Dean v. County of Mariposa

Filed 8/23/06 Dean v. County of Mariposa CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Mariposa County. Wayne R. Parrish, Judge.

Michael J. Conklin for Plaintiffs and Appellants.

Thomas P. Gaurino, County Counsel; Best Best & Krieger, Gene Tanaka and Christina A. Hickey for Defendants and Respondents.

No appearance for Real Parties in Interest and Respondents.

This is an appeal from a judgment dismissing plaintiffs' action after the trial court sustained defendants' demurrer without leave to amend. As relevant to the present appeal, the case involves plaintiffs' efforts to force defendant County of Mariposa (the county) to intervene on plaintiffs' side in a dispute about improvement of an easement for ingress and egress that runs across plaintiffs' land. We conclude that plaintiffs have failed to state a cause of action and, on the facts pleaded and judicially noticed in the trial court, are unable to allege a cause of action if allowed further to amend their combined complaint and petition for writ of mandate (the complaint). As a result, we affirm the judgment.

Facts and Procedural History

Unit M-3 of Lake Don Pedro Subdivision was established by the filing and acceptance of a subdivision map in 1969. The subdivision is in the rural foothills of Tuolumne and Mariposa Counties. All of the lots involved in this appeal front onto Alamo Drive, which extends in a northerly direction along the western edge of lots owned by plaintiffs James B. Dean and Marion Ferri Dean. At the north end of plaintiffs' lot 1178, the road loops back to the east, then follows the terrain, curving in a generally southerly direction past lots 1149-1152. The eastern edge of plaintiffs' two lots, 1177 and 1178, abuts the western boundary of lots 1149 and 1150.

For reasons the parties never make clear, but apparently related to terrain-based difficulty in accessing lots 1149-1152 from their frontage on Alamo Drive, there is a written easement recorded in 1977, creating a nonexclusive 30-foot easement for ingress and egress burdening lots 1149-1152 and lots 1177-1178 and benefiting lots 1149-1152. The primary burden of this easement falls on plaintiffs' lot 1177: The easement begins in about the middle of the western edge of lot 1177 (at Alamo Drive) and proceeds diagonally to the northeast corner of lot 1177, where it cuts through a small portion of the southeast corner of lot 1178. The easement then traverses lots 1149-1152 near their western boundaries. (Again, the parties do not inform us why the easement bisects lot 1177, but we assume the terrain dictated the path of the easement.)

In addition to the easement for ingress and egress, the subdivider dedicated a 30-foot, nonexclusive easement for a pedestrian/equestrian trail along the western property line of (as relevant here) lots 1149-1152.

Since at least 1985, a dirt road followed the course of the easement across lots 1177 and 1178. In 2000, the owner of lots 1150-1152, Deerwood Corporation, decided to pave the road in the easement, apparently in anticipation of sale and development of the lots. In addition, Deerwood extended the paved road south across lots 1149-1152, across its own lots and with the permission of the owner of lot 1149. Deerwood began construction without county permits and without approval of the road's design by the California Board of Forestry through the California Department of Forestry and Fire Protection (CDF). After the road was substantially completed in 2003, the county issued certain permits. The county determined that notification of CDF was not necessary because the road provided only secondary access to the lots and, therefore, was not considered a fire road. It was also determined that the north-south portion of the paved road across lots 1149 and 1150 was within the boundaries of the pedestrian/equestrian easement for approximately 600 linear feet.

On May 12, 2004, plaintiffs sued Deerwood and others for trespass, quiet title, and other counts. On May 20, 2004, their tort claim against the county having been rejected by the county, plaintiffs filed a separate action against the county and several county officials seeking damages, injunctive relief, and writ of mandate, based on various theories of nuisance and violation of public trust. The cases were consolidated. Eventually, the demurrer of the county defendants was sustained without leave to amend and judgment was entered against plaintiffs and in favor of the county defendants on April 28, 2005. Plaintiffs timely appeal.

Standard of Review

The court sustained a demurrer to plaintiffs' complaint, without leave to amend. â€