Brandon v. City of San Diego CA4/1 (2016) · DecisionDepot
Brandon v. City of San Diego CA4/1
California Court of Appeal Jul 15, 2016 No. D068296Unpublished
Filed 7/15/16 Brandon v. City of San Diego CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MILAN L. BRANDON, as Trustee of the D068296 Milan Brandon Family Trust,
Plaintiff, Cross-Defendant, and Appellant, (Super. Ct. No. 37-2013-00067039- CU-EI-CTL) v.
CITY OF SAN DIEGO,
Defendant, Cross-Complainant, and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Joan M.
Lewis, Judge. Affirmed.
Freeland McKinley & McKinley, Steven A. McKinley, Karen G. McKinley and
Ian W. McKinley for Plaintiff, Cross-Defendant and Appellant.
Jan A. Goldsmith, City Attorney, and Carmen A. Brock, Deputy City Attorney, for
Defendant, Cross-Complainant and Respondent.
The Milan Brandon Family Trust (Trust) owns certain real property located in San
Diego. This property is adjacent to Olive Park and has been the site of a medical building
for the last 50 years. Milan L. Brandon, who is currently the trustee of the Trust, entered
into a revocable permit agreement (Permit) with the city of San Diego (City) in 1963
before constructing the medical building. Among other things, the Permit allowed
Brandon to use a portion of Olive Park for ingress and egress to the medical building.
However, the medical building also included underground parking, which was accessible
via Third Avenue.
In exchange for using a strip of Olive Park for ingress and egress, Brandon agreed
to maintain Olive Park as a public park, including having it landscaped per the City's
specifications. In addition, the Permit explicitly stated that the City could revoke the
Permit with 60 days' written notice to Brandon.
As part of a City program to increase useable park space in San Diego, the City
purchased land near Olive Park and planned to include Olive Park in its new park plan.
The City offered to allow Brandon to purchase or lease a portion of Olive Park to provide
ingress and egress for his medical building. Brandon declined. Despite using Olive Park
for ingress and egress for 50 years without paying taxes on the property or otherwise
compensating the City, Brandon took the position that he had an easement over Olive
Park. The City disagreed and after a public hearing, revoked the Permit. The City then
asked Brandon to remove his improvements on Olive Park. Brandon refused and brought
suit against the City for declaratory relief and inverse condemnation and sought a writ of
mandate challenging the City's revocation of the Permit.
The City brought a successful motion for summary judgment, and Brandon now
appeals the ensuing judgment. In doing so, he contends that he proved a triable issue of
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material fact exists as to the existence of an easement across Olive Park. In addition, he
claims the City improperly revoked the Permit.
We reject Brandon's contentions. We conclude that the undisputed evidence
shows that Brandon does not have any interest in Olive Park. Thus, he cannot maintain
his declaratory relief or inverse condemnation claims. Also, Brandon's attack on the
City's revocation of the Permit lacks merit. As such, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The instant matter concerns a dispute over an 80-foot x 200-foot strip of land over
Olive Park. On January 15, 1908, the City vacated a residential street right of way
intended for a future extension of Olive Street in the Bankers Hill area of San Diego. On
January 20, 1909, the fee title owners to the land underlying the vacated right of way (lots
L, A, F, and G of block 325) deeded a portion of the land to the City "in fee simple"
subject to a covenant that the land be used for a public park. This land became known as
Olive Park. The grantors, whose homes and garages faced Olive Park, continued to
access their garages across Olive Park from 1909 to 1963.
Over 50 years later, in 1962, Milan Brandon and Beaver Investment Corporation
(Beaver) acquired lots F and G of block 325 (Brandon Property). The Brandon Property
is located at 2800 Third Avenue, San Diego, California. The then existing homes on lots
F and G, which faced Olive Park, were demolished. The City permitted Brandon to "tie"
lots F and G together to construct a large rectangular medical building on the Brandon
Property facing Third Avenue. A parking garage, with a driveway opening to Third
Avenue, was constructed under the medical building. In June 1963, the City granted an
3
additional zoning variance to allow the medical building to be built on the Brandon
Property's southern property line adjacent to Olive Park.
In connection with the construction of the medical building, the City and Brandon
entered into the Permit whereby Brandon was to use a strip of land across Olive Park to
access the medical building. This was the same route the previous owners of lots F and G
used to access their garages. In exchange, Brandon promised to maintain Olive Park as a
public park. To this end, Brandon was required to landscape Olive Park in accordance
with City approved plans and not convert it to any other use.
The Permit allowed the City to terminate "all privileges given" under the Permit
"by simple resolution . . . adopted by the [San Diego] City Council . . . followed by sixty
(60) days' written notice of the revocation. . . ."
In 1981, Michal McKee, a relative of one of the original grantors of Olive Park to
the City, sued the City in San Diego Superior Court (1981 Action). In that case, McKee
alleged Olive Park was not being used as a public park as the original grantors had
intended, and therefore, ownership of Olive Park should revert back to the grantors' heirs.
After a bench trial, the trial court concluded that the original grantors, by way of a deed
recorded on May 14, 1909 (1909 Deed), had conveyed their interest in Olive Park to the
City with no reversionary interest under any condition. The court noted the 1909 Deed
"effected a severance of" Olive Park "from the contiguous properties of the respective
[g]rantors." The court found after the 1909 conveyance of Olive Park, a portion of that
property was necessary for ingress and egress to lots F, G, and L and continued to be
used for that purpose from 1909 to 1963. The court also observed that Brandon and
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Beaver entered into the Permit with the City, which did not violate the covenant in the
1909 Deed to use Olive Park for park purposes. The court concluded that the City owned
Olive Park in fee simple subject to a covenant that the property be used as a public park.
In the 1981 Action, the trial court entered judgment in favor of the defendants and
against McKee. In doing so, the court decreed that McKee "has no right, title or interest
in or to" Olive Park. There is no mention in the judgment about Brandon's right, title, or
interest in Olive Park.
Almost 30 years after the conclusion of the 1981 Action, the City, at a cost of $1.4
million purchased .34 of an acre of unimproved property adjoining Olive Park. The City
bought this property to address the 92.33 acre deficiency in useable park acreage
identified in the City's general plan, park and recreation guidelines, and as such, proposed
the new community park project.
In preparation for the new community park project, the City's real estate assets
department (READ) first offered to sell a small strip of Olive Park adjoining the Brandon
Property to Brandon. However, Brandon rejected the offer, claiming he already owned
an equitable easement over Olive Park. READ then attempted to lease the strip of land to
Brandon for 10 years. Brandon declined the offer, again asserting he already owned
access across Olive Park.
On April 4, 2013, READ gave Brandon notice the San Diego City Council (City
Council) would be asked to terminate the Permit to allow the City to move forward with
the new community park project. READ again offered to lease Brandon a strip of land
across Olive Park, but Brandon did not respond. Therefore, on May 1, 2013, the City
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gave notice to Brandon that the City Council would hold a hearing to consider the
termination of the Permit.
On June 18, 2013, the City Council held a hearing to consider revoking the Permit.
Brandon's legal counsel was present and spoke on Brandon's behalf. Numerous members
of the public attended and expressed support for the new community park project and for
the termination of the Permit, citing the importance of having a neighborhood park in
Bankers Hill, the ability to have a view of the Maple Canyon open space area from the
park, the abuse of the park by Brandon as a parking lot,1 and the 50 years of rent free, tax
free use of Olive Park Brandon had enjoyed.
The City Council president noted the revocation of the Permit received unanimous
support from the City's land use and housing committee as well as the support of the
council representative for the Bankers Hill council district. The council noted Olive Park
had not been maintained as a park by Brandon as required by the Permit, and also
observed all of READ's efforts to present Brandon with "fair options" for ingress and
egress use of a strip over Olive Park. Ultimately, the City Council adopted resolution
No. 308288, terminating the Permit.
On July 5, 2013, the City notified Brandon that the City Council had terminated
the Permit. Under paragraph 8 of the Permit, the City asked Brandon to remove all
facilities and improvements from Olive Park within 60 days. Brandon took no action.
1 Apparently, instead of maintaining Olive Park as a public park as required under the Permit, Brandon never fully landscaped the park, and rather, installed marked parking stalls and used Olive Park as an additional parking lot for the medical building. 6
Almost two weeks later, the City again notified Brandon access across Olive Park had
been permanently revoked, and asked Brandon to leave Olive Park. Brandon refused.
On September 16, 2013, Brandon filed suit in the North County branch of the San
Diego Superior Court against the City for declaratory and injunctive relief, alleging that
the City engaged in "unreasonable precondemnation conduct." In addition, Brandon
sought a writ of mandate challenging the termination of the Permit. The gravamen of
Brandon's suit was that he possessed an easement over Olive Park for ingress and egress
into the parking structure for the medical building.
Subsequently, Brandon sought and the superior court granted a temporary
restraining order (TRO). The TRO prohibited the City from fencing off Olive Park or
restricting Brandon's access across Olive Park pending a hearing on Brandon's request for
a TRO after the case was transferred to the central district of San Diego Superior Court.
Brandon then filed a first amended complaint, but did not add any additional
causes of action. The superior court again granted a TRO consistent with the previous
order pending a hearing on Brandon's motion for a preliminary injunction. After the
second TRO was granted, the City answered the first amended complaint.
On June 20, 2014, the City certified the administrative record in response to
Brandon's petition for writ of mandate. Ten days later, the City moved for summary
judgment, or in the alternative, summary adjudication of issues. In doing so, the City
argued Brandon's first (declaratory and injunctive relief) and third (inverse
condemnation) causes of action lacked merit because Brandon had no interest in Olive
Park. In regard to the second cause of action (petition for writ of mandate), the City
7
maintained substantial evidence supported the City Council's decision to revoke the
Permit, and the City did not proceed in excess of its jurisdiction.
On September 5, 2014, Brandon filed his opposition to the City's motion for
summary judgment. He argued, under a variety of different theories, a triable issue of
fact existed as to the existence of an easement over Olive Park, and thus, his first and
third causes of action should survive summary judgment. As to his second cause of
action, Brandon insisted the administrative record was not properly certified. In addition,
he asserted good cause did not exist to revoke the Permit and he was denied due process
because his attorney was not given adequate time to present his case at the City Council
hearing. As part of his opposition, Brandon objected to some of the evidence the City
filed with its motion.
The City filed a reply and related pleadings.
After considering the pleadings, evidence, and hearing oral argument, the superior
court granted the City's motion for summary judgment. In doing so, the court found that
Brandon had not raised a triable issue of fact as to his interest in Olive Park, and
therefore, his first and third causes of action necessarily failed. The court also rejected
Brandon's challenge to the City Council's revocation of the Permit, finding the City did
not proceed in excess of its jurisdiction and proceeded in a manner required by law, and
the decision to revoke the Permit was supported by evidence. The court also overruled
Brandon's objections to the City's evidence.
The court entered an interlocutory judgment in the City's favor on November 4,
2014, with final judgment entered on April 2, 2015. Brandon timely appealed.
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DISCUSSION
I
STANDARD OF REVIEW
"A defendant is entitled to summary judgment if the record establishes as a matter
of law that none of the plaintiff's asserted causes of action can prevail." (Molko v. Holy
Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) Further, the pleadings define the issues to be
considered on a motion for summary judgment. (Sadlier v. Superior Court (1986) 184
Cal.App.3d 1050, 1055.)
The standard of review for an order granting a motion for summary judgment is de
In performing our independent review, we apply the same three-step process as the
trial court. "Because summary judgment is defined by the material allegations in the
pleadings, we first look to the pleadings to identify the elements of the causes of action
for which relief is sought." (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 159
(Baptist).)
"We then examine the moving party's motion, including the evidence offered in
support of the motion." (Baptist, supra, 143 Cal.App.4th at p. 159.) As to each claim as
framed by the complaint, the defendant must present facts to negate an essential element
or to establish a defense. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179
Cal.App.3d 1061, 1064.) Therefore, a defendant moving for summary judgment has the
initial burden of showing that a cause of action lacks merit because one or more elements
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of the cause of action cannot be established or there is a complete defense to that cause of
action. (Code Civ. Proc.,2 § 437c, subd. (o); Aguilar, supra, 25 Cal.4th at p. 850.)
If the defendant fails to make this initial showing, it is unnecessary to examine the
plaintiff's opposing evidence and the motion must be denied. However, if the moving
papers make a prima facie showing that justifies a judgment in the defendant's favor, the
burden shifts to the plaintiff to make a prima facie showing of the existence of a triable
issue of material fact. (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849; Kahn v.
East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003.)
In determining whether the parties have met their respective burdens, "the court
must 'consider all of the evidence' and 'all' of the 'inferences' reasonably drawn therefrom
[citations], and must view such evidence [citations] and such inferences [citations], in the
light most favorable to the opposing party." (Aguilar, supra, 25 Cal.4th at p. 843.)
"There is a triable issue of material fact if, and only if, the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the party opposing the
motion in accordance with the applicable standard of proof." (Id. at p. 850, fn. omitted.)
Thus, a party "cannot avoid summary judgment by asserting facts based on mere
speculation and conjecture, but instead must produce admissible evidence raising a triable
issue of fact." (LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977,
981.)
2 All further statutory references are to the Code of Civil Procedure unless otherwise indicated. 10
II
THE FIRST AND THIRD CAUSES OF ACTION
In Brandon's first cause of action, he seeks declaratory and injunctive relief against
the City. He claims that an easement exists over Olive Park for the benefit of the
Brandon Property, and the City denies that any such easement exists.
Brandon's third cause of action, entitled "unreasonable precondemnation conduct"
is actually a claim for inverse condemnation as Brandon is seeking damages for the City
improperly taking the alleged easement. (See Pacific Bell v. City of San Diego (2000) 81
Cal.App.4th 596, 601-602.)
Both the first and the third causes of action require Brandon to have an interest in
Olive Park. Here, according to Brandon, that interest is an easement for the benefit of the
Brandon Property that would allow Brandon to use a portion of Olive Park for ingress
and egress to the medical building. If there is no triable issue of material fact regarding
whether an easement exists, summary adjudication as to the first and third causes of
action would be warranted.
Before we evaluate whether the City satisfied its initial burden for its motion as to
the first and third causes of action, we find it necessary to point out the unique
characteristics of this case. Here, Brandon argues he possesses certain interests and/or
property rights in Olive Park that arose from a transfer of that property over 100 years
ago. However, those rights (i.e., the existence of an easement) are not present in the 1909
Deed evidencing the transfer. Indeed, the deed is silent as to the existence of any
easement. Not surprisingly, there are no witnesses still living who can attest to what
11
occurred or the parties' intention in 1909. Instead, Brandon relies on the 1981 findings of
fact and conclusions of law, and to a lesser extent, the Permit to establish his interest in
Olive Park.
In moving for summary judgment, the City also relies on the 1981 findings of fact
and conclusions of law as well as the Permit. Not surprisingly, the parties disagree
regarding the correct interpretation of the 1981 findings of fact and conclusions of law
and the Permit.
In general, where a trial court has made both findings of fact and conclusions of
law, we would review the court's findings of fact for substantial evidence. (Westfour
Corp. v. California First Bank (1992) 3 Cal.App.4th 1554, 1558.) Under that standard,
our review begins and ends with a determination as to whether there is any substantial
evidence, contradicted or uncontradicted, to support the findings below. (Morgan v.
Imperial Irrigation District (2014) 223 Cal.App.4th 892, 916.) However, in this instance,
we do not have any record that allows us to ascertain if the trial court's findings of fact
are supported by substantial evidence. We do not have a transcript of the trial of the 1981
Action. There is no indication in the record what evidence was offered during the trial of
the 1981 Action. At most, the record contains a few of the City's trial briefs as well as
the complaint in the 1981 Action. These documents provide some context for the 1981
findings of fact and conclusions of law, but they do not allow us to engage in a
substantial evidence review. In addition, neither party has pointed us to any appellate
court review of the 1981 findings of fact and conclusions of law.
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Typically, we review the trial court's conclusions of law independently. (Jenron
Corp. v. Department of Social Services (1997) 54 Cal.App.4th 1429, 1434.) We are able
to do so with the legal conclusions contained in the 1981 findings of fact and conclusions
of law. In doing so, we will review the findings of fact to evaluate whether, as they are
stated, they support the conclusions of law. However, we do so cautiously and do not
imply findings or conclusions based on implied findings that are not clearly supported by
the actual text of the 1981 findings of fact and conclusions of law as we interpret that text
within the context of the 1981 Action.
In regard to the Permit, we treat that similar to a contract and interpret it
independently. (Cf. Pacific Gas & E. Co. v. G.W. Thomas Drayage etc. Co. (1968) 69
Cal.2d 33, 39-40.)
With this explanation regarding how we will interpret the two main sources of
evidence for the motion for summary judgment, we now analyze the motion.
The City's motion for summary judgment as to the first and the third cause of
action is relatively simple. The City provided evidence (and Brandon does not dispute)
that Brandon and the City entered into the Permit. The Permit allowed Brandon to use a
portion of Olive Park for ingress and egress to the medical building. The Permit also was
revocable by the City with 60 days' written notice to Brandon. After a public hearing, the
City revoked the Permit, thereby terminating any rights Brandon had to use Olive Park
for ingress and egress. In addition, the City offered evidence that the medical building's
underground parking structure was accessible by Third Avenue. We find these factual
contentions are supported by evidence in the record.
13
The City, Brandon, and a representative of Beaver signed the Permit in June 1963.
The Permit expressly stated that Brandon was to maintain Olive Park as a public park,
and in exchange, Brandon could use a portion of Olive Park for the ingress and egress to
and from the medical building. The Permit additionally stated that it was revocable at the
City's will by way of a simple resolution with 60 days' written notice to Brandon.
Moreover, the Permit required Brandon to remove all facilities and improvements made
by Brandon upon revocation of the Permit.
In his opening brief, Brandon points out that, per the variance provided by the
City, the underground parking garage for the medical building would have direct access
to Third Avenue. In Brandon's declaration, he admits that the underground parking can
be accessed from Third Avenue.
It is undisputed that the City Council terminated the Permit. As the City's position
is that Brandon was only able to access the medical building over Olive Park because of
the Permit, when it was revoked, according to the City, Brandon no longer had any right
of ingress or egress over the property. Accordingly, we conclude that the City satisfied
its initial burden of proof on its motion as to the first and the third causes of action.
Having found that the City satisfied its burden as to the first and third causes of
action, we next turn to Brandon's arguments regarding whether he created a triable issue
14
of fact as to his interest in Olive Park.3 He contends that he presented evidence creating
a triable issue of material fact as to the existence of an implied easement. We disagree.
"An implied easement may arise when, under certain specific circumstances, the
law implies an intent on the part of the parties to a property transaction to create or
transfer an easement even though there is no written document indicating such an intent."
(Mikels v. Rager (1991) 232 Cal.App.3d 334, 357.) "An easement will be implied when,
at the time of conveyance of property, the following conditions exist: 1) the owner of
property conveys or transfers a portion of that property to another; 2) the owner's prior
existing use of the property was of a nature that the parties must have intended or
believed that the use would continue; meaning that the existing use must either have been
known to the grantor and the grantee, or have been so obviously and apparently
permanent that the parties should have known of the use; and 3) the easement is
reasonably necessary to the use and benefit of the quasi-dominant tenement. [Citation.]
'The purpose of the doctrine of implied easements is to give effect to the actual intent of
the parties as shown by all the facts and circumstances.' [Citation.] An easement by
implication will not be found absent clear evidence that it was intended by the parties."
(Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 141-142, fn. omitted.)
3 Brandon begins his argument by claiming the City, as an initial matter, had to prove the existence of a negative: There was no implied easement. We disagree. The City's position is that Brandon was allowed ingress and egress over Olive Park under the Permit, and when the Permit was revoked, Brandon lost any such rights. As we discuss above, the City carried its burden on this theory. Of course, Brandon had the opportunity to show a triable issue of facts exists as the existence of an implied easement. 15
Curiously, Brandon did not provide us with the elements necessary to create an
implied easement or otherwise explain how the evidence he presented satisfied the
requirements. His failure to do so is fatal to his argument.4 (Nelson v. Avondale
Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 ["Appellate briefs must provide
argument and legal authority for the positions taken. 'When an appellant fails to raise a
point, or asserts it but fails to support it with reasoned argument and citations to
authority, we treat the point as waived.' "].)
However, even if we were to consider Brandon's claim, on the merits, we would
find no triable issue of material fact as to the existence of an implied easement. For
example, Brandon claims that evidence shows "the level portion of vacated Olive Street
had been used to access the garage of a single family residence located on [his] property
continuously before, during, and after the 1908 conveyance." Brandon thus reasons that
an implied easement was created in 1909 and existed when he purchased lots F and G in
1962. And as such, that easement exists today. We find several problems with Brandon's
conclusion.
As a foundational issue, Brandon's argument hinges on his claim that the trial
court in the 1981 Action, as set forth in the 1981 findings of fact and conclusions of law,
found the existence of an implied easement. It did not. And there is no indication in the
limited record we have that it was asked to do so. The 1981 Action featured McKee
4 In response to the City pointing out that Brandon did not provide the necessary elements to establish an implied easement, Brandon included such authority in his reply brief. 16
suing the City, Brandon, and others based on the claim that Olive Park should revert to
him as the heir of one of the original grantors. The court found the City owned Olive
Park in fee simple subject to a covenant that the property be used a public park. The
court further concluded that there was no breach of the covenant and McKee had no
interest in Olive Park. Nowhere in the 1981 findings of fact and conclusions of law did
the trial court use the word easement. We will not imply the existence of one based on an
incomplete record, especially in light of the fact that the determination of the existence of
an easement was not necessary or required to resolve the 1981 Action.
Next, Brandon's own declaration he submitted in opposition to the motion for
summary judgment does not establish a triable issue of fact as to the existence of an
implied easement. In fact, it undermines the theory that one exists. Brandon declared
that when he purchased the Brandon Property, he saw each lot was improved with "an old
house and garage, each of which faced south onto" Olive Park. At that time, Brandon
stated there was no other access to the garages from any public street. In addition,
Brandon stated that he purchased the Brandon Property to build an office building on it.
However, Brandon admitted that he was unaware of the existence of any easement across
Olive Street when he purchased the Brandon Property. Nowhere in Brandon's declaration
does he explicitly state that he believed he had a right to use Olive Park for ingress or
egress to the medical building he planned to build.
Also, Brandon's position ignores that the character of lots F and G changed
significantly after he purchased them. There are no longer homes on the property with
garages facing Olive Street with a path over Olive Park being the only means of ingress
17
and egress to the homes. Instead, the two homes were demolished and the City allowed
the two lots to be tied together and a medical building was constructed on property that is
now accessible from Third Avenue. Further, by way of the Permit, the City expressly
allowed Brandon to use a portion of Olive Park for ingress and egress over Olive Park in
exchange for Brandon maintaining Olive Park as a public park. If an easement existed,
there was no need to Brandon to enter into the Permit. Indeed, Brandon offers no
explanation why he would agree to maintain Olive Park as a public park if he already had
an easement on that property.
Brandon also argues that the 1981 findings of fact and conclusions of law
collaterally estop the superior court from granting the City's motion for summary
judgment. We are not persuaded.
Collateral estoppel precludes relitigation of an issue that was necessarily decided
in a prior litigation between the same parties or their privies. (Edward Castillo v. City of
Los Angeles (2001) 92 Cal.App.4th 477, 481.) Brandon claims the 1981 Action
determined that an easement for ingress and egress over Olive Park existed in his favor.
To this end, Brandon relies on the following findings by the trial court, which he claims
establishes the existence of an easement that benefits him now:
"Before, during and after the transaction described in paragraphs 6, 7, 8, and 9 above,[5] the intention of the Grantors and defendant City as to the limitation in the 1909 deed, 'for use as a public park,' was that the westerly approximate one-half or canyon portion of [Olive
5 The subject transaction consisted of the original grantors deeding Olive Street to the City to be used as a public park, and in exchange, the City agreed to close and vacate Olive Street to through traffic. 18
Park] would be used as part of a canyon park and the easterly one- half or street-level portion would continue to provide access to Lot 'F' and Lots 'G' and 'L.' "
Brandon contends that the foregoing established that the original grantors intended
to create "an easement of access" that would benefit him as the eventual owner of lots F
and G. However, Brandon ignores the very next paragraph of the 1981 findings of fact
and conclusions of law wherein the trial court acknowledged that the situation of the
original grantors in 1909 changed in 1963. The court found:
"On or about June 11, 1963, defendant City of San Diego, on the one hand, and Beaver Investment Corporation . . . and Milan L. Brandon, on the other, entered into a Revocable Permit Agreement . . . whereby Beaver Investment Corporation and Milan L. Brandon agreed to landscape, develop and maintain [Olive Park] in exchange for the right to use [Olive Park] for ingress and egress to Lots 'F' and 'G' and to a medical building to be constructed thereon . . . ."
Thus, the trial court found that the right to use Olive Park as ingress and egress for
the medical building originated in the Permit. It would be inconsistent with finding the
existence of an implied easement for the court then to find that the City granted Brandon,
by way of the Permit, the right to use Olive Park for ingress and egress to the medical
building. Also, we find no language in the 1981 findings of fact and conclusions of law
that could be reasonably read to support Brandon's position that the trial court found an
implied easement existed.
In short, in the 1981 Action, Brandon and the City did not litigate the possible
existence of an implied easement over Olive Park for the benefit of the Brandon Property.
19
Accordingly, the 1981 Action cannot be used by Brandon, as collateral estoppel, to create
a triable issue of material fact as to existence of such an easement.6
Brandon next argues that there is a triable issue of fact as to whether an abutter's
easement exists over Olive Park. To this end, relying on Harman v. City and County of
San Francisco (1972) 7 Cal.3d 150 at page 167 (Harman), Brandon maintains "here, lots
are laid out on a map showing frontage on streets, a private easement of ingress and
egress burdens all public streets in favor of the abutting parcels, and survives closure of
the street." He further reasons that because his property abutted Olive Street, a private
easement of access survived the street closure. We are not persuaded.
Brandon's reliance on Harman, supra, 7 Cal.3d 150 is misplaced. Although in that
case our high court noted that a private easement of ingress and egress burdens all public
streets in favor of the abutting parcels (id. at p. 167), the case concerned a taxpayer's
claim that San Francisco's method of obtaining appraised values for the purpose of selling
certain streets was illegal (id. at pp. 155-156). Accordingly, Harman's discussion of an
abutter's easement is at best dicta, and not particularly helpful dicta, because it does not
6 Brandon insists that two City documents that refer to the existence of an easement create a triable issue of material fact sufficient to overcome the City's motion for summary judgment. The first document is a planning report of the City's Planning Department dated March 29, 1985. In that document, the author states an easement has been granted. This conclusion by itself does not create an easement. Nor does it satisfy any of the elements of establishing an implied easement. The second document is a City memorandum dated December 11, 1992. The author of that memorandum states that his "understanding of legal language is minimal," but then proceeds to interpret a portion of the 1981 findings of fact and conclusions of law that Brandon believes is helpful to his position. We are not bound by this City employee's interpretation of the 1981 findings of fact and conclusions of law. 20
explain how an abutter's easement would exist here. In the instant matter, Olive Street
was closed over 50 years before Brandon bought the Brandon Property. Brandon
demolished the houses that existed on the Brandon Property and built a medical building.
Moreover, ingress and egress over Olive Park was not necessary as the medical building
included underground property that connected directly with Third Avenue.
In addition, Brandon's argument that an abutter's easement exists essentially relies
on the existence of an abutter's easement as to the original grantors of Olive Park. There
is nothing in the record that established the existence of such an easement.
In short, Brandon has not offered any disputed material fact that would create the
possibility of an abutter's easement on the record before us.
Finally, Brandon insists that a triable issue of material fact exists because the
covenant to use Olive Street as a public park created an easement for access. An
easement creates a nonpossessory right to enter and use land of another. (Main St. Plaza
v. Cartwright & Main, LLC (2011) 194 Cal.App.4th 1044, 1053.) " 'An easement may be
created by (1) an express grant, (2) an express reservation, (3) an implied grant, (4) an
implied reservation, (5) necessity, (6) prescription, (7) a recorded covenant,
(8) dedication, (9) condemnation, (10) estoppel, or (11) a court decision.' " (Id. at
pp. 1053-1054.) A covenant appearing in a grant deed may be binding and pass to future
owners of the property. These covenants are said to "run with the land." (William Self v.
Shahram Sharafi (2013) 220 Cal.App.4th 483, 488.) To run with the land, a covenant
must touch and concern land. The benefits or burdens of this type of covenant pass by
implication of law rather than under principles of contract. (Ibid.) Here, the covenant to
21
be used as a public park found in the 1909 Deed does not, by its express terms, establish
any access easement. However, Brandon argues that the trial court in the 1981 Action
interpreted this 1909 Deed covenant to establish an easement for access.
Again, Brandon relies on paragraph 16 of the 1981 findings of fact and
conclusions of law. In doing so, he asserts an easement exists because the court found
" 'for use as a public park,' was that the westerly approximate one-half or canyon portion
of [Olive Park] would be used as part of a canyon park and the easterly one-half or street-
level portion would continue to provide access to Lot 'F' and Lots 'G' and 'L.' " Brandon
interprets this portion of the findings of fact as conclusively establishing the existence of
an easement. In other words, Brandon argues that the court created an equitable
easement. We disagree.
We again observe that the word "easement" appears nowhere in the 1981 findings
of fact and conclusions of law. Although the absence of that word is not the death knell
for Brandon's challenge, we do find the omission of that word telling. The court could
have clearly pointed out that an equitable easement existed. It did not. The reason for
this omission is evident. The court was not asked to find any such easement. It was not
necessary for the determination of the issues presented. As such, we find it difficult to
agree with Brandon that the trial court found an equitable easement in the 1981 Action.
In appropriate cases where requirements for traditional easements are not present,
California courts have exercised their equity powers to fashion protective interests in land
referred to as "equitable easements." (Tashakori v. Lakis (2011) 196 Cal.App.4th 1003,
1008.) However, to justify the creation of an equitable easement, three factors must be
22
present: (1) the easement seeker must use and improve property innocently; (2) the party
opposing the easement must not suffer irreparable harm by the easement; and (3) the
hardship of denying the easement must be greatly disproportionate to the hardship of
allowing it. (Id. at p. 1009.) Unless all three prerequisites are established, a court lacks
the discretion to grant an equitable easement. (Shoen v. Zacarias (2015) 237 Cal.App.4th
16, 19.) Brandon has not shown that the court in the 1981 Action considered or decided
the requisite factors to establish an equitable easement for access across Olive Park in
favor of Brandon.7
In summary, the undisputed evidence shows that, by way of the Permit, Brandon
was able to use a strip of Olive Park for ingress and egress to the medical building.
Brandon did so for 50 years without paying rent or taxes on that property. The City
revoked the Permit. Brandon has not shown that a triable issue of fact exists as to the
existence of an easement over Olive Park for the benefit of the Brandon Property. As
such, he has no interest in Olive Park and his first cause of action for declaratory relief
and his third cause of action for inverse condemnation fail.
III
THE SECOND CAUSE OF ACTION
Brandon's second cause of action is for a petition for a writ of mandate. He
challenges the City's revocation of the Permit. He alleges the "[City's] decision and
7 It logically follows that Brandon could not do so. Again, in the 1981 Action, the court was not asked to determine the existence of an equitable easement. We find no language in the 1981 findings of fact and conclusions of law that Brandon could offer to show the court made any such determination. 23
resolution revoking the [Permit] was arbitrary, capricious, and in bad faith and was an
abuse of discretion because there was no evidence of good cause to revoke the [Permit],
and there was no evidence Brandon had not performed [under the Permit], and the only
reason for revocation was the desire of [the City] to compel Brandon to pay money in
violation of the terms and conditions of the [Permit]."
The court granted summary adjudication of the second cause of action, finding the
City: (1) did not proceed in excess of its jurisdiction, (2) proceeded in a manner required
by law, and (3) the decision to revoke was supported by the evidence. The court further
determined that Brandon offered no evidence or argument that challenged its findings.
Brandon claims the trial court erred and the second cause of action should have survived
the City's motion. We disagree.
Although brought under the umbrella of a motion for summary judgment, in
challenging the second cause of action, the City invoked section 1094.5. Section 1094.5
applies to a petition for a writ of mandate challenging the validity of a final
administrative order or decision made by the City. (§ 1094.5, subd. (a).) "The inquiry in
such a case shall extend to the questions whether the respondent has proceeded without,
or in excess of, jurisdiction; whether there was a fair trial; and whether there was
prejudicial abuse of discretion. Abuse of discretion is established if the respondent has
not proceeded in the manner required by law, the order or decision is not supported by
the findings, or the findings are not supported by the evidence." (§ 1094.5, subd. (b).)
In moving for summary adjudication as to the second cause of action, the City
maintained that "the evidence in the administrative record . . . clearly demonstrates the
24
City Council neither proceeded in excess of its jurisdiction, nor made findings, nor came
to a decision that was not supported by substantial evidence in the [administrative
record]." In its memorandum of points and authorities, the City specifically cited section
1094.5 and argued the City: (1) did not proceed in excess of its jurisdiction; (2) the City
Council's decision was supported by evidence presented at the hearing; and (3) Brandon
was afforded due process.
In opposing the City's motion for summary judgment, Brandon did not take issue
with the City's reliance on section 1094.5. Indeed, Brandon, too, relied on that code
section in opposing the City's motion. In opposition, Brandon asserted the administrative
record was not properly certified, the Permit could only be revoked for good cause, the
City did not have good cause to revoke the permit, and he was denied due process.
On appeal, the City asks us to review the superior court's order as to the second
cause of action as if we were reviewing a motion under section 1094.5. Put differently,
the City maintains our standard of review should be substantial evidence not de novo.
Generally, on appeal of a trial court's denial of a petition for a writ of mandate, an
appellate court does not review the trial court's ruling, but the agency's final
administrative decision. (TG Oceanside, L.P. v. City of Oceanside (2007) 156
Cal.App.4th 1355, 1370.) In reviewing the administrative decision, the appellate court
must consider whether substantial evidence supports the agency's conclusion (here, that
the Permit should be revoked). (Ibid.) Yet, to the extent the agency's decision rests on an
application of law, the matter presents a question of law for the court's independent
review. (Ibid.)
25
In his reply brief here, Brandon contends the City did not bring a proper motion
under section 1094.5 to dispose of the second cause of action for petition for a writ of
mandate. Relying on Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281 at
page 1292, he then argues that summary adjudication of a petition for a writ of mandate
is only available if the moving party establishes that evidence outside of the
administrative record disposes of the petition as a matter of law. As such, Brandon
contends we must either reverse the judgment as to the second cause of action because
the motion (as to the second cause of action) was improperly before the court or analyze
the City's motion as to the second cause of action under the de novo summary judgment
standard. Implied in Brandon's argument is that there is nothing outside the
administrative record on which to grant summary adjudication; therefore, we must
reverse the judgment as to the second cause of action.
As to Brandon's argument that the City's challenge of the second cause of action
was procedurally improper, we note that Brandon did not raise this issue below. " 'An
appellate court will ordinarily not consider procedural defects or erroneous rulings, in
connection with relief sought or defenses asserted, where an objection could have been
but was not presented to the lower court by some appropriate method . . . . The
circumstances may involve such intentional acts or acquiescence as to be appropriately
classified under the headings of estoppel or waiver . . . . Often, however, the explanation
is simply that it is unfair to the trial judge and to the adverse party to take advantage of an
error on appeal when it could easily have been corrected at the trial.' " (Doers v. Golden
In addition, it is clear from the record below that the parties and the court
evaluated the City's motion as to the second cause of action as if the motion was brought
under section 1094.5. The City clearly relied on section 1094.5. Brandon did not
dispute the applicability of section 1094.5 as to the second cause of action. In addition,
although he stated a triable issue of material fact existed as to this second cause of action,
he never explained what that fact was. Instead, he quibbled about the certification of the
administrative record and made legal arguments based on his interpretation of the Permit
and what occurred at the hearing to revoke the Permit. And, considering the evidence,
pleadings, and arguments of counsel, the court ultimately found (in respect to the second
cause of action):
"The evidence before the Court, including the transcript of the City Council hearing . . . is sufficient to meet the [City's] burden that the City (1) did not proceed in excess of its jurisdiction; (2) that it proceeded in the manner required by the law; and (3) the decision to revoke was supported by the evidence. [¶] In opposing the motion as to this cause of action [Brandon] argued that the administrative record . . . was not properly certified. [Brandon], however, fails to explain how the [administrative record] . . . [is] inadequate. [¶] He also argued that the [Permit] was not revocable at will, an argument the Court has rejected. [¶] And, he contends that the Council failed to make any findings that [Brandon] violated any terms or conditions of the [Permit]. [Brandon], however, cites to no provision in the [Permit] that would require such findings be made prior to revoking the [Permit]."
Against this background, we see no reason we would not treat the City's motion
challenging the second cause of action as if it were brought under section 1094.5. In
27
addition, as we discuss below, even if we were to apply a de novo standard of review, we
would conclude that Brandon has not raised a triable issue of material fact as to the
second cause of action.
Brandon challenges the City's decision to revoke the Permit on three primary
grounds. First, he contends the City could not revoke the Permit without good cause or
adequately compensating him. He then reasons that because good cause did not exist and
the City did not compensate him, the revocation of the Permit was improper. Second, he
claims his due process rights were violated because his attorney was not able to speak for
a sufficient period of time at the public hearing regarding the revocation of the Permit.
Finally, he insists the City did not present a proper administrative record.
Brandon's first argument relies on an untenable interpretation of the Permit. The
Permit expressly states that it is "revocable at the will of the City at any time by a simple
resolution to that effect adopted by the City Council of said City, followed by sixty (60)
days' written notice of said revocation sent to" Brandon. Ignoring the Permit's clear
language, Brandon contends the trial court in the 1981 Action found that the City could
only revoke the Permit with good cause.8 Although Brandon does not point us to the
specific language where the court made any such finding, it appears that Brandon
interprets the court's statement, "[n]o grounds exist on which to revoke [the Permit]" as
8 Brandon for the first time in his reply brief argues a license that is "truly revocable at will without cause [is] void for lack of mutuality of obligation." (See Alameda County v. Ross (1939) 32 Cal.App.2d 135, 140-141.) We need not address arguments made for the first time in a reply brief. (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894-895, fn. 10.) 28
an indication the court found the Permit could only be revoked for cause. His
interpretation is incorrect, and Brandon again ignores the context of the 1981 Action and
the findings of the trial court. In that case, the plaintiff was arguing that Olive Park
should revert back to him. For that to occur, the Permit would have had to have been
revoked. The trial court merely found that the plaintiff had not proved that any grounds
existed for the City to revoke the Permit based on the plaintiff's lawsuit. The court was
never asked to determine whether the City could revoke the Permit if it decided to do so.
Put differently, the court only found that the plaintiff could not cause the Permit to be
revoked. Nothing in the 1981 findings of fact and conclusions of law can be reasonably
interpreted as determining that the City could only revoke the Permit for cause.
Similarly, we find nothing in the Permit to support Brandon's conclusion that the
City had to compensate him for the improvements he made before the City could revoke
the Permit. Here, Brandon argues that he acted in good faith under the terms of the
Permit and constructed valuable improvements on the property making it unjust for the
City to revoke the Permit without fully compensating him for his loss and expenditure of
money. (Belmont County Water District v. State of California (1976) 65 Cal.App.3d 13,
17.) We disagree. Even putting aside the clear language in the Permit that the City could
revoke it at will, this is not a case where an injustice occurred when the City revoked the
Permit. Brandon received the benefit of the Permit for 50 years. He used a portion of
Olive Park for ingress and egress during that period without paying taxes or rent on the
property. Moreover, there is evidence in the record that Brandon did not comply with the
Permit in maintaining Olive Park as a public park, but instead, turned a portion of it into a
29
paved parking lot in violation of the Permit. Under these circumstances, we determine as
a matter of law that Brandon could not show that the City's revocation of the Permit
worked any fraud or injustice upon Brandon. (Cooke v. Ramponi (1952) 38 Cal.2d 282,
286; Belmont County Water District, supra, at pp. 17-18.)
We also are not impressed by Brandon's claim he was denied his due process
rights when his attorney was not permitted to speak for a longer period of time at the
public hearing on the revocation of the Permit. The record shows that the City gave
notice on May 1, 2013, that the City Council would hold a hearing to consider the
termination of the Permit. The matter was then docketed for City Council action. In
response to the City's notice, Brandon's counsel sent the City a five-page letter detailing
why he believed the City could not revoke the Permit and threatening to bring suit if the
City did revoke it. Brandon's counsel also addressed the City Council at the public
hearing. Before he spoke, the City Council informed him he had three minutes to speak.
There is no indication that any other public speaker received more time, and Brandon's
counsel did not take issue with the time limit at that time. After his three minutes
expired, the City Council provided Brandon with an additional 30 seconds to finish his
comments. In addition, the City Council told Brandon's counsel that if he could find
someone who would cede his or her time to him then the City Council would
accommodate him. However, when Brandon's counsel's additional 30 seconds expired,
he did not object. Now, on appeal, Brandon insists that his counsel was entitled to cross-
examine witnesses and speak for an additional amount of time to address "the many
evidentiary and legal issues presented by the underlying facts." However, he has
30
provided us with no authority to support his position that he is entitled to such
accommodations at a City Council hearing to revoke a permit that is revocable at will by
the City. In this case, it is evident that the City Council considered all public comment,
made findings, and unanimously voted to terminate the revocable permit. There was no
due process violation.
Brandon's final challenge to the court's grant of summary adjudication as to the
second cause of action is a technical one. He urges us to find the superior court erred
because the City did not present a valid administrative record, and thus, summary
adjudication was improper. To support his position, Brandon observes that the individual
who authenticated the administrative record declared that she gathered and labeled
documents "of City records relating to this litigation." Consequently, Brandon claims the
administrative record is not valid because it can only contain documents considered by
the City Council in reaching its decision. Brandon's position is somewhat spurious.
Brandon's primary attack on the revocation of the Permit is that the City was not
able to revoke it without cause or compensation. As we discuss above, Brandon's
argument is based on flawed interpretations of the Permit and the 1981 findings of fact
and conclusions of law. As such, the content of the administrative record plays no role in
this challenge.
In addition, Brandon's claim that he was denied due process requires only an
analysis of the hearing transcript, which is contained in the record and cited to and relied
upon by Brandon in his opening brief. Such a transcript is part of an administrative
record. (§ 1094.6, subd. (c).) Brandon does not argue that the transcript should not have
31
been included in the purported administrative record or that it does not correctly reflect
what occurred at the hearing. Accordingly, his claim that the administrative record is not
valid does not impact his due process claim.
We also observe that Brandon does not indicate what documents, if any, should
not have been included in the purported administrative record. He does not claim that
documents have been omitted. He does not explain how he has been prejudiced. Indeed,
his argument is little more than a challenge to the verbiage used by the declarant
authenticating the administrative record. Such a hypertechnical challenge does not
warrant a reversal on the record before us.
Contrary to Brandon's assertions, the record shows that the City acted properly in
revoking the Permit. At the June 18, 2013 City Council meeting, City staff presented a
slide presentation to the City Council and responded to council questions. Numerous
members of the public expressed support for the termination of the Permit for the new
community park project, citing the importance of having a neighborhood park in Bankers
Hill and the ability to have a view of the Maple Canyon open space area from the park.
The abuse of the park by Brandon as a parking lot was debated by the public, as was the
50 years of rent free, tax free use of Olive Park Brandon had enjoyed.
The City Council president presented evidence the termination of the Permit had
been considered by the City's land use and housing committee and had the committee's
and his support as council representative for Bankers Hill. He also noted Olive Park had
not been maintained as a park by Brandon as required by the Permit, and observed the
City staff's efforts to present Brandon with "fair options" were unsuccessful. The council
32
president further noted Bankers Hill is very densely populated and is in need of additional
park space, with only two parks in the entire uptown area of the City.
Another council member echoed the council president's concerns, and noted there
had been a failure by Brandon to adhere to his responsibility to maintain Olive Park as a
park.
A different council member pointed out that as former member of the parks and
recreation board, he had firsthand knowledge that new parks and open space are critically
important, but difficult to achieve, in the inner city. Therefore, when a rare opportunity
to secure additional park land arises, like here, the opportunity must be captured for the
good of the community.
We are satisfied that the record demonstrates the City Council's decision to revoke
the Permit was supported by findings, and the findings were supported by the evidence.
The council's unanimous decision to terminate the Permit was in support of the public
good and was not an abuse of discretion.9 The superior court did not err in granting
summary adjudication as to the second cause of action.
9 Even if we applied the summary judgment de novo standard of review, we would conclude that Brandon has not raised a triable issue of material fact to allow the second cause of action to survive the City's motion. As we discuss above, we find no support in the record for Brandon's petition for writ of mandate. In addition, none of his legal theories challenging the revocation of the Permit has merit. 33
IV
BRANDON'S OBJECTIONS TO EVIDENCE
Although a review of a judgment following the granting of a summary judgment
requires an independent review, "[a] different analysis is required for our review of the
trial court's . . . rulings on evidentiary objections. Although it is often said that an
appellate court reviews a summary judgment motion 'de novo,' the weight of authority
holds that an appellate court reviews a court's final rulings on evidentiary objections by
applying an abuse of discretion standard." (Carnes v. Superior Court (2005) 126
Cal.App.4th 688, 694.) This standard is guided by various principles set out in the case
law: " '[T]he appropriate test of abuse of discretion is whether or not the trial court
exceeded the bounds of reason, all of the circumstances before it being considered.' . . .
Other cases suggest that a court abuses its discretion only when its ruling is arbitrary,
whimsical, or capricious." (Miyamoto v. Department of Motor Vehicles (2009) 176
Cal.App.4th 1210, 1218.)
Here, Brandon claims the superior court abused its discretion by overruling his
objections to the City's evidence submitted in support of its motion for summary
judgment. Specifically, he challenges the court's ruling on his objection to a preliminary
title report. He argues that the City offered the preliminary title report to show the
existence of title to the Brandon Property. The preliminary title report contains a legal
description of the Brandon Property that specifically excepts "all of closed Olive Street
adjacent to said lots."
34
Brandon argues the title report is hearsay and should not have been admitted.
Unfortunately, Brandon fails to cite to the record where the title report is located. Nor
does he indicate what portion of the City's motion the preliminary title report related to.
As such, Brandon has not presented us with a sufficient basis on which to evaluate his
objection. Further, as no party has made any argument based on the preliminary title
report, we view Brandon's argument as to this objection moot.10
Next, Brandon argues the court erred in overruling his objection to the entire
administrative record. We rejected this contention in discussing the second cause of
action above.
Finally, Brandon claims the superior court erred in overruling his objection to all
the evidence the City submitted in support of its motion for summary judgment because
none of the evidence was properly authenticated. Although we do not discount the
importance of correctly authenticating evidence used in a motion for summary judgment,
we again conclude Brandon's challenge is moot. The instant matter is unique in the sense
that almost all the arguments made by the City and Brandon involve three pieces of
evidence: The Permit, the 1981 findings of fact and conclusions of law, and the
transcript of the City Council hearing. In Brandon's opening brief, he cites repeatedly to
10 The City points out that the legal description of the Brandon Property contained in the preliminary title report is identical to the legal description contained in a quitclaim deed dated June 1, 2011, transferring Brandon's and his wife's interest in the Brandon Property from themselves in their individual capacities to themselves as trustees of the Trust. The superior court granted the City's request to take judicial notice of the quitclaim deed. Brandon did not challenge the grant of judicial notice. For this reason as well, we find Brandon's argument moot. 35
this evidence. He does not take the position that the hearing transcript did not accurately
reflect what occurred at the hearing. And he requested the superior court take judicial
notice of the 1981 findings of fact and conclusions of law as well as the Permit. The
court granted his request. Against this backdrop, there is no reason to reverse the superior
court's judgment because the City allegedly did not adequately authenticate certain
evidence when that evidence does not factor into our analysis here.
DISPOSITION
The judgment is affirmed. The City is awarded its costs on this appeal.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
36
AI Brief
AI-generated · verify before citing
Holding. The court held that the City properly revoked the revocable permit agreement and that the plaintiff failed to establish a triable issue of material fact regarding the existence of an implied easement over the City's property. Consequently, the plaintiff's claims for declaratory relief and inverse condemnation failed as a matter of law.
Issues
Whether the trial court erred in granting summary judgment against the plaintiff's claims for declaratory relief and inverse condemnation.
Whether the plaintiff established a triable issue of material fact regarding the existence of an implied easement over the City's property.
Whether the City's revocation of the permit was legally improper.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“We conclude that the undisputed evidence shows that Brandon does not have any interest in Olive Park. Thus, he cannot maintain his declaratory relief or inverse condemnation claims.”
“The Permit expressly stated that Brandon was to maintain Olive Park as a public park, and in exchange, Brandon could use a portion of Olive Park for the ingress and egress to and from the medical building.”
“The Permit additionally stated that it was revocable at the City's will by way of a simple resolution with 60 days' written notice to Brandon.”