1965 J.H. Walker and Mildred Walker (the Walkers), the owners of Lot 85, declined to sell Lot 85 to the State. Instead, the Walkers, for consideration, by quit claim deed transferred to the State their interest in Waterman, the State maintained southerly access road that provided the only maintained access to Lot 85. The quit claim deed was recorded to provide constructive notice that legal access to Lot 85 from Waterman was eliminated.
In 1969 the County of San Bernardino unmaintained road, which was the northeasterly access to Lot 85 and the other lots located in the southern portion of the Subdivision, was washed out and became impassable. Thereafter, to access its water facilities, Valley View used the southerly access road, which had been abandoned by the State. Around 1973 Valley View graded the Road on its property, at its own expense, to give it access to its water facilities from the north. The Road has always been maintained as a private road, not open to the public, nor allowed to be used by any of the remaining owners of the lots in the southern portion of the Subdivision, including Lot 85. The Road starts at Lot 74 which is off Valley View Drive. Valley View owns an easement across Lot 74 (the Lot 74 easement) to allow ingress and egress from the Road to Valley View Drive. Since 1979 Valley View has maintained a locked fence across the Lot 74 easement. Since 1995 Valley View has also maintained a locked fence on its property leading to the Road at the southerly end of the Subdivision.
In 1968 Alice Stone owned Lot 85. In 1990 Stone transferred Lot 85 to Roy Hill. In 2004 defendants purchased unimproved Lot 85 from Hill. In 2006 Valley View notified defendants that they did not have a right to use or access the Road. In 2011 Jacques Powers and his agents removed Valley View's locked fence and gate blocking access to the Road from the Lot 74 easement and the locked gate at the southerly end of the Road. Valley View placed a chain across the entrances to the Road, but Jacques cut the chain.
This Action
In July 2011 Valley View commenced this action by filing a verified complaint for declaratory and injunctive relief, quiet title and conversion. Defendants, appearing in propria persona, answered the complaint and later filed a cross-complaint. After demurrers and a motion for judgment on the pleadings, the trial court ultimately entered judgment in favor of Valley View on defendants' operative cross-complaint.
In 2014 Valley View filed a motion for summary judgment or, alternatively, for summary adjudication of the claims alleged in its complaint. Defendants, appearing in propria persona, opposed the motion. Defendants did not object to any of Valley View's evidence. Valley View, however, objected to defendants' request for judicial notice and certain evidence contained in declarations filed by defendants.
The trial court denied summary judgment, but granted summary adjudication of Valley View's claims for declaratory and injunctive relief and to quiet title. In ruling on the motion, the court listed certain facts that were undisputed and ruled on Valley View's objections to defendants' evidence. Valley View later dismissed with prejudice the sole remaining cause of action for conversion.
Defendants then moved for leave to file an amended answer and for reconsideration of the motion for summary adjudication. The trial court denied the motion for reconsideration. Although there is no order in the appellate record showing the court's ruling on defendants' motion to amend their answer, the register of actions included in appellants' appendix does not reflect the filing of an amended answer. Thus, the trial court impliedly denied defendants' motion for leave to amend their answer. After additional delays, the trial court entered a judgment in favor of Valley View in December 2015. Defendants timely appealed.
DISCUSSION
I. STANDARD OF REVIEW
A plaintiff moving for summary judgment "bears the burden of persuasion that 'each element of' the 'cause of action' in question has been 'proved,' and hence that 'there is no defense' thereto." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; see Code Civ. Proc., § 437c, subd. (p)(1).) The moving plaintiff's initial burden of proof does not include disproving any affirmative defenses asserted by defendants. (Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 564.) If the plaintiff meets its burden, " 'the burden shifts to the defendant . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant . . . may not rely upon the mere allegations or denials' of his 'pleadings to show that a triable issue of material fact exists but, instead,' must 'set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.' " (Aguilar, supra, 25 Cal.4th at p. 849.)
Undesignated statutory references are to the Code of Civil Procedure.
"Although we independently assess the grant of summary judgment, our inquiry is subject to two constraints. Under the summary judgment statute, we examine the evidence submitted in connection with the summary judgment motion, with the exception of evidence to which objections have been appropriately sustained. [Citations.] . . . [¶] Furthermore, our review is governed by a fundamental principle of appellate procedure, namely, that ' "[a] judgment or order of the lower court is presumed correct," ' and thus, ' "error must be affirmatively shown." ' [Citation.] Under this principle, [the appellant] bear[s] the burden of establishing error on appeal, even though [the respondent] had the burden of proving its right to summary judgment before the trial court. [Citation.] For this reason, our review is limited to contentions adequately raised in the [appellant's] briefs." (Paslay v. State Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 644-645.)
II. PROCEDURAL ISSUES
A. General Issues
1. Forfeiture of issues not addressed in opening brief
Defendants' notice of appeal states that they are appealing from a judgment entered after an order granting summary adjudication. Defendants did not appeal from the orders denying their motion for leave to amend their answer or denying their motion for reconsideration. (Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493, 504 ["Jurisdiction of the Court of Appeal is limited in scope to the notice of appeal and the judgment appealed from."].) Even assuming, without deciding, that such orders are encompassed within the scope of the notice of appeal, defendants have forfeited review by failing to raise and discuss these rulings in their opening brief, so we shall not discuss these rulings. (Kelly v. CB&I Constructors, Inc. (2009) 179 Cal.App.4th 442, 452 [points not raised in opening brief will not be considered].)
2. Failure to designate an appropriate appellate record
It is the appellant's burden to provide an adequate record to assess error and an appellant's failure to provide an adequate record on an issue requires that the issue be resolved against the appellant. (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) An appellant's appendix must contain any filed document necessary for proper consideration of the issues, including any item upon which the appellant should reasonably assume the respondent will rely. (Cal. Rules of Court, rule 8.124(b)(1)(B).) Defendants failed to include in their appellant's appendix all documents upon which they should reasonably have assumed Valley View would rely. For example, defendants omitted their separate statement in opposition to the motion, Valley View's reply to their opposition, Valley View's objection to appellants' request for judicial notice, Valley View's evidentiary objections to appellants' evidence and the trial court order on those evidentiary objections. However, with the exception of defendants' opposition separate statement, Valley View's respondent's appendix supplements the record with the documents necessary for us to rule on this appeal. Accordingly, despite deficiencies in the record filed by defendants, we shall consider defendants' contentions on their merits.
Valley View complains that defendants pasted a modified version of page 244 of the appellant's appendix in page 19 of defendants' opening brief in an attempt to deceive this court. Valley View is correct that the map appearing on page 19 of defendants' opening brief contains a red line showing the Road. This red line does not appear on page 244 of defendants' appellant's appendix. While defendants should not have modified the map or, at a minimum, clearly noted the modification in their opening brief, we were not deceived by the modification. --------
B. Issues Specific to the Motion
1. Rulings sustaining evidentiary objections
In ruling on Valley View's motion for summary adjudication, the trial court sustained some of Valley View's objections to certain evidence presented by defendants in opposition to the motion. Defendants forfeited any contention of error regarding these rulings by failing to contest these evidentiary rulings in their opening brief. (Frittelli, Inc. v. 350 North Canon Drive. LP (2011) 202 Cal.App.4th 35, 41 [failure to attack trial court's evidentiary rulings on appeal forfeits any contentions of error regarding them].) Accordingly, in determining whether a triable issue of fact exists precluding summary adjudication, we do not consider any evidence to which the court sustained Valley View's evidentiary objection. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1181.)
2. Statute of limitations and laches
Valley View complains that defendants improperly raise issues for the first time in their opening brief. Specifically, it contends that the statute of limitations and doctrine of laches defenses are not properly before this court. We address each affirmative defense in turn.
A party pleading a statute of limitations defense must allege the specific statutory basis for the defense. (§ 458.) Alternatively, a party may allege facts showing that the action is barred and indicating that the lateness of the action is being urged as a defense. (Brown v. World Church (1969) 272 Cal.App.2d 684, 691.) "The failure to properly plead the statute of limitations waives the defense." (Martin v. Van Bergen (2012) 209 Cal.App.4th 84, 91.) "[I]f a defendant does not timely raise a limitations defense, it is waived regardless of how long the plaintiff has delayed." (Hambrecht & Quist Venture Partners v. American Medical Internat., Inc. (1995) 38 Cal.App.4th 1532, 1548.)
Here, defendants' answer alleged the statute of limitations as an affirmative defense arguing 21 different statutes applied to bar the action. However, in opposing Valley View's summary judgment motion, defendants did not argue the action was barred by the statute of limitations. In their opening brief, defendants contend that Valley View's claims were time-barred under sections 318 and 319. As Valley View correctly notes, defendants never asserted sections 318 and 319 in their verified answer to Valley View's pleading. Defendants' failure to properly plead sections 318 and 319 in their answer waived the defense. (Martin v. Van Bergen, supra, 209 Cal.App.4th at p. 91.)
Even assuming that the statute of limitations defense was properly pleaded in defendants' answer, under general rules of appellate procedure, defendants cannot assert a new theory of defense for the first time on appeal. (Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 997.) As another court noted, "[a]ppellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider. . . . Bait and switch on appeal not only subjects the parties to avoidable expense, but also wreaks havoc on a judicial system too burdened to retry cases on theories that could have been raised earlier." (JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 178.) Although there is a recognized exception to this rule for pure questions of law on uncontroverted records that require no factual determinations (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847), defendants' factual argument in their opening brief reveals that the statute of limitation defense is not a pure question of law. Accordingly, we do not consider defendants' statute of limitations argument.
"Laches is an affirmative defense, the burden of pleading and proving of which rests upon the party asserting it, unless laches is disclosed from the face of the complaint." (Utica Mut. Ins. Co. v. Monarch Ins. Co. (1967) 250 Cal.App.2d 538, 543.) Defendants alleged laches as an affirmative defense, but they failed to argue this defense in opposition to Valley View's motion. Defendants argued the defense for the first time in their opening brief. As such, this defense is forfeited. (Perez v. Grajales (2008) 169 Cal.App.4th 580, 591-592 ["arguments raised for the first time on appeal are generally deemed forfeited"]; DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 676 [possible theories that were not fully developed or factually presented to the trial court cannot create a "triable issue" on appeal].)
III. MERITS
Valley View alleged that it owns certain real property, that it graded the Road on the property, and that it owns an easement over Lot 74 to access its real property and the Road. Valley View sought to quiet title to its real property and the Lot 74 easement, free of any legal right or claim by defendants to use any portion of its real property, including the Road or the Lot 74 easement. It requested a judicial declaration that defendants do not have a right to use the Road or the Lot 74 easement for any purpose. Valley View also requested a permanent injunction enjoining defendants from trespassing on the Lot 74 easement and its real property, and enjoining defendants from destroying its fences, gates, and any other items on its property or the Lot 74 easement.
To prevail on its quiet title claim Valley View needed to establish title to the property in dispute. (§ 761.020; Hoeller v. Lloyd (1959) 173 Cal.App.2d 777, 778.) Valley View satisfied its initial burden by establishing title to the real property. Valley View also presented evidence showing its ownership of the Lot 74 easement. Based on this showing, Valley View was entitled to summary adjudication of its quiet title claim and its request for declaratory and injunctive relief unless defendants met their burden of creating a triable issue of material fact precluding summary adjudication of these claims. Accordingly, the burden shifted to defendants to show the existence of a triable issue of material fact or a defense to Valley View's claims. (§ 437c, subd. (p)(1).)
Defendants argued below that the Road was created in the mid-1800's as an alternative to Waterman, a toll road and switchbacks. Defendants claimed that Valley View was simply controlling a preexisting public road when it graded the Road and that the Road is open to the public under title 43 United States Code section 932. On appeal, defendants again assert that the Road is essential for transportation and public access under title 43 United States Code section 932 as adopted by the San Bernardino County Board of Supervisors in Resolution No. 2001-241 (Resolution 2001-241).
"[I]n 1866 Congress enacted the 'Federal Highway Grant Statute,' later codified as former section 932 of title 43 of the United States Code (Act of Congress 262, § 18, 14 Stat. 253; known as the 'Act of 1866'). The Act of 1866 provided: 'The right of way for construction of highways over public lands, not reserved for public uses, is hereby granted.' The statute was enacted to encourage and facilitate settlements through a continuing offer to dedicate public land as highways." (Hays v. Vanek (1989) 217 Cal.App.3d 271, 280, fn. omitted.) The Act of 1866 "was passed to protect persons who have already encroached upon the public domain without authorization but who have been allowed to remain there with the knowledge and acquiescence of the government and who should not in conscience be deemed trespassers. It was not intended to grant rights, but instead to give legitimacy to an existing status otherwise indefensible." (United States v. Dunn (9th Cir. 1973) 478 F.2d 443, 445, fn. 2.) The Act of 1866 was repealed in 1976. (Hays v. Vanek, supra, 217 Cal.App.3d at p. 280, fn. 2.)
In 2001 the San Bernardino County Board of Supervisors passed Resolution 2001-241 to reaffirm rights-of-way in accordance with the Act of 1866. Resolution 2001-241 provides that "it is the policy of the County to ensure that all rights-of-way acquired pursuant to [the Act of 1866] be retained in perpetuity for the use and benefit of the public unless abandoned with applicable law." Resolution 2001-241 states certain conditions that a road must meet to qualify as a right-of-way under the Act of 1866. These conditions are as follows:
"a. Use by County or public with the intention of creating a public highway over public lands; or
"b. Construction or maintenance of a highway; or
"c. Inclusion of the right-of-way in a State, County or Municipal road system, plat, description, or map of county roads; or
"d. Expenditure of any public funds on the highway; or
"e. Execution of a Memorandum of Understanding or other agreement with any other or private entity or agency of the Federal Government that recognizes the right or obligation of the County to construct or maintain a highway or a portion of a highway; or
"f. Any other act by the County or the public consistent with State or Federal Law indicating acceptance of a right-of-way; or
"g. Used by the public for a period required by the California Civil Code."
In their opening brief, defendants' did not argue that they presented evidence showing the satisfaction of any of these conditions. In their opposition points and authorities defendants argued that the Road has been in existence for decades and used by the public. They also asserted that an assessor's map shows the Road. Accordingly, defendants appear to rely on paragraphs a and b of Resolution 2001-241 which require, respectively, "[u]se by County or public with the intention of creating a public highway over public lands" or "[i]nclusion of the right-of-way in a State, County or Municipal road system, plat, description, or map of county roads." We have reviewed the evidence submitted by defendants in opposition to the motion, excluding that evidence for which the trial court sustained Valley View's evidentiary objections. Defendants failed to present admissible evidence showing use of the Road by the County or the public with the intent to create a public highway, or a map of a State, County or Municipal road system showing the Road.
Defendants' argument that they have a prescriptive easement over the Road invokes paragraph g of Resolution 2001-241, which requires use by the public for a period required by the California Civil Code. To establish a prescriptive easement, a plaintiff must show "use of the property which has been open, notorious, continuous and adverse for an uninterrupted period of five years." (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570; § 321.) Here, defendants cannot show the existence of a prescriptive easement because their use of the Road has not been continuous for an uninterrupted period of five years. Rather, Valley View has maintained a fence blocking the Road since 1996. Additionally, since the time defendants took ownership of Lot 85 in 2004 to the filing of this action in 2011, Valley View did not consent to defendants' use of the Road, has maintained locked gates and fences at both ends of the Road, and did not provide defendants with keys to the locks. Thus, Valley View prevented defendants and defendants' predecessor from continuous use of the Road.
Defendants' citation to allegations in their cross-complaint regarding use of the Road by the prior owner of Lot 85 is insufficient to create a triable issue of material fact. (§ 437c, subd. (p)(1) ["The defendant [] shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto."].) Although defendants also provided the declaration of a prior owner of Lot 85, this declaration does not contain admissible evidence supporting the existence of a prescriptive easement. Accordingly, defendants failed to meet their burden of showing the existence of a triable issue of material fact regarding the existence of a prescriptive easement.
While not included as an affirmative defense in their verified answer, in opposing Valley View's motion, defendants also argued that they had an easement by necessity. Defendants again argued the existence of an easement by necessity in their opening brief. Assuming without deciding that this issue is properly raised in defendants' answer, we reject it on the merits because defendants failed to show a material triable issue of fact.
An easement by necessity is created when (1) a common grantor (2) conveys parcels to separate owners (3) causing one parcel to become completely landlocked. (Murphy v. Burch (2009) 46 Cal.4th 157, 162-163; Moores v. Walsh (1995) 38 Cal.App.4th 1046, 1049.) Here, when the Subdivision was created in 1923 and Lot 85 subsequently conveyed, the conveyance did not leave Lot 85 landlocked because Waterman existed to provide access Lot 85. After the necessity first arose when Waterman was vacated, defendants provided no evidence showing a unity of ownership of the dominant and servient parcels. Thus, an easement by necessity cannot exist. As another court stated, an easement by necessity "will not exist where a man can get to his property through his own land. That the way over his own land is too steep or too narrow, or that other and like difficulties exist, does not alter the case, and it is only where there is no way through his own land that a grantee can claim a right over that of his grantor. It must also appear that the grantee has no other way." (Kripp v. Curtis (1886) 71 Cal. 62, 65.)
Defendants argued below that the map for the Subdivision dedicated to public use "all roads, lanes, drives and highways shown and not heretofore for dedicated" and that this is a dedication under Government Code section 66439, part of the Subdivision Map Act (the Act, Gov. Code, § 66410 et. seq.). Defendants repeat this argument in their opening brief, asserting that the Road was dedicated to public use under Valley View's subdivision map.
The Act "has regulated the division of land in California since the nineteenth century. 'The first Subdivision Map Act was enacted in 1893. Subsequent versions of the Act were enacted in 1907, 1929, 1937 and 1943. The . . . latest version of the Act was enacted as part of the Government Code in 1974.' [Citation.] 'All versions of the Act enacted subsequent to the first Act in 1893 contained grandfather clauses exempting from the current Act those subdivisions established in compliance with laws in effect when recorded.' " (van't Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 563 (van't Rood).)
The current version of the Act requires a final (subdivision) map for subdivisions of five or more parcels. (Gov. Code, § 66426.) Government Code section 66439, subdivision (a), provides that dedications of interests in "real property for specified public purposes shall be made by a statement on the final map, signed and acknowledged by those parties having any record title interest in the real property being subdivided, subject to the provisions of [Government Code] Section 66436."
The Subdivision, however, is exempt from the current version of the Act and is governed by the version of the Act in existence in 1923. (van't Rood, supra, 113 Cal.App.4th at p. 563.) Defendants presented no argument that the 1923 version of the Act contained a provision similar to subdivision (a) of Government Code section 66436. We acquired the version of the Act existing in 1923 (the 1907 Act). The 1907 Act required that whenever a subdivision is created for sale a "cloth" must be recorded in the county where the land is situated setting forth certain information, including the dimensions and boundaries of all parcels dedicated for public uses, such as highways.
Section 4 of the 1907 Act required the governing body having control over public highways endorse on the map "which of the public highways offered by said map or plat they accept on behalf of the public, and thereupon such highways as have been so accepted and no others, shall be and become dedicated to the public use." In 1921 section 4 of the 1907 Act was amended. (Stat. 1921, ch. 592.) Section 4 of the 1921 amendment similarly provided that the governing body endorse on the map "which of the highways so offered for dedication are accepted on behalf of the public, and thereupon such highways which have been so accepted, and no others, shall be and become dedicated to the public use."
As defendants correctly note, the recorded subdivision map for the Subdivision expressly dedicated to public use "all roads, lanes, drives and highways shown and not heretofore for dedicated." The recorded subdivision map for the Subdivision, however, does not show the Road. Accordingly, defendants' argument that the subdivision map for the Subdivision dedicated the Road to public use fails.
In their opening brief defendants argue that the general public and all other property owners along Waterman west of Upper Bonnie Creek have legal access to the Road pursuant to San Bernardino County Board of Supervisors Resolution No. 2004-309 (Resolution 2004-309). Although defendants cited Resolution 2004-309 in their opposition points and authorities, they presented no argument showing how it constituted a defense to Valley View's motion. In their opening brief, defendants cite Resolution 2004-309 for the proposition that the County law declares that the Road is open to the general public. As we shall explain, defendants' contention is based on a misreading of Resolution 2004-309.
A city may abandon a street or highway by resolution of its legislative body, after a noticed vacation hearing upon finding that the street or highway is no longer necessary. (Sts. & Hy. Code, § 8324.) A legislative body may summarily vacate a street or highway if the thoroughfare "has been superseded by relocation" (id., § 8330, subd. (a)), or has been "impassable" (id., § 8331, subd. (a)) for five consecutive years, or the vacation is pursuant to an agreement with the state department of transportation (id., §§ 8332-8333), and the local legislative body adopts a "resolution of vacation" conforming to statutory requirements (id., § 8335, subd. (a)(1)). The vacated street or highway no longer constitutes a street or highway after recordation of the resolution. (Id, § 8335, subd. (b)(4).)
In Resolution 2004-309 the Board of Supervisors of the County of San Bernardino resolved to vacate a portion of Waterman by declaring it an excess highway right-of-way under the Streets and Highways Code. Resolution 2004-309 stated that Waterman was a 70-foot-wide street, with the north one-half of the street 40 feet wide and the south one-half of the street 30 feet wide. The west one-half of the south portion of Waterman was previously vacated in 1984. Landslides in 1969 created a 30-foot cut in Waterman; the cut is known as "Upper Bonnie Creek." Resolution 2004-309 vacated an additional south portion of Waterman, east of Upper Bonnie Creek.
Defendants argue that the north one-half of Waterman described in Resolution 2004-309 is actually the Road graded by Valley View. Defendants are mistaken. First, defendants cite to a portion of the complaint out of context. Valley View alleged in its complaint that it "graded a new road on [its] own property, giving them access to their water facilities from the north, off of Valley View Drive." Valley View's reference to "north" does not refer to the north 40-foot-wide portion of Waterman. The map attached as exhibit B to Resolution 2004-309 clearly shows the vacated portions of Waterman are located on the 40-foot-wide south portion of Waterman. Defendants' property and the Road graded by Valley View is west of the vacated portions of Waterman shown on exhibit B to Resolution 2004-309. Nothing in Resolution 2004-309 addresses the Road.
Finally, defendants assert that the judicial branch is unconstitutionally taking their real property because the trial court ignored the law. "California and federal courts long ago agreed that nothing in the summary judgment procedure is inherently unconstitutional." (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 70.) "If the facts are undisputed . . . then summary judgment may be entered on issues that otherwise would have been submitted to the jury. That is the function of summary judgment proceedings." (Davis v. Consolidated Freightways (1994) 29 Cal.App.4th 354, 366.)
Here, as our preceding discussion shows, the trial court properly summarily adjudicated Valley View's quiet title claim and requests for declaratory and injunctive relief because Valley View met its initial burden of proof on the motion and defendants failed to show the existence of a triable issue of material fact or a defense to Valley View's claims. (§ 437c, subd. (p)(1).) Accordingly, we decline to further consider defendants' contention that the granting of the motion amounted to an unconstitutional taking of their property.
III. REQUEST FOR JUDICIAL NOTICE
Defendants filed a request seeking judicial notice of six documents; namely: +(1) Subdivision Map of the Valley View Park Subdivision dated February 1, 1923; (2) plaintiff Valley View Park Mutual Water Company's board meeting minutes from March 26, 1979; (3) grant deed from Roy Hill to Jacques Powers recorded May 28, 2004; (4) San Bernardino County Board of Supervisor's Resolution 2004-309; (5) Valley View Park Mutual Water Company's complaint; and (6) San Bernardino Superior Court transcript of oral hearing. By order dated July 28, 2016, this court denied the request as to exhibits 5 and 6, noting these documents should be part of the record on appeal, but reserved ruling on exhibits 1 to 4. Review of the record shows that exhibits 1 to 4 are already part of the record on appeal. Exhibits 1, 2 and 4 are included in the appellant's appendix and exhibit 3 is in the third volume of the respondent's appendix. Accordingly, defendants' request for judicial notice of exhibits 1 to 4 is denied.
IV. ATTORNEY FEES
In its respondent's brief Valley View requests that we award it attorney fees for defending this appeal, citing California Rules of Court, rule 8.276(a)(4). California Rules of Court, rule 8.276(a)(4) gives us discretionary authority to award sanctions against a party or an attorney for "[c]ommitting any [] unreasonable violation" of the rules of court. Sanctions, however, cannot be sought in a respondent's brief. (Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 919.) Because Valley View has not followed proper procedures for seeking an award of appellate attorney fees as a sanction, we decline its request for sanctions. (See Cal. Rules of Court, rule 8.276(b)(1).)
DISPOSITION
The judgment is affirmed. Valley View is entitled to its costs on appeal.
NARES, J. WE CONCUR: HUFFMAN, Acting P. J. DATO, J.