April 2018 Update
In Surfrider Found. v Martins Beach 1, LLC (2017) 14 CA5th 238, the court found that the landowner was not allowed to close off public access to a beach without obtaining a permit from the California Coastal Commission. See §§1.7, 1.15, 1.17, 1.27.
In Friends of the Hastain Trail v Coldwater Dev., LLC (2016) 1 CA5th 1013, the trial court declared that a public trail easement was established by implied dedication through defendants’ property for hiking, jogging, and dog-walking, but court of appeal concluded public’s hiking use of fire road was insufficient to place predecessors on notice of risk of implied dedication. See §§1.16–1.17.
In Vieira Enters., Inc. v McCoy (2017) 8 CA5th 1057, the court held that adverse use of easement rights could ripen into prescriptive rights limiting the easement holder’s rights. Plaintiff’s property was subject to a recorded 20-foot-wide easement for road access. Plaintiff proved that some permanent structures had encroached about seven-and-a-half feet into the easement area for more than 5 years. The court held that the road easement was reduced in width to 12.5 feet but not eliminated entirely. See §§1.17–1.18, 1.30A, 1.33, 2.17, 4.43, 5.17, 7.37, 18.40.
In Scher v Burke (2017) 3 C5th 136, the California Supreme Court held that, whether recreational or nonrecreational, the public’s use of noncoastal private property after 1972 may never ripen into an implied public dedication under CC §1009. See §§1.17, 2.48.
In Hinrichs v Melton (2017) 11 CA5th 516, the court held that the easement by necessity doctrine may be applied by courts to create access to a driveway, road, or trail even when there was no prior access. See §§1.27, 2.54, 16.64, 18.34.
A cause of action for declaratory relief is appropriate if the dispute involves the interpretation of an express easement or other written document, or even for a dispute about legal rights based on statutes, common law, or oral agreements. A cause of action for trespass on an easement, however, is not viable. McBride v Smith (2018) 18 CA5th 1160. See §§1.30, 1.53, 1.56, 1.59A.
In Dickinson v Crosby (2017) 17 CA5th 655, a defendant’s attorney who issued both a letter to media outlets demanding that they not disseminate plaintiff’s rape accusations and a press release characterizing plaintiff’s accusation as a lie was not able to use the litigation privilege under CC §47 to defeat an anti-SLAPP motion. See §1.38.
In Scholes v Lambirth Trucking Co. (review granted June 21, 2017, S241825; superseded opinion at 10 CA5th 590), the court held that CC §3346(c) (double and treble damages for injury to trees) does not apply to property damages caused by negligently set fires. See §4.44.
Effective January 1, 2018, CC §714.1(b) is amended to provide that a homeowner’s association cannot establish a policy prohibiting the installation of a rooftop solar energy system for household purposes on the roof a building in which the owner resides or on the roof of a garage or carport adjacent to the building assigned to the owner for the owner’s exclusive use. See §8.13.
In City of Crescent City v Reddy (2017) 9 CA5th 458, the court properly appointed a receiver after a building owner failed to correct regulatory maintenance violations in a substandard motel following notice and a 30-day compliance order and 18 months of noncompliance. See §9.36.
If consideration is paid, then the statutory immunity under Civil Code §846 (limited defense for property owners against claimants who entered the property for recreational purposes) will not apply, even to nonpossessory interest holders. Pacific Gas & Elec. Co. v Superior Court (2017) 10 CA5th 563 (child injured by falling tree at county campground with entrance fee). See §9.55.
Effective June 27, 2017, California enacted the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA) (Bus & P C §§26000–26231.2). See Stats 2017, ch 27. MAUCRSA repealed the Medical Cannabis Regulation and Safety Act (MCRSA) (Bus & P C §19300–19360), and effectively merged into one set of statutes the two separate regulatory frameworks that previously existed under the former MCRSA and the Adult Use of Marijuana Act (AUMA) (adding Health & S C §§11018.1, 11018.2, 11361.1, 11361.8, 11362.1–11362.45, 11362.712–11362.713, 11362.84–11362.85; Bus & P C §§26000–26211; Lab C §147.6; Rev & T C §§34010–34021.5; and amending various other code sections). See §§10.61–10.63C, 12.13.
In City of Vallejo v NCORP4, Inc. (2017) 15 CA5th 1078, the court held that even with the passage of Prop 64 and former Medical Marijuana Regulation and Safety Act (MMRSA) (former Bus & P C §19300–19360), which contemplates state and local permitting of cannabis dispensaries, California law does not mandate that local governments authorize or accommodate dispensaries, but rather, delegates local regulation (which may include outright bans) under traditional land use and police powers deferred to local governments. See §10.67.
In Orange County Water Dist. v Sabic Innovative Plastics US, LLC (2017) 14 CA5th 343, the court held that the Carpenter-Presley-Tanner Hazardous Substance Account Act (HSAA) (Health & S Code §§25300–25395.45) allows a water district to bring suit against current and former owners and operators of sites in a basin area even without proof of joint liability, when the water district believes those owners are in some way responsible for groundwater contamination. See §11.34.
In Chen v Kraft (2016) 243 CA4th Supp 13, a landlord was granted summary judgment in an action to evict a tenant for engaging in an illegal purpose because the tenant was renting his residential unit as a bed and breakfast on a short-term basis in violation of the city’s zoning law. See §12.44.
In Hensley v San Diego Gas & Elec. Co.(2017) 7 CA5th 1337, the court held that, even though homeowner was not physically present, the emotional distress that a homeowner suffered as a direct and proximate result of wildfire and its attendant damage was recoverable as annoyance and distress damages in a nuisance and trespass action against an electrical utility that allegedly caused the fire. Hensley v San Diego Gas & Elec. Co. (2017) 7 CA5th 1337. See §17.47.
In Mountain Air Enters., LLC v Sundowner Towers, LLC, (2017) 3 C5th 744, the court held that even though the defendant’s assertion of an option agreement as affirmative defense was not an action or proceeding, under language of option agreement pertaining to attorneys’ fees, defendants could recover fees because plaintiffs suit was an action for purposes of attorneys’ fees provision. See §17.60.