Filed 10/1/15 White v. Pimlott CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


MARIBETH MERCADO WHITE,
         Plaintiff and Appellant,
                                                                    A141475
v.
KEN PIMLOTT, as Director, etc.,                                     (Mendocino County
                                                                    Super. Ct. No. SCTM-CVPT-12-60903)
         Defendant and Respondent.

MARIBETH MERCADO WHITE,
         Plaintiff and Appellant,                                   A142886
v.                                                                  (Mendocino County
DEL WALTERS, as Director, etc., et al.,                             Super. Ct. No. SCUK-CVG-10-55754
         Defendants and Respondents.


         In this consolidated appeal, plaintiff Maribeth Mercado White appeals from the
trial court’s judgment in favor of defendant California Department of Forestry and Fire
Protection (Cal Fire) on her claim for an equitable easement over an access road to her
property. She also challenges the court’s order denying her petition for writ of
mandamus as to Cal Fire Director Ken Pimlott’s denial of reconsideration of her
administrative request for the easement. We affirm.
               FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I.       Background
         Plaintiff owns a 40-acre parcel in Fort Bragg that is bounded on three sides by the
Jackson Demonstration State Forest (JDSF), which is owned by the State of California
and managed by Cal Fire. The remaining side is bordered by two privately owned
parcels. She has owned or co-owned her parcel since 1998, following her marriage to the
now-deceased William White. William and his brother Robert White originally obtained
the parcel in 1973 for approximately $60,000. William obtained full ownership of the
parcel in 1991.
       The JDSF is a 48,652-acre forest located in Mendocino County between Fort
Bragg and Willits. It is the largest of California’s demonstration state forests. These
forests are mandated to conduct research, demonstrations, and education on sustainable
forestry practices using active forest management techniques, including periodic timber
harvests.
       The dirt roadway that is the subject of this action (the access road) has historically
provided regular vehicular access to plaintiff’s land. The access road extends from the
end of the county-maintained section of Mitchell Creek Drive, traversing other private
property as well as JDSF land. Plaintiff’s parcel has no recorded easement for the access
road or for any other road providing entry to her parcel.
       On May 31, 1983, a JDSF forest manager sent Robert and William a letter inviting
them to apply for an easement. The letter opined that because they lacked an easement,
their presence on the access road constituted a trespass.
       On or about June 10, 1983, Robert replied to the JDSF by letter, suggesting he had
an interest in obtaining an easement.
       On May 15, 1985, the JDSF forest manager sent another letter to the White
brothers, noting there was no record that an actual request for an easement had been
prepared or forwarded to the agency for approval.
       On October 28, 1994, another JDSF manager sent Robert a letter advising him that
large amounts of hazardous waste and other trash were being dumped near the access
road because his tenants failed to ensure the entry gates were kept closed. Access by
trespassers was also resulting in illegal campfires, tree poaching, firewood theft, and a
network of unauthorized roads. Consequently, the access road would be permanently



                                              2
closed. The letter again noted that while Robert had sent correspondence in 1983
indicating a desire to obtain an easement, no action had been taken.
         On October 6, 2005, the JDSF sent William a letter, observing it had been over 10
years since it had sent the notification about the proposed road closure. While the agency
had not followed through with the closure, the letter explained that the problems caused
by the unlocked access road were continuing. Consequently, the gates would be repaired
and the Whites would be issued keys. The JDSF would allow the road to remain open
provided the gates were kept locked.1
         On October 8, 2005, plaintiff and William sent a reply to the JDSF protesting that
the agency was being unfair because it was not practicable to keep the gates locked at all
times.
         In 2006, the parties engaged in negotiations for formalizing the status of the access
road. Plaintiff’s attorney indicated that plaintiff was intending to sell the property at a list
price of $1.5 million.2
         On May 21, 2008, Cal Fire sent plaintiff’s attorney a letter acknowledging receipt
of plaintiff’s request for an easement for access to her property. The letter requested
results of a title search documenting her need for access.
         On July 30, 2009, plaintiff’s attorney sent a letter to Cal Fire indicating no other
access options were available, and confirmed she was seeking a formal easement from
the agency.
         On August 4, 2009, plaintiff submitted a proposal for a deeded access easement
pursuant to Board of Forestry and Fire Protection Policy No. 0351.8 (Policy 0351.8).
         On March 15, 2010, then Cal Fire Director Del Walters (Director) signed a letter
denying plaintiff’s request for a permanent easement. The letter indicated the agency’s
position that plaintiff had not satisfactorily demonstrated alternative access routes were
unavailable. Additionally, the agency determined that granting an easement would


1
    The parties have stipulated that Cal Fire has never blocked access to plaintiff’s property.
2
    By September 2012, plaintiff had reduced the listing price to $559,000.

                                                3
adversely impact the JDSF’s “legislatively mandated function as a working forest for
research and demonstration of economical forest practices.” However, Walters indicated
Cal Fire would continue to allow plaintiff full access to her property along the same route
that she was seeking for the permanent easement. 3
II.    Plaintiff’s Complaint
       On June 23, 2010, plaintiff filed a first amended complaint stating claims for quiet
title, inverse condemnation, slander of title, breach of contract, interference with
prospective economic advantage, state and federal due process violations, and declaratory
relief as to her right to access her property. In her pleading she alleged that Cal Fire’s
refusal to grant an easement had significantly depreciated the property’s value, and had
made it difficult or impossible to sell the property or obtain refinancing. In her quiet title
claim, she alleged a right to an easement by necessity, by implication, or under presumed
equitable principles.4
       On September 10, 2010, the trial court ruled on Cal Fire’s demurrer to the first
amended complaint. The court overruled the demurrer as to plaintiff’s quiet title claim
and her cause of action for declaratory relief. The demurrer was sustained without leave
to amend as to the remaining causes of action.
       On February 22, 2011, plaintiff filed a second amended complaint with claims for
quiet title, declaratory relief, and writ of mandate. In the writ of mandate claim, she
asserted Cal Fire had acted arbitrarily and capriciously and abused its discretion in its
application of state law and Policy 0351.8 by refusing to grant her an easement. The
mandamus action was eventually severed for hearing.
       On January 31, 2012, the trial court filed its order denying the petition for writ of
mandamus contained in plaintiff’s third cause of action. The court found the Director

3
  We note each of the trial judges who heard features of this action below acknowledged
the willingness of Cal Fire to allow plaintiff access to or “use” of the roadway without the
grant of an equitable easement. At oral argument, counsel for defendant agreed with this
observation.
4
 Plaintiff subsequently dismissed her theories of easement by necessity and by
implication.

                                              4
had not abused his discretion when he denied plaintiff’s request for an easement on
March 15, 2010. The court found the Director’s conclusion that other potential access
routes “ ‘showed promise’ ” and “ ‘did not seem to have been pursued to conclusion’ ”
was not unfounded. There was also support for the Director’s position that granting a
permanent easement would be adverse to the JDSF’s function. Finally, the court noted
Cal Fire continued to allow plaintiff to use the access road and that she could resubmit
her request after she obtained more information.
       On February 2, 2012, the trial court filed its order granting Cal Fire’s motion for
summary adjudication on plaintiff’s prescriptive easement claim and her easement by
estoppel claim.
       On October 11, 2012, the trial court bifurcated the issue of the applicability of the
statue of limitations to plaintiff’s cause of action for an equitable easement.
       On August 26, 2013, the trial court filed its ruling on the issue of the applicability
of the statute of limitations. The court ruled against Cal Fire as to the triggering of the
statute of limitations.
       On May 28, 2014, the trial court filed its ruling after trial on the equitable
easement claim, which was the sole remaining issue in plaintiff’s action.
       On June 30, 2014, the trial court filed its judgment in favor of Cal Fire.
       On July 9, 2014, the trial court issued an amended ruling on the equitable
easement claim after plaintiff filed a request to correct and augment the ruling.
       On August 28, 2014, plaintiff filed a notice of appeal from the judgment (case
No. A142886).
III.   Petition for Writ of Mandate
       On April 12, 2012, Ken Pimlott, the current Director of Cal Fire, authored a letter
denying plaintiff’s renewed request for a permanent easement. The letter confirmed Cal
Fire would continue to allow full access to the property from the access road. At some
point, Cal Fire offered to enter into a use agreement with plaintiff for the route. This
offer was limited to plaintiff, and would not apply to any successor-in-interest.



                                              5
       On September 17, 2012, plaintiff filed a petition for writ of mandate against
Pimlott and Cal Fire. Plaintiff acknowledged that after the court ruled against her
mandamus action on January 31, 2012, she had renewed her request for an easement with
the agency.
       On December 17, 2013, the trial court issued its order denying the petition for writ
of mandate. The court concluded relief was not available under Code of Civil Procedure
section 1085 and, even if it was available, plaintiff had not shown any abuse of
discretion.
       On January 29, 2014, the trial court filed its judgment in favor of Cal Fire.
       On March 26, 2014, plaintiff filed a notice of appeal from the judgment (case
No. A141475). We consolidated the two appeals.
                                       DISCUSSION
I.     Standards of Review
       “In appropriate cases in which the requirements for traditional easements are not
present, California courts have exercised their equity powers to fashion protective
interests in land belonging to another, sometimes referring to such an interest as an
‘equitable easement.’ ” (Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, 1008
(Tashakori).) Plaintiff’s first obstacle is the deferential and limited scope of appellate
review. “When reviewing a trial court’s exercise of its equity powers to fashion an
equitable easement, we will overturn the decision only if we find that the court abused its
discretion.”5 (Ibid.)
       The standard of review used in an ordinary writ case is also abuse of discretion.
“ ‘ “Courts exercise limited review in ordinary mandamus proceedings. They may not
reweigh the evidence or substitute their judgment for that of the agency. They uphold an

5
  Plaintiff claims the standard of review is de novo because the trial court allegedly “erred
significantly in how it addressed the applicable law.” She appears to base this contention
on the trial court’s reliance on Civil Code section 1007, which prohibits prescriptive
easements on public land. As will become apparent in our discussion below, even if the
court erred in its interpretation of that statute, the error is harmless. Accordingly, we
apply the abuse of discretion standard per Tashakori, supra, 196 Cal.App.4th 1003.

                                              6
agency action unless it is arbitrary, capricious, lacking in evidentiary support, or was
made without due regard for the petitioner’s rights. [Citations.] However, courts must
ensure that an agency has adequately considered all relevant factors, and has
demonstrated a rational connection between those factors, the choice made, and the
purposes of the enabling statute. [Citation.] Because trial and appellate courts perform
the same function in mandamus actions, an appellate court reviews the agency’s action de
novo.” ’ [Citation.] When the trial court resolves conflicting evidence in ruling on a
traditional writ of mandate, we inquire whether the findings and judgment of the court are
supported by substantial evidence. [Citation.] When the court resolved questions of law
and applied the law to undisputed facts, our review is de novo.” (Westchester Secondary
Charter School v. Los Angeles Unified School Dist. (2015) 237 Cal.App.4th 1226, 1235–
1236.)
II.      Equitable Easement
         “In appropriate cases in which the requirements for traditional easements are not
present, California courts have exercised their equity powers to fashion protective
interests in land belonging to another, sometimes referring to such an interest as an
‘equitable easement.’ ” (Tashakori, supra, 196 Cal.App.4th at p. 1008.) To justify the
creation of an equitable easement, three factors must be present: First, the easement
seeker must use and improve property innocently—“ ‘[t]hat is, his or her encroachment
must not be willful or negligent.’ ” (Id. at p. 1009.) A court “ ‘should consider the
parties’ conduct to determine who is responsible for the dispute.’ ” (Ibid.) Second, the
easement opponent will not suffer irreparable harm by its creation. Third, the hardship of
denying the easement “ ‘ “must be greatly disproportionate to the hardship” ’ ” of
allowing it. (Ibid.)
         In Linthicum v. Butterfield (2009) 175 Cal.App.4th 259 (Linthicum), equitable
easement principles were applied defensively. In that case, the plaintiffs’ neighbors had
used a roadway over the plaintiffs’ land for many years, believing they had an easement
from the United States Forest Service. (Linthicum, at pp. 263–264.) The plaintiffs
bought the parcel and sought to enjoin the neighbors’ use of the road that provided the


                                              7
sole access to their properties. (Id. at p. 262.) No alternative access could be
constructed. (Id. at p. 265.)
       The trial court found that the plaintiffs purchased the parcel with full knowledge
of the historical use of the roadway and nevertheless sought to deprive their neighbors of
the value and use of their properties. (Linthicum, supra, 175 Cal.App.4th at p. 266.) The
court also found that the roadway did not substantially interfere with the plaintiffs’ right
to use and develop their property, yet the neighbors would suffer a catastrophic loss if
denied access to their properties. (Ibid.) The Court of Appeal affirmed, finding the lower
court “acted well within its discretion in denying the injunction.” (Id. at p. 267.)
       The equities were just as apparent and imbalanced in Tashakori, supra,
196 Cal.App.4th 1003. In Tashakori, as in the instant case, the trial court was asked to
exercise its inherent equitable power to fashion an equitable easement rather than to
enjoin an encroachment as in Linthicum, supra, 175 Cal.App.4th 259. “[T]he courts are
not limited to judicial passivity as in merely refusing to enjoin an encroachment. Instead,
in a proper case, the courts may exercise their equity powers to affirmatively fashion an
interest in the owner’s land which will protect the encroacher’s use.” (Hirshfield v.
Schwartz (2001) 91 Cal.App.4th 749, 765.)
       In Tashakori, as in Linthicum, one of the parties was innocent. The Tashakoris
bought adjoining parcels “with the innocent belief that an easement to the public road
existed.” (Tashakori, supra, 196 Cal.App.4th at p. 1010.) Both parcels shared a common
driveway. They later sold one of the parcels, which, unbeknownst to them, left their
remaining lot landlocked. (Id. at p. 1005.) The trial court found that the owners of the
other parcel would “suffer virtually no harm at all from the Tashakoris’ use of the shared
driveway to access Lot 18, and that the Tashakoris would be irreparably harmed if their
sole means of accessing their property were denied.” (Id. at p. 1010.) The court granted
an equitable easement over the common driveway, and the Court of Appeal affirmed.
(Id. at pp. 1005–1006.)
       In the present case, the trial court found plaintiff had failed to prove any of the
three factors required to justify her claim for an equitable easement. “Unless all three


                                              8
prerequisites are established, a court lacks the discretion to grant an equitable easement.”
(Shoen v. Zacarias (2015) 237 Cal.App.4th 16, 19 (Shoen).) As to the first factor, the
trial court found the Whites did not have “a good faith belief, based on a diligent
investigation, that they had unfettered rights to use the roadway.” Specifically, there was
no evidence that anyone in the chain of title to plaintiff’s parcel had ever been misled as
to the absence of a right of access. Importantly, Robert testified at trial that he knew the
parcel had no recorded access at the time he examined the deed, and acknowledged that
he had likely discussed this point with his brother William, plaintiff’s husband. The court
imputed William’s knowledge to plaintiff, and she does not challenge this aspect of the
court’s ruling on appeal. The instant case is thus distinguishable from Tashakori, supra,
196 Cal.App.4th at page 1006, in which the easement seekers were reasonably misled
into believing they already had a recorded easement for use of a neighbor’s driveway.
Accordingly, that case does not undercut the trial court’s findings here.
       While plaintiff’s failure to surmount this first hurdle is dispositive, we also
conclude the trial court’s findings as to the relative hardships to the parties are supported
by substantial evidence. The comparison of relative hardship analysis begins “tipped in
favor of the property owner [Cal Fire] due to the owner’s substantial interest in exclusive
use of [its] property arising solely from [its] ownership of [its] land.” (Shoen, supra, at
p. 19.) Indeed “courts approach the issue of equitable easements with ‘[a]n abundance of
caution’ [citation] and resolve all doubts against their issuance.” (Id. at p. 21, and cases
cited.) It is undisputed that without an easement, plaintiff can still access her property, as
she and her predecessors have done for decades, because Cal Fire has already agreed to
allow her to use the access road for as long as she owns the parcel. (Compare Tashakori,
supra, 196 Cal.App.4th at p. 1007 [without an easement “ ‘Lot 18 would be
inaccessible,’ ” unduly harming the easement seeker]; see also Miller v. Johnston (1969)
270 Cal.App.2d 289, 303, 307 [if the plaintiffs were denied the right to continue the use
of the defendants’ property they would have access to their property only by “extreme
hardship”].) While without an easement plaintiff may be in a less advantageous position
in terms of refinancing or selling her property, she is in no worse position than when her


                                              9
deceased husband and his brother bought the property, as they purchased it with full
knowledge that there was no recorded easement for access. Moreover, Cal Fire had
offered to grant them an easement in the past but its offer was refused.
       As to whether Cal Fire would suffer irreparable harm, the trial court could
reasonably find the agency needed to maintain complete control over the access road in
order to guard against illegal dumping and other harmful activities. It is undisputed that
many problems had occurred, and that these problems were attributable to unauthorized
use of the access road. While plaintiff suggests these activities are not presently
occurring, the court was entitled to take the access road’s history into account. We also
note that even doubtful cases should be decided in favor of the landowner and not the
encroacher. (Linthicum, supra, 175 Cal.App.4th at pp. 265–266.) In quarreling with the
trial court’s findings, plaintiff is in reality asking us “to reweigh the evidence and
substitute our discretion for that of the trial court. . . . [T]hese are not legitimate
functions of the Court of Appeal.” (In re Marriage of Bower (2002) 96 Cal.App.4th 893,
897.) In sum, plaintiff has failed to demonstrate either that the trial court’s underlying
findings are not supported by substantial evidence, or that the court abused its discretion
in refusing to award her an equitable easement.
III.   Writ of Mandate
       In her companion appeal of the denial of her separately filed petition for writ of
mandate, plaintiff asserts Pimlott abused his discretion in refusing to afford her a hearing
and in refusing to grant her request for an easement. Cal Fire counters that the trial court
was correct in concluding relief by way of petition for writ of mandate pursuant to Code
of Civil Procedure section 1085 was not available because neither Pimlott nor Cal Fire
are under any legal duty to grant permanent easements to any private landowner.
Alternatively, Cal Fire contends the decision to refuse plaintiff’s easement request did not
constitute an abuse of discretion.
       “It is generally recognized that traditional mandamus under [Code of Civil
Procedure] section 1085 applies to ‘[q]uasi-legislative’ decisions, defined as those
involving ‘ “the formulation of a rule to be applied to all future cases,” ’ while


                                               10
administrative mandamus under [Code of Civil Procedure] section 1094.5 applies to
‘quasi-judicial’ decisions, which involve ‘ “the actual application of such a rule to a
specific set of existing facts.” ’ ” (Southern California Cement Masons Joint
Apprenticeship Committee v. California Apprenticeship Council (2013) 213 Cal.App.4th
1531, 1541.) The decision to approve a private property owner’s easement request, based
as it is on the application of Policy 0351.8 to the particular circumstances of request, is
far more adjudicatory than legislative in nature, placing it in the natural domain of Code
of Civil Procedure section 1094.5. Yet because Cal Fire is not required to hold a hearing
before denying approval of such an easement request, its decisions do not fall within the
literal language of that section, which applies only to decisions rendered “as the result of
a proceeding in which by law a hearing is required to be given[ and] evidence is required
to be taken.” (Code Civ. Proc., § 1094.5, subd. (a).) As a result, it is not readily apparent
which statute should apply.
       We need not further address this issue, however, because even if traditional
mandamus is appropriate, we disagree with plaintiff’s contention that Pimlott abused his
discretion in denying her easement request. We first note that “[u]nlike the broad scope
of review provided in administrative mandamus proceedings, review by ordinary
mandamus is confined to an examination of the agency proceedings to determine whether
the action taken is arbitrary, capricious or entirely lacking in evidentiary support, or
whether it failed to conform to procedures required by law.” (Stauffer Chemical Co. v.
Air Resources Board (1982) 128 Cal.App.3d 789, 794.)6
       We have already concluded the trial court did not abuse its discretion in finding
plaintiff was not entitled to an equitable easement to the access road. We also observe
plaintiff has not appealed from the court’s ruling against her petition for writ of mandate
contained in her second amended complaint. Therefore, to the extent plaintiff’s claims of
error are based on matters that Walters considered in 2010, we deem those claims to be


6
 We note plaintiff does not contend that she sought to proceed under administrative
mandamus.

                                             11
waived. With these considerations in mind, we see nothing in the record to indicate that
Pimlott abused his discretion in denying her request for the same easement.
       Policy 0351.8 notes that private party easements on forest land are “sometimes
necessary to allow adjacent owners access, use and development of their property.” It
clearly states that while requests for such easements are “discouraged,” they “may be
considered when no other routing through non-State forest land is physically possible or
if such other routing presents substantial and unreasonable difficulties or environmental
damage.” (Italics added.) By its terms, the policy never requires Cal Fire to grant such
easement requests. Even when a private party lacks alternative access to their property,
the decision to grant an easement under Policy 0351.8 is entirely within Cal Fire’s
discretion. Nor does anything in the policy require Cal Fire to afford the applicant an
evidentiary hearing.
       The administrative record here contains a transcript of an October 7, 2008 Board
of Forestry and Fire Protection Management Committee meeting, in which the following
interpretation of Policy 0351.8 is stated as to the feasibility of alternate access: “[W]e
interpret that to mean that the bar is set pretty high. In other words[,] it’s not enough to
simply go to the . . . other possible adjacent [landowners] and ask them and when they
say no way then you go to Jackson State because it’s more expedient. It takes more than
that . . . .” At this same meeting, during which a different landowner’s request for an
easement was being considered (and ultimately rejected),7 the problems described
previously concerning trash dumping caused by unlocked gates on plaintiff’s property
were noted.
       An engineering report prepared on November 7, 2011, and submitted by plaintiff
to Cal Fire in support of her request, does not categorically rule out the possibility of an
alternate access route, though it notes the proposed alternative that it examined would be
difficult to construct and would entail a risk to the watershed from landslides or sediment

7
 We grant Cal Fire’s request to take judicial notice of the letter dated October 6, 2009,
denying a request by Diana Windlinx for an easement for permanent access to her
property. (See Evid. Code, § 452, subd (c).)

                                              12
due to stream crossings that would have to be built. The report concludes that the
existing access road presents far less maintenance and far less potential for detrimental
impacts to the surrounding natural resources. Even if this conclusion is accurate, it does
not compel us to find an abuse of discretion.8
       Plaintiff claims Cal Fire abused its discretion by (1) denying her the same level of
administrative review as the party whose request was discussed at the October 7, 2008
hearing, (2) failing to specify what documents or evidence it would need to grant an
easement, (3) generating its own documents for Pimlott’s review without allowing her to
respond to any inaccuracies contained therein, (4) not allowing her an opportunity to cure
any deficiencies in her evidence, (5) failing to explain or distinguish the eight known
occasions in which Cal Fire did grant access easements to other private landowners,
(6) erroneously maintaining that there were viable alternative access routes, (7) failing to
consider the environmental damage that would be caused by constructing a new road, and
(8) altering its policies without notice or approval from the Office of Administrative Law.
       As plaintiff does not cite to any rule requiring Cal Fire to grant her an evidentiary
hearing, we cannot say the failure to accord her a hearing amounts to an abuse of
discretion.9 As to the assertions that Pimlott failed to consider the potential
environmental impacts of the proposed alternative new road, plaintiff does not explain


8
  It is also unclear from the record if the route evaluated by plaintiff’s consultant is the
only available alternative. In his original denial letter, Walters noted “several possible
alternative access routes” that “did not seem to have been pursued to conclusion,” as well
as an “air photo” that “shows roads from structures on the subject property going out to
the west and connecting with Mitchell Creek Road.”
9
  Plaintiff maintains that Pimlot failed to adhere to a Cal Fire policy that includes “nine
procedural and substantive guidelines,” and she complains that Cal Fire started
“reconfiguring and reinterpreting the [policy], not unlike a situation where an agency
prepares an illegal ‘underground regulation’ without proper public notice of official
approval.” At oral argument, plaintiff’s counsel clarified that plaintiff’s specific
complaint is that Cal Fire wrongly changed its approach by using the guidelines to deny,
rather than to grant, easements. To the extent plaintiff is contending on appeal that this
alleged change of approach constitutes an underground regulation, we decline to address
it because the argument was not made below.

                                             13
how she knows he failed to consider this aspect of her consultant’s report. With respect
to Pimlott’s failure to explain or clarify what documents and evidence he would need in
order to grant an easement, she does not set forth the law or regulation that placed him
under such a duty to disclose. Nor does it appear he had an affirmative duty to
distinguish the present case from the cases in which Cal Fire had granted easement
requests in the past.10
         Plaintiff’s other arguments are premised on her belief that Pimlott “mistakenly”
denied her request, when it appears he was under no duty to grant it in the first instance.
We also note that while she did bring substantive and procedural due process claims in
her first amended complaint with respect to Walter’s denial of her easement request, the
trial court dismissed those claims after granting Cal Fire’s demurrer. In her opening brief
plaintiff does not assert the court’s ruling was in error. In sum, we cannot say plaintiff
has met her burden to show that Pimlott abused his discretion in refusing to grant her
easement request.
         We also disagree with her assertion that the trial court abused its discretion in
refusing to allow her to augment the administrative record with information relating to
the eight prior easements granted by Cal Fire. These easements did not concern her
property and were not contemporaneous to her request, the most recent easement having
been granted in 1997. The court could reasonably have concluded the proffered evidence
was not relevant to Pimlott’s decision.
                                        DISPOSITION
         The judgments are affirmed.




10
     Of the eight easements Cal Fire had granted, all but one were granted prior to 1980.

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                                 _________________________
                                 DONDERO, J.


We concur:


_________________________
HUMES, P.J.


_________________________
MARGULIES, J.




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A141475/A142886




                  16
