Mikkelsen v. HansenAnnotate this Case
After defendants erected a wall across the Stockdale Estates segment of a pedestrian path, a group of current and former Amberton residents asked the superior court to enjoin defendants from impeding public use of the path. Plaintiffs argued that a common law dedication of the Stockdale Estates segment was both implied in fact and implied in law. The superior court issued a permanent injunction and then granted plaintiffs attorneys' fees.
During the pendency of the appeal, the California Supreme Court decided Scher v. Burke, (2017) 3 Cal.5th 136, 147, which held that Civil Code section 1009, subdivision (b), prohibits reliance on post-1972 public use to support a claim of implied dedication. Although the parties agreed that Scher abrogated the superior court's finding of an implied-in-law dedication, plaintiffs argued that the judgment must be upheld.
The Court of Appeal reversed both the judgment and the postjudgment order awarding fees, holding that section 1009, subdivision (b), generally prohibits implied-in-fact dedications of private noncoastal property and the superior court's order awarding plaintiffs attorneys' fees pursuant to Code of Civil Procedure section 1021.5 must be reversed.