Filed 8/14/15



                           CERTIFIED FOR PUBLICATION
          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                          FOURTH APPELLATE DISTRICT
                                     DIVISION TWO


JOSEPH COPPINGER, Jr. et al.,
        Plaintiffs and Appellants,
v.                                                    E060664
ROGELIO RAWLINS et al.,                               (Super.Ct.No. RIC1218874)
        Defendants and Respondents                    OPINION




        APPEAL from the Superior Court of Riverside County. Craig G. Riemer, Judge.

Affirmed.

        Law Office of Michael V. Hesse and Michael V. Hesse for Plaintiffs and

Appellants.

        Dickman & Holt and John G. Dickman and Montessa D. Holt for Defendants and

Respondents Rogelio Rawlins and Maria Rawlins.

        Arias & Lockwood and Christopher D. Lockwood; Dana M. Smith, Riverside

County Counsel for Defendants and Respondents County of Riverside.

        Prior owners subdivided their land into two parcels, dedicating narrow lots “A,”

“B,” and “C,” to defendant County of Riverside (County) for public road and utility


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purposes. The County accepted the dedication in 1980, with the proviso that Lots “B”

and “C” would not immediately become part of the county-maintained road system. In

1984, plaintiffs Joseph and Connie Coppinger purchased one parcel. Defendants Rogelio

and Maria Rawlins purchased the other parcel, and used Lot “C” for ingress and egress.

Plaintiffs erected a gate to prevent the Rawlinses from using Lot “C,” and eventually

filed a lawsuit against the Rawlins and the County for quiet title, trespass, injunctive

relief, and declaratory relief. The Rawlinses and the County demurred to the third

amended complaint, and the trial court sustained the demurrer without leave to amend.

Plaintiffs appealed.

       On appeal, plaintiffs argue that (1) the dedication of the public right of way

constituted a “taking” from the prior owners under the Federal Bill of Rights; and (2) the

County’s acceptance of the dedicated lots did not constitute an unconditional acceptance

within the meaning of the Subdivision Map Act, constituting rejection of the dedication,

and reverting title to Lot “C” to plaintiffs. We affirm.

                                       BACKGROUND

       Prior to October 1980, the property in question, consisting of 2.43 acres in

Riverside County, California, was owned by John and Nancy Robinson. The property is

situated at the intersection of Nance Street and Clark Street in an unincorporated portion

of Riverside County.

       In October 1980, Robinson subdivided the property into Parcels 1 and 2, and

dedicated Lots A through C, comprising thirty-foot strips of land, for public use for street



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and public utility purposes. According to Parcel Map No. 14895, Lot A runs along Clark

Street, Lot B runs along Nance Street, on one side of Parcel 2, while Lot C, an extension

of Lot B, runs along Nance Street on the same side of Parcel 1. The County accepted the

offer of dedication. Lot “A” was accepted as part of the county-maintained road system,

while Lots B and C were accepted to vest title in the county on behalf of the public “for

said purposes, but said road shall not become part of the county-maintained road system

until accepted by resolution of the County Board of Supervisors.”

       On December 4, 1984, the Robinsons executed a grant deed, conveying Parcel 1,

along with Lettered Lot C, to plaintiffs. That deed was recorded on February 26, 1985,

and refers to Parcel Map No. 14895. The Rawlinses own a lengthy parcel running

roughly east and west, located immediately to the north of Lots B and C. To perform an

improvement on the westerly portion of their property, the Rawlinses needed access over

the dedicated public right of way, that is, Lots B and C. A fence runs along the boundary

line between Lot C and the Rawlins’ property; Plaintiffs alleged this fence was erected by

their predecessors in interest, while the Rawlinses alleged that plaintiffs erected it to bar

public access to and across Lot C.

       The Rawlinses filed a complaint to abate nuisance against plaintiffs in November

2012, but this action was voluntarily dismissed shortly thereafter. Then plaintiffs filed a

complaint against the Rawlinses in December 2012. Eventually, a Third Amended

Complaint was filed on August 22, 2013, against the Rawlinses and the County, seeking

(a) to quiet title to Lot C (first cause of action, against all defendants), (b) damages for



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trespass (second cause of action, against Rawlins), (c) injunctive relief to abate nuisance

(third cause of action, against Rawlins), and (d) declaratory relief (fourth cause of action,

against all defendants).

       The County and the Rawlins defendants demurred to first, second, and fourth

causes of action of the third amended complaint. On October 31, 2013, the trial court

sustained the demurrers without leave to amend. Plaintiffs voluntarily dismissed the third

cause of action. Following the entry of judgment of dismissal of the entire action, the

plaintiffs appealed.

                                         DISCUSSION

                       The Trial Court Properly Sustained the Demurrers.

       The County and the Rawlins defendants demurred to the third amended complaint

on multiple grounds. Their main objection was that the complaint failed to state facts

sufficient to constitute a cause of action because the County’s acceptance of the

Robinsons’ offer of dedication was absolute, such that the complaint failed to state facts

sufficient to constitute a cause of action under Code of Civil Procedure section 771.010,

affecting plaintiffs’ right to quiet title to the property, seek damages for trespass, and

obtain injunctive relief. The trial court ruled that the County had accepted the dedication,

although it did not accept it into the road maintenance system. On appeal, plaintiffs make

several arguments under separate headings challenging the trial court’s ruling that the

County had properly accepted the Robinsons’ offer of dedication of the public right of

way on Lot “C.”



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       a.     Standard of Review

       On appeal, when a demurrer has been sustained, we determine whether the

complaint states facts sufficient to constitute a cause of action, and, when it is sustained

without leave to amend, we decide whether there is a reasonable possibility that the

defect can be cured by amendment: if it can be, the trial court has abused its discretion

and we reverse. (Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1100.) We treat the

demurrer as admitting all material facts properly pleaded, but we do not assume the truth

of contentions, deductions or conclusions of law. (Aubry v. Tri-City Hospital Dist.

(1992) 2 Cal.4th 962, 967.) We liberally construe the pleading to achieve substantial

justice between the parties, giving the complaint a reasonable interpretation and reading

the allegations in context. (Code Civ. Proc., § 452; Schifando v. City of Los Angeles

(2003) 31 Cal.4th 1074, 1081.) The judgment must be affirmed if it is correct on any

ground stated in the demurrer, regardless of the trial court’s stated reasons. (Aubry v. Tri-

City Hospital Dist., supra, 2 Cal.4th at p. 967; Fremont Indem. Co. v. Fremont General

Corp. (2007) 148 Cal.App.4th 97, 111.)

       When a demurrer is sustained, we determine de novo whether the complaint

alleges facts sufficient to state a cause of action under any legal theory. (McCall v.

PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) When a demurrer is sustained

without leave to amend, we must also decide whether there is a reasonable possibility that

the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) If

the complaint can be cured, the trial court has abused its discretion in sustaining without



                                              5
leave to amend. (Ibid; see also, Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181

Cal.App.4th 471, 481-482.)

       b.      Plaintiffs Failed to Establish All the Elements Under Code of Civil

Procedure, Section 771.010, Which is Fatal to All Causes of Action.

       Plaintiffs alleged in their complaint, and in opposition to the defendants’

demurrers, that all of the conditions of Code of Civil Procedure section 771.010 were

satisfied, as the basis for all causes of action. At issue, therefore, is the second condition:

whether there was an acceptance of the dedication made and recorded within 25 years

after the map was filed. As to this condition, the plaintiffs urged in the trial court and

now urge on appeal that the County’s acceptance of the offer of dedication was

ineffectual.

       Code of Civil Procedure, section 771.010, relating to proposals to dedicate real

property for public improvement, provides that there is a conclusive presumption that the

proposed dedication was not accepted if all of the following conditions are satisfied:

(a) The proposal was made by filing a map only; (b) No acceptance of the dedication was

made and recorded within 25 years after the map was filed; (c) The real property was not

used for the purpose for which the dedication was proposed within 25 years after the map

was filed; and (d) The real property was sold to a third person after the map was filed and

used as if free of the dedication.

       A dedication is the transfer of an interest in real property to a public entity for the

public’s use. (Biagini v. Beckham (2008) 163 Cal.App.4th 1000, 1009.) A statutory



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dedication is effected when, in compliance with the version of the Subdivision Map Act

then in force, an offer of dedication is accepted by the public agency. (Ibid; see also,

Scott v. City of Del Mar (1997) 58 Cal.App.4th 1296, 1302.) A public agency’s mere

nonuse of dedicated land does not show abandonment or give rise to an estoppel claim.

(Scott v. City of Del Mar, supra, 58 Cal.App.4th at p. 1304.) Doubts and conflicts

appearing upon a map prepared and recorded by the owner of real property for the

purpose of creating a subdivision of it are to be construed most strongly against him, but

the law has never allowed private property to be taken for public purposes except upon

clear and unequivocal proof of an intention to dedicate it for such use. (Manhattan Beach

v. Cortelyou (1938) 10 Cal.2d 653, 662.)

         To establish dedication of land for public use, there must be an unequivocal and

clear manifestation of intent to dedicate. (Faus v. County of Los Angeles (1967) 256

Cal.App.2d 604, 610.) Dedication is not governed by the ordinary rules applicable to the

law of contracts. (Tischauser v. Newport Beach (1964) 225 Cal.App.2d 138, 143.) As a

voluntary transfer of an interest in land, a dedication partakes both of the nature of a grant

and of a gift, and is governed by the fundamental principles which control such

transactions. (Ibid; County of Inyo v. Given (1920) 183 Cal. 415, 418.) Like a contract, a

dedication consists of an offer and acceptance, and is not binding until unequivocal

acceptance has been established. (Biagini v. Beckham, supra, 163 Cal.App.4th at p.

1009.)




                                              7
       Parcel Map No. 14895 depicts the proposed subdivision by plaintiffs’ predecessor

in interest, the Robinsons.1 The map includes Lots A, B, and C, the strips of land the

Robinsons offered to dedicate to the County in 1980. It also includes the “Board of

Supervisors Certificate,” by which the Board approved the Parcel Map and “accept[ed]

the offer of dedication made [thereon] of Lot ‘A’ for public road and public utility

purposes and as part of the county-maintained road system. The offers of Lots ‘B’ and

‘C’ for public road and public utility purposes are accepted to vest title in the County on

behalf of the public for said purposes, but said road shall not become part of the county-

maintained road system until accepted by resolution of this Board adopted pursuant to

Section 941 of the Streets and Highways Code.”

       In arguing whether or not the County accepted the offer, all parties point us to

Government Code section 66477.1, subdivision (a), which states, “At the time the

legislative body or the official designated pursuant to Section 66458 approves a final

map, the legislative body or the designated official shall also accept, accept subject to

improvement, or reject any offer of dedication.” Plaintiffs argued in the trial court, and

again on appeal, that dedication of property for “public road and public utility purposes”

necessarily requires that the road becomes a part of the county-maintained road system.

From this they conclude that the Board of Supervisors’ acceptance of the offer of




       1  Although the trial court did not expressly rule on the parties’ requests for
judicial notice, we can and do. (Evid. Code, § 459.)


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dedication was qualified or incomplete because it excepted the public road dedication of

Lots “B” and “C” from the county-maintained system. We disagree.

       Streets and Highway Code section 941 provides that no public or private road

shall become a county highway except by resolution of the Board of Supervisors

including such road in the county road system. (See Benitez v. City and County of San

Francisco (1978) 77 Cal.App.3d 918, 921.) The fact that the County refuses to accept a

road as a county road, imposing responsibilities for maintenance on the County, is not

inconsistent with its status as a “public road.” (Hanshaw v. Long Valley Road Assn.

(2004) 116 Cal.App.4th 471, 481.)

       In other words, Streets and Highway Code section 941 creates a presumption that

an offer of dedication of land “for use as a public road”—without more—will not be

included in the county-maintained road system, because additional action is necessary to

achieve that end. Acceptance by the user does not mean the road becomes a county

highway. (Hanshaw v. Long Valley Road Assn., supra, 116 Cal.App.4th at p. 479.) “No

city shall be held liable for failure to maintain any road until it has been accepted into the

city street system in accordance with subdivision (b) or (c)” of Streets and Highways

Code section 1806. (Sts. & Hy. Code, § 1806, subd. (a).) As such, the additional

language included in the County’s acceptance of the offer of dedication was surplusage;

it did not signify a qualified acceptance or a rejection of the offer of dedication.

       Plaintiffs’ reliance on the case of County of Yuba v. Central Valley Nat. Bank, Inc.

(1971) 20 Cal.App.3d 109 is unhelpful. The issue in that case was whether the Bank was



                                              9
required to pay the County under an instrument of credit to secure the performance of

street improvements and drainage facilities by a contractor after the contractor abandoned

plans for a subdivision before any work was begun. That case did not involve the

interpretation of a County’s acceptance of an offer of dedication for use as a public road

or utility.

        Similarly, plaintiffs’ reliance on Mikels v. Rager (1991) 232 Cal.App.3d 334

[Fourth Dist, Div. 2] is also misplaced. In that case, the offer to dedicate was accepted

subject to improvements, which led to a conclusion that it was only conditionally

accepted. (Id. at pp. 353-354; see also, Hanshaw v. Long Valley Road Assn., supra, 116

Cal.App.4th at p. 480.) That authority is inapposite here, where the County expressly

accepted the offer of dedication and imposed no condition relating to improvements.

        The offer of dedication of Lots ‘B’ and ‘C’ was expressly accepted by the County

Board of Supervisors in its certification of the Parcel Map. The deed conveying title to

the plaintiffs refers to Parcel Map No. 14895, which is interpreted as repeating and

reinforcing the offer to dedicate. (Tischauser v. City of Newport Beach, supra, 225

Cal.App.2d 138, 144.) The sale of the land offered for dedication did not terminate the

offer, and the subsequent landowners—plaintiffs—were bound by their predecessor’s

offer to dedicate. (Quacchia v. County of Santa Cruz (1958) 164 Cal.App.2d 770, 771

[respondents were bound by their predecessor’s offer to dedicate].)

        Plaintiffs acquired title to the property by way of a deed which made express

reference to Parcel Map No. 14895, in which the offer of dedication of Lots “A” through



                                            10
“C” was recorded. Plaintiffs were not subjected to a “taking” by the County because the

offer of dedication was made and accepted prior to their acquisition of title. Having

failed to demonstrate that the trial court erred in ruling that the County’s acceptance of

the offer of dedication was void or ineffectual, they have not met their burden of

establishing reversible error. The trial court properly sustained the demurrers. We do not

need to reach the objections grounded on plaintiffs’ failure to file and record notice of the

pending action.

       c.     “Taking” Claims.

       Although not alleged in their complaint, plaintiffs assert on appeal that the

Robinsons were subjected to an unconstitutional taking by the County’s imposition of a

condition that they (the Robinsons) dedicate their land for public use as a condition of

their proposed subdivision. We do not reach any constitutional claims because plaintiffs

have cited no authority giving them standing to raise the claims on behalf of the

Robinsons, and the claims were not preserved in the trial court. (City of San Diego v.

D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 685.)

       In any event, “no possession by any person, firm or corporation no matter how

long continued of any land, water, water right, easement, or other property whatsoever

dedicated to a public use by a public utility, or dedicated to or owned by the state or any

public entity, shall ever ripen into any title, interest or right against the owner thereof.”

(Civ. Code, § 1007; Hays v. Vanek (1989) 217 Cal.App.3d 271, 286.)




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       At oral argument, plaintiffs drew our attention to the recent decision in Jefferson

Street Ventures, LLC v. City of Indio (2015) 236 Cal.App.4th 1175, in which Division

Three of the Fourth Appellate District reversed a judgment denying a petition for

administrative mandate because the City of Indio’s development restrictions constituted

an uncompensated taking. In that case Jefferson acquired a 26.85 acre parcel of land, and

submitted a development proposal to the City to construct a retail shopping center. The

proposal affected property on which Interstate 10 interchange projects were

contemplated. Thus, certain restrictions were placed on the plaintiff’s development

proposal that reduced the developable area of Jefferson’s property to 17.1 acres. (Id., at

pp. 1184-1185.)

       Jefferson filed an action for writ of mandate alleging the City lacked authority to

condition approval of the project on leaving any portion of the property undeveloped, and

included a cause of action for inverse condemnation challenging the regulatory taking

and a forced dedication of private property. (Jefferson Street Ventures, supra, 236

Cal.App.4th at p. 1188.) The reviewing court agreed that the restrictions constituted an

uncompensated taking of the property on which development was prohibited by the City.

(Id., at p. 1192.)

       That case is wholly inapposite here: First, plaintiffs were not forced to dedicate

any portion of their property as a condition of their use of it; it was already subject to an

accepted dedication when they purchased it, so they purchased the property subject to,

and with constructive notice of, the dedication. The Coppingers were not adversely



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affected by the dedication because they were not compelled to make the dedication.2 If

there was any taking at all, it would have been a taking from the Robinsons, well before

plaintiffs acquired the property. Second, in the Jefferson Street Ventures case, the

plaintiff argued the taking claim in his complaint, and at the hearing on the mandamus

petition. As we have pointed out, no such theory was either pled or orally argued in the

trial court proceedings in the present case.

         d.     There Is No Reasonable Possibility that the Defect in the Pleadings Can Be

Cured.

         We now turn to the question of whether plaintiffs had demonstrated a reasonable

possibility that the pleading defect can be cured. The burden of proving such reasonable

possibility rests squarely on the plaintiffs. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318;

Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 520, fn. 16.)

         Both in the trial court and on appeal, plaintiffs have not explained how an

amendment to their complaint would cure the defect. Plaintiffs forfeited any further

leave to amend by failing to request leave in the trial court or to argue on appeal that the

trial court’s denial of leave to amend was error. (Reynolds v. Bement (2005) 36 Cal.4th

1075, 1091; Freeny v. City of San Buenaventura (2013) 216 Cal.App.4th 1333, 1347.)

                                            DISPOSITION

         The judgment is affirmed. Defendants are awarded costs.


         2
        As such, they had no primary right to state a cause of action. (See Gamble v.
General Foods Corp. (1991) 229 Cal.App.3d 893, 898.)


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     CERTIFIED FOR PUBLICATION
                                      RAMIREZ
                                                P. J.


We concur:

HOLLENHORST
                  J.

MILLER
                  J.




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