Filed 3/18/20 Sohn v. County of Mariposa CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

DANIEL SOHN et al.,

Plaintiffs and Appellants,

v.

COUNTY OF MARIPOSA et al.,

Defendants and Respondents.

F076677

(Super. Ct. No. 10841)

OPINION

APPEAL from a judgment of the Superior Court of Mariposa County. Leslie C. Nichols, Judge. (Retired Judge of the Santa Clara Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Mazur & Mazur and Janice R. Mazur for Plaintiffs and Appellants.

Abbott & Kindermann, William W. Abbott and Glen C. Hansen for Defendants and Respondents.

-ooOoo-

Plaintiffs Daniel and Juliet Sohn appeal from a September 15, 2017 judgment of dismissal following the sustention of a demurrer without leave to amend their complaint. In said complaint, citing the federal Civil Rights Act of 1871 (42 U.S.C. § 1983), the Sohns alleged they had been deprived of their constitutional rights by defendants County of Mariposa; Mariposa County Department of Public Works; Tony Stobbe, in his former official capacity as director of public works; Gary Taylor, in his former official capacity as deputy director of public works; Russell Marks, in his official capacity as public works surveyor; and Mike Ziegenfuss, in his former official capacity as public works road foreman.

On appeal, the Sohns acknowledge the complaint failed to state facts sufficient to constitute a section 1983 claim. However, they argue the complaint can be amended to cure this defect. The Sohns’ proposed amendments to their complaint are barred by the statute of limitations. Accordingly, we find the superior court did not abuse its discretion when it sustained County defendants’ demurrer without leave to amend. We affirm the judgment.

BACKGROUND

In 1980, Gary Bishop subdivided a contiguous piece of property into four parcels lettered A through D. The January 21, 1980 “PARCEL MAP [¶] FOR [¶] GARY BISHOP,” recorded on page 10 of Book 17 of County’s Parcel Maps, showed Parcels A, B, and C each comprised between 5.2 and 5.6 acres. Parcel D, on the other hand, comprised 21.4 acres. The Bishop map also contained the following language:

“NOTE: [¶] ALL EASEMENTS SHOWN ON THIS MAP ARE 60’ WIDE NON-EXCLUSIVE EASEMENTS FOR PUBLIC USE AND PUBLIC UTILITIES: OFFERED FOR DEDICATION BY THIS MAP; SEE OWNERS CERTIFICATE . . . .”

“OWNER[:] [¶] The UNDERSIGNED, being the parties having a record title interest in the land as plotted by this map, hereby consent to the preparation and recordation of this map, and offer for dedication to . . . County all easements as shown on this map and so marked as offered for dedication. This offer of dedication to . . . County shall remain open until either accepted or rejected, in writing, by . . . County.”

Later that year, Dennis Huntley acquired the area identified as Parcel D on the Bishop map and subdivided it into four parcels lettered A through D. The June 4, 1980 “PARCEL MAP [¶] FOR [¶] DENNIS HUNTLEY,” recorded on page 24 of Book 17 of County’s Parcel Maps, showed Parcels A, B, C, and D each comprised between 5.1 and 6.1 acres. Parcels A and D bordered land labeled “(BISHOP).” The Huntley map also contained the following language:

“60’ NON-EXCLUSIVE P.U. & ACCESS EASEMENT BY PARCEL MAP BOOK 17 PAGE 10.”

“60’ WIDE NON-EXCLUSIVE P.U. & ACCESS EASEMENT OFFERED FOR DEDICATION BY THIS MAP.”

“OWNER[:] [¶] THE UNDERSIGNED, BEING THE PARTIES HAVING A RECORD TITLE INTEREST IN THE LAND AS PLOTTED BY THIS MAP, HEREBY CONSENT TO THE PREPARATION AND RECORDATION OF THIS MAP, AND OFFER FOR DEDICATION TO . . . COUNTY ALL EASEMENTS AS SHOWN ON THIS MAP AND SO MARKED AS OFFERED FOR DEDICATION. THESE OFFERS OF DEDICATION TO . . . COUNTY SHALL REMAIN OPEN UNTIL EITHER ACCEPTED OR REJECTED, IN WRITING[,] BY . . . COUNTY.”

On April 5, 1991, County recorded a document numbered 911744 and titled “ACCEPTANCE OF DEDICATION.” It read in part:

“This is to certify that the County Engineer hereby accepts on behalf of the public, the Dedication of Easements along the non-County maintained roads as shown on: [¶] . . . [¶]

“that certain ‘Parcel Map for GARY BISHOP’, recorded JANUARY 21, 1980 in Book 17 of Parcel Maps at Page 10, Mariposa County Records; and marked as offered for dedication. [¶] . . . [¶]

“that certain ‘Parcel Map for DENNIS HUNTLEY’, recorded APRIL 6, 1980 in Book 17 of Parcel Maps at Page 24, Mariposa County Records; and marked as offered for dedication.”

On June 28, 1999, via grant deed, the Sohns acquired the area described as “Parcel A as shown on the Parcel Map for Dennis Huntley filed June 4, 1980 in Book 17 of Parcel Maps at Page 24, Mariposa County Records.” The strip of land offered for dedication by the Bishop and Huntley maps lies in part on this property. At some point, Vista Grande Way, a road approximately 20 feet wide, was constructed on the strip.

In a letter dated May 28, 2004, County responded to the Sohns’ “request for an investigation . . . regarding a fence that has been constructed within the access easement for Vista Grande Way.” The letter read in part:

“1. Property owners . . . Fredric and Muriel Temps . . . installed fencing, landscaping, and an address structure in a road easement . . . for Vista Grande Way. . . .

“2. The road easement was created by a recorded parcel map (recorded in Book 17 of Parcel Maps at Page 10) and offered for dedication for public access, utilities and maintenance.

“3. The offer of dedication was accepted by . . . County for public access and public utilities, but rejected for public maintenance. [¶] . . . [¶]

“If a dedicated easement is not accepted for public maintenance (as in this case), maintenance is the responsibility of the property owners who use the easement. [¶] . . . [¶]

“. . . [C]ounty is not involved with privately maintained roads once a land division parcel map is approved. . . . In the past, . . . [C]ounty has . . . not been involved with regulating fencing in privately maintained easements. Thus, this is a civil matter between property owners and is based upon the fact that . . . [C]ounty is not involved and has no permit authority for fencing in privately maintained easements. . . .”

In a letter to Stobbe dated May 1, 2015, counsel for the Sohns—who were named as defendants in an interference-with-easement lawsuit filed on April 15, 2015 — remarked:

“There appears to be some confusion . . . in that as far as I can see, Vista Grande Way is not covered by a public easement. In referring to the Parcel Map for Dennis Hu[n]tley, recorded in Mariposa County Recorder’s Office, at Book 17, page 24, that Parcel Map does refer to a 60’ non-exclusive public utility and access easement, but the term public easement is not used. Is there some other instrument upon which you are basing your contention that it is a public easement and, thus, under your jurisdiction?”

Shortly thereafter, in a letter to the Sohns’ counsel, Stobbe replied:

“Vista Grande [W]ay is clearly covered by a public easement. Your letter references Parcel Map Book 17 Page 24, which covers the end portion of Vista Grande, and notes the easement as a ‘60[-foot] wide non-exclusive P.U. & access easement offered for dedication by this map.” You may have overlooked that just above that note is another, pointing to the rest of Vista Grande, which states ‘60[-foot] non-exclusive P.U. & access easement by Parcel Map Book 17 Page 10.’ Parcel Map Book 17 Page 10 contains the following note ‘All easements shown on this map are 60[-foot] wide non-exclusive easements for public use and public utilities.’

“The posts and reflectors [installed by the Sohns] are a traffic hazard and are within both the easement and the existing roadway. To be clear: all posts, signs, reflectors, and any other obstructions within the boundaries of the easement are to be removed by May 26 or they will be removed by . . . County. This notice is being served on you as attorney for Mr. and Mrs. Sohn pursuant to Mariposa County Code Chapter 12.04.”

In a letter to County counsel dated August 26, 2015, counsel for the Sohns stated:

“As you are apparently aware, there is some litigation going on between my clients on the one side and some of their neighbors on the private roadway known as Vista Grande Way, on the other. One of the issues that has surfaced in the litigation and dispute is the exact role of . . . County with regard to the roadway and the easement in which the roadway lies. Specifically, it is my understanding that in 1980 when the area was first developed, the developer did offer for dedication a 60 foot wide easement for . . . public access and maintenance. However, it is also my information that the Board of Supervisors declined to accept the offer from the developer. Such conduct certainly was not unusual in that . . . rural counties did not wish to be burdened with the responsibility of maintenance of these easements and roadways; thus, they became, in essence, private roads.

“My understanding and experience has been whenever the counties refused to accept . . . the responsibility that those roadways did revert to private roadways and the counties basically took no further interest in or had any involvement in those roadways. In that vein, I refer you to a letter sent to my clients in May, 2004, from . . . County . . . . At that time, the letter was prompted by a concern that my clients had regarding various fencing and landscaping that . . . [their] neighbors had constructed. [County] . . . indicated in [the] letter that . . . County had no interest in the easement and would not take any action. The Sohns then, over the next ten years, relied on that letter . . . .”

On November 4, 2016, the Sohns filed their original complaint. On April 18, 2017, they filed the operative complaint in which they pled multiple causes of action, including one for damages under section 1983 against County defendants. The Sohns detailed:

“The acts that are the subject of [the section 1983] claim occurred on or after May 26, 2015, in Mariposa County, California. At that time and place, [County] Defendants interfered with the exercise and enjoyment of Plaintiff[s’] civil rights as guaranteed by the United States Constitution . . . . Specifically, [County] Defendants . . . interfered with Plaintiffs’ civil rights, in that [County] Defendants, or their agents acting under color of law, came on to Plaintiffs’ property . . . and removed personal property of Plaintiffs[’], violating Plaintiffs’ Constitutional rights to be free of an unlawful search and seizure and free from a deprivation of property without due process of law. [¶] . . . As a direct and proximate result of the conduct of [County] Defendants, . . . Plaintiffs have suffered and will continue to suffer a loss of access and use of their real property and loss of personal property.” (Boldface omitted.)

County defendants filed a demurrer on June 23, 2017. They asserted the complaint failed to state facts sufficient to constitute each cause of action. With respect to the section 1983 claim, County defendants pointed out the complaint failed to allege (1) the claimed constitutional violations were caused by official policy, regulation, custom, or practice; and (2) Stobbe, Taylor, Marks, and/or Ziegenfuss possessed final policymaking authority.

On July 25, 2017, the Sohns filed their opposition to the demurrer. Regarding the section 1983 claim, they stated:

“Plaintiffs agree . . . that for the reasons stated in the demurrer the plaintiffs . . . have failed to state a cause of action. Plaintiffs request leave of court to amend.”

A hearing on the demurrer was held on September 15, 2017. There, the Sohns’ counsel requested leave to amend the complaint. Following the hearing, in an order filed on the same day, the court sustained the general demurrer “to the entire [complaint]” without leave to amend. The judgment of dismissal was also entered on the same day.

DISCUSSION

On appeal, the Sohns challenge the superior court’s ruling solely as it pertains to the section 1983 claim against County defendants.

I. Standard of review
II.
“A demurrer tests the legal sufficiency of the complaint.” (In re Social Services Payment Cases (2008) 166 Cal.App.4th 1249, 1263.) “In reviewing a demurrer that is sustained without leave to amend, an appellate court assumes the truth of (1) all facts properly pleaded by the plaintiff, (2) all facts contained in exhibits to the complaint, (3) all facts that are properly the subject of judicial notice, and (4) all facts that reasonably may be inferred from the foregoing facts.” (Neilson v. City of California City (2005) 133 Cal.App.4th 1296, 1305.) “The reviewing court does not assume the truth of contentions, deductions or conclusions of law.” (Ibid.) Also, “we may disregard allegations which are contrary to law or to a fact of which judicial notice may be taken.” (In re Social Services Payment Cases, supra, at p. 1263.)

“On appeal from a judgment of dismissal entered after a demurrer has been sustained without leave to amend, unless failure to grant leave to amend was an abuse of discretion, the appellate court must affirm the judgment if it is correct on any theory. [Citations.] If there is a reasonable possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend. [Citation.]” (Hendy v. Losse (1991) 54 Cal.3d 723, 742.) “ ‘The plaintiff has the burden of proving that [an] amendment would cure the legal defect, and may [even] meet this burden [for the first time] on appeal.’ [Citations.]” (Sierra Palms Homeowners Assn. v. Metro Gold Line Foothill Extension Construction Authority (2018) 19 Cal.App.5th 1127, 1132.)

III. Analysis
IV.
Per section 1983, “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .”

The Sohns concede their complaint failed to state facts sufficient to constitute a section 1983 claim but insist the court should have granted their request for leave to amend. They identify two ways to cure the defect. First, the complaint would be amended to allege County did not properly accept either the Bishop map’s or the Huntley map’s offer to dedicate the public access and public utility easements; therefore, County defendants had no legal authority to enter the Sohns’ real property on May 26, 2015. The Sohns state in their opening brief:

“As envisioned, the Subdivision Map Act[ ] (‘SMA’) . . . was enacted to provide a relatively uniform way that division of property would be regulated within the State of California. Section 66411 of the SMA delegated the responsibility of ‘[R]egulation and control of the design and improvement of subdivisions . . .’ to the ‘. . . legislative bodies of local agencies’ which were to ‘. . . regulate and control subdivisions for which this division requires a tentative and final or parcel map. Such ordinance shall specifically provide for proper grading and erosion control, including the prevention of sedimentation or damage to off-site property.’ . . . County has provided its regulation and control of subdivisions in Mariposa County Code . . . Title 16.

“. . . [S]ection 66440 of the . . . SMA requires the legislative body, (in this instance, . . . County Board of Supervisors), to either ‘accept, accept subject to improvements, or reject any Offer of Dedication’ at the time the final map is approved and to record this decision on the final map prior to or concurrent with the filing of the final parcel map.

“Government Code section 66447 requires that all dedications, or offers of dedication must be noticed by certificate on the parcel map, or separate instrument, and must be recorded concurrently with, or prior to the parcel map being filed for record.

“In this case, it is undisputed that . . . County did not ‘accept, accept subject to improvements, or reject’ either the Bishop or the Huntley Offers of Dedication at the time their final maps were approved and it did not record any such decision on the final maps prior to or concurrent with the filing of the final parcel maps as required by Government Code section[] 66440. Nor were the offers of dedication noticed by certificate on the parcel maps, or separate instrument, recorded concurrently with, or prior to the parcel map being filed for record as required by Government Code section 66447.” (Fns. omitted.)

Second, the complaint would be amended to allege County defendants conspired with Bishop, Huntley, and other developers and/or subdividers between 1977 and 1987 to knowingly and intentionally circumvent the Subdivision Map Act by exploiting the “ ‘minor subdivision’ ” exception under Government Code section 66412.5. The Sohns state in their opening brief:

“Plaintiffs allege that prior to and subsequent to 1980, developers of property in Mariposa County, in an effort to circumvent the requirement that they comply with the Subdivision Map Act, began a practice of creating what has become known to some as ‘4 x 4’s.’ Under this scheme, the developer/subdivider would submit for approval a parcel map which sought to subdivide the developer’s property into four parcels. Three of the parcels would be of relative uniform size whereas the fourth parcel would be substantially larger. Shortly after the subdivision into four parcels, the largest parcel was transferred to another person who would submit for approval another parcel map dividing that larger parcel into four parcels of substantially the same size as the three smaller parcels in the first parcel map. Because each of the subdivisions would be made up of only four parcels [or fewer], each would be treated by . . . County as a ‘minor subdivision’ which did not require full compliance with the SMA. The end result was that the original contiguous parcel of land would, over a short period of time, be divided into seven parcels without compliance with the SMA, resulting in a loss of the SMA’s protections to the subsequent purchasers of the lots.

“This is precisely what happened in plaintiffs’ subdivision. [¶] It is undisputed that in January, 1980, Gary Bishop subdivided a previously contiguous piece of property into four pieces of property in which Parcel A consisted of approximately 5.418 acres; Parcel B consisted of approximately 5.226 acres; Parcel C consisted of approximately 5.641 acres, whereas Parcel D consisted of approximately 21.424 acres. The map was ‘approved’ and recorded on January 21, 1980. [Citation.]

“Two months later, in March, 1980, shortly after the Bishop subdivision was recorded, Dennis Huntley became the owner of Parcel D. He applied to . . . County to have Parcel D subdivided by way of a parcel map. This subdivision was approved and the map recorded on June 6, 1980, a mere 135 days after the recording of the Bishop map. [Citation.] The end result is that the original 21.424 acres of former Parcel D is divided into four, substantially equal five acre parcels. Accordingly, in less than six months, a subdivision of seven parcels was created without compliance with the SMA.

“Plaintiffs further allege and seek to amend to allege that between 1977 and 1987 there were dozens of occasions in which similar ‘4 x 4’ subdivisions were approved by . . . County, compelling evidence that . . . County and the developers of these subdivisions were engaged in a knowing and intentional scheme to circumvent the requirements of the SMA and that they engaged in overt acts to accomplish this scheme.”

County defendants contend, inter alia, notwithstanding the aforementioned amendments, the Sohns’ section 1983 claim still would have been barred by the applicable statute of limitations. The Sohns counter (1) “they did not know of . . . County’s purported acceptance of the 1980 offers of dedication until sometime after May of 2015”; and (2) “they did not become aware until approximately late March of 2016, that . . . the division of a large parcel into three smaller parcels and one larger one, followed very soon after by the division of the large parcel into four smaller parcels . . . , was repeated, with the approval of . . . County, many dozens of times over the course of several years.”

“It is well-established that claims brought under [section] 1983 borrow the forum state’s statute of limitations for personal injury claims, [citation], and in California, that limitations period is two years. [Citation.]” (Action Apartment Assn. v. Santa Monica Rent Control Opinion Bd. (9th Cir. 2007) 509 F.3d 1020, 1026; see McDougal v. County of Imperial (9th Cir. 1991) 942 F.2d 668, 673-674 [“An action under [title 42 United States Code section] 1985(3) alleging a conspiracy to deprive a person of constitutional rights is designed to remedy the same types of harms as the deprivations actionable under [section] 1983. Accordingly, . . . suits under [title 42 United States Code section] 1985(3) are also best characterized as personal injury actions and are governed by the same statute of limitations as actions under [section] 1983.”].) “ ‘Generally, the statute of limitations begins to run when a potential plaintiff knows or has reason to know of the asserted injury.’ [Citation.]” (Action Apartment Assn. v. Santa Monica Rent Control Opinion Bd., supra, at pp. 1026-1027; see Gutierrez v. Mofid (1985) 39 Cal.3d 892, 897 [“[A] limitations period dependent on discovery of the cause of action begins to run no later than the time the plaintiff learns, or should have learned, the facts essential to his claim.”].) “The applicable principle has been expressed as follows: ‘when the plaintiff has notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation . . . the statute commences to run.’ [Citation.]” (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 101.) “[F]or a demurrer based on the statute of limitations to be sustained, the untimeliness of the lawsuit must clearly and affirmatively appear on the face of the complaint and matters judicially noticed.” (Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408, 420.)

The Sohns’ first proposed amendment would allege (1) County did not accept the offers of dedication at the time the final Bishop and Huntley maps were approved and did not record this decision on these maps prior to or concurrent with their filing; (2) the offers of dedication were not noticed by certificate on the Bishop and Huntley maps; and (3) the offers of dedication were not noticed by separate instrument recorded concurrently with, or prior to the Bishop and Huntley maps being filed for record. Their second proposed amendment would allege County defendants conspired with Bishop and Huntley, inter alios, to engage in “4 x 4” schemes, as explained above. (See ante, at pp. 9-10.)

The documents before us demonstrate the Bishop and Huntley maps were recorded in 1980. (See Civ. Code, § 1213 [conveyance of real property recorded as prescribed by law provides constructive notice of its contents to subsequent purchasers]; see also John Taft Corp. v. Advisory Agency (1984) 161 Cal.App.3d 749, 756 [recorded subdivision maps “partake[] of the qualifications of a conveyance”].) The June 28, 1999 grant deed explicitly described the Sohns’ acquired property as “Parcel A as shown on the Parcel Map for Dennis Huntley filed June 4, 1980 in Book 17 of Parcel Maps at Page 24, Mariposa County Records.” In turn, the Huntley map indicated the Sohns’ property bordered “(BISHOP)” land and referred to public access and public utility easements “BY PARCEL MAP BOOK 17 PAGE 10,” i.e., the Bishop map. On even a cursory examination, the Bishop and Huntley maps openly display how Bishop’s original property was apportioned into seven parcels of roughly similar size. Moreover, assuming the facts pleaded by the Sohns are true, these maps would not have a recording of County’s acceptance of their offers of dedication, a certificate of said offers, or a separate instrument of said offers recorded concurrently with or prior to the maps’ filing. (See Caito v. United California Bank (1978) 20 Cal.3d 694, 702 [“A recorded instrument . . . [gives] constructive notice . . . of its own contents and of other documents referred to by it.”]; American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, 1020-1021 [rule of constructive notice extends to whatever knowledge would be gained from investigating document referenced in recorded instrument].)

With respect to their first proposed amendment, the Sohns invoke the doctrine of equitable estoppel, arguing they “justifiably relied on . . . County’s [May 28,] 2004 representation that it had ‘accepted’ the offered parcel map easement” and “had no reason . . . to doubt the accuracy of . . . County’s assertion and no reason to investigate it.” “The doctrine of equitable estoppel is founded on concepts of equity and fair dealing. It provides that a person may not deny the existence of a state of facts if he intentionally led another to believe a particular circumstance to be true and to rely upon such belief to his detriment. The elements of the doctrine are that (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel has a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.” (Strong v. County of Santa Cruz (1975) 15 Cal.3d 720, 725.) Here, because the Sohns had constructive notice of the Bishop and Huntley maps well before 2004, more than 12 years before they filed their original complaint, they cannot claim ignorance of what they have set forth as the “true state of facts.” (See Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 355 [“Constructive notice ‘is the equivalent of actual knowledge; i.e., knowledge of its contents is conclusively presumed.’ ”].)

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to defendants and respondents County of Mariposa, Mariposa County Department of Public Works, Tony Stobbe, Gary Taylor, Russell Marks, and Mike Ziegenfuss.

DETJEN, J.

WE CONCUR:

POOCHIGIAN, Acting P.J.

MEEHAN, J.