BROWN v.TEHAMA COUNTY BOARD OF SUPERVISORS

Filed 3/16/07 (appen. not included with computer version)

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Tehama)

----

APPEAL from a judgment of the Superior Court of Tehama County, Joseph B. Harvey, Judge. (Retired Judge of Lassen Sup. Court, assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.) Affirmed.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Tom Greene, Chief Assistant Attorney General, Mary E. Hackenbracht, Senior Assistant Attorney General, Richard M. Thalhammer and Ellyn S. Levinson, Deputies Attorney General for Plaintiffs and Appellants.

William James Murphy, County Counsel, Arthur J. Wylene, Deputy County Counsel, for Defendants and Appellants Tehama County Board of Supervisors, George Robson, and County of Tehama.

Kerr & Wagstaffe, James M. Wagstaffe, Michael von Loewenfeldt, and Emilia Mayorga, for Defendant and Appellant KAKE.

In this action, the People of the State of California, acting through the Attorney General, succeeded in obtaining an injunction requiring the Tehama County Board of Supervisors to apply the provisions of the Subdivision Map Act (Gov. Code,^[1] 66410 et seq.) to a lot line adjustment on property owned by defendant KAKE, LLC (KAKE). The trial court then awarded the Attorney General $173,450 in attorney fees against the county defendants^[2]under section 1021.5 of the Code of Civil Procedure, which is the codification of the private attorney general doctrine of attorney fee recovery.

On appeal from the judgment, KAKE and the county defendants contend the lot line adjustment was exempt from the Subdivision Map Act because it did not create a greater number of parcels than previously existed, and the trial court erred in concluding otherwise. In the unpublished portion of the opinion, we disagree and will therefore affirm the judgment.

On appeal from the award of attorney fees, the county defendants and the People both contend the trial court erred in basing its award under Code of Civil Procedure section 1021.5 on the conduct of the county defendants attorney during the litigation. We agree. We also agree with the county defendants, however, that where (as here) the plaintiffs are the People of the State of California, acting through the Attorney General to enforce the laws of the state, an award of attorney fees under Code of Civil Procedure section 1021.5 in favor of the People is improper. Accordingly, we will reverse the award of attorney fees against the county defendants.

FACTUAL AND PROCEDURAL BACKGROUND

KAKE owns approximately 3,300 acres in Tehama County known as Burr Valley Estates. Since 1971, the property has been subject to a Williamson Act contract with the county.

The Williamson Act establishes a mechanism for saving agricultural land by allowing counties to create agricultural preserves and then to enter into contracts with landowners within those preserves. (Gov. Code, 51200 et seq.) A Williamson Act contract obligates the landowner to maintain the land as agricultural for 10 or more years, with resulting tax benefits. (Id., 51240-51244.) Absent contrary action, each year the contract renews for an additional year, so that the use restrictions are always in place for the next nine to 10 years. (Id., 51244.) (Friends of EastWillitsValley v. County of Mendocino (2002) 101 Cal.App.4th 191, 195.)

In November 1998, KAKE applied for a lot line adjustment with respect to Burr Valley Estates (LLA 98-46). At that time, subdivision (d) of section 66412 (section 66412(d)) provided that the Subdivision Map Act did not apply to [a] lot line adjustment between two or more existing adjacent parcels, where the land taken from one parcel is added to an adjacent parcel, and where a greater number of parcels than originally existed is not thereby created . . . .

Tehama County planning director George Robson approved KAKEs lot line adjustment after determining it did not create any additional parcels. The Tehama County Board of Supervisors did not review the lot line adjustment or make any findings prior to Robsons approval.

Initially, documents were recorded showing 32 parcels resulting from the lot line adjustment. Ultimately, however, amended documents were recorded in October 1999 showing 29 resulting parcels.

In May 2001, the Attorney General, the secretary of the state Resources Agency, and the director of the Department of Conservation commenced this action on behalf of the People of the State of California (the People) by filing a complaint against the board of supervisors, Robson, and KAKE (jointly defendants), alleging violations of the Subdivision Map Act and the Williamson Act and seeking specific performance, injunctive relief, and declaratory relief. The People later joined the County of Tehama as a defendant.

Ultimately, the People filed a third amended complaint that alleged three causes of action, only one of which (the second) is at issue here. The People alleged KAKEs property consisted of only 24 parcels before the lot line adjustment. Thus, in the Peoples view, the adjustment created a greater number of parcels than originally existed and was therefore subject to the Subdivision Map Act. The People alleged defendants had divided the property in violation of the Subdivision Map Act because, among other things, the board of supervisors did not make the findings required by section 66474.4 specific to lands covered by Williamson Act contracts. Elsewhere in the complaint, the People also asserted that even if LLA 98-46 did not create any additional parcels, the board of supervisors was required by section 51257 of the Williamson Act [to make] certain specified findings . . . regarding agricultural compatibility because the property is enrolled in a Williamson Act contract. The People sought an injunction to prevent the county from issuing development permits for any lots created by LLA 98-46 until the provisions of the Williamson Act and the Subdivision Map Act were met.

In May 2002, Robson filed a motion for summary adjudication against the state Resources Agency on the first and second causes of action. The motion was subsequently treated as having been filed on behalf of all the county defendants against all plaintiffs. The trial court heard that motion on September 27, 2002, and entered its order denying the motion on December 30, 2002.

Meanwhile, in October 2002, KAKE filed its own motion for summary judgment or summary adjudication of the second cause of action.^[3] KAKE argued there was no violation of the Subdivision Map Act because LLA 98-46 did not result in the creation of any additional parcels. In KAKEs view, the property consisted of at least 32 parcels before the lot line adjustment, and thus the adjustment actually reduced the number of parcels to 29. KAKE also argued that section 51257 of the Williamson Act does not apply to lot line adjustments within the boundaries of contracted lands where the resulting lots are at least 40 acres in size.

In January 2003, the People filed a cross-motion for summary adjudication of the second cause of action. The People contended findings were required under section 66474.4 of the Subdivision Map Act because LLA 98-46 did create additional parcels, and even if no additional parcels were created, findings were still required under section 51257 of the Williamson Act.

The court heard both motions in May 2003, and on June 16, 2003, the court entered its order granting the Peoples motion and denying KAKEs motion. The court concluded that at the time KAKE applied for a lot line adjustment to create 29 parcels out of its 3,300 acres, the property then consisted of only two . . . or, at most, four . . . preexisting parcels and therefore it was necessary for KAKE to submit a parcel map to the board of supervisors and for the Board to find that the proposed division is compatible with the Williamson Act. In essence, the trial court concluded KAKEs division of its property was subject to the Subdivision Map Act. The court also rejected KAKEs argument that the action was barred by the statute of limitations in section 66499.37 of the Subdivision Map Act.

KAKE attempted to appeal from the order because it resolved all claims in the action against KAKE, but this court dismissed the appeal in December 2003 as being from a nonappealable order.

The trial court subsequently granted the Peoples motion for summary adjudication of the third cause of action and the county defendants motion for judgment on the pleadings as to the first cause of action. Thereafter, in December 2004, the court entered judgment consistent with its earlier rulings. In pertinent part, that judgment requires the county defendants to make such findings as may be required under the Williamson Act and Subdivision Map Act in regard to subdivisions of five or more parcels and prohibits KAKE from offering for sale any of the lots created by LLA 98-46 until the provisions of the Williamson Act and the Subdivision Map Act pertaining to subdivisions of five or more parcels are met.

The People then filed a motion for attorney fees under Code of Civil Procedure section 1021.5, seeking over $500,000 in fees from the county defendants.^[4] While that motion was pending, KAKE and the county defendants filed timely notices of appeal from the judgment. Subsequently, in May 2005, the court granted the Peoples motion and ordered the county defendants to pay $173,450 in attorney fees. The county defendants filed a timely notice of appeal from that order, and the People filed a timely notice of cross-appeal.^[5]

DISCUSSION

I

KAKEs And The CountyDefendants Appeals From The Judgment

A

Statute Of Limitations

In its opposition to the Peoples motion for summary adjudication, KAKE contended that to the extent the Peoples second cause of action was premised on an alleged violation of the Subdivision Map Act, that cause of action was time-barred by the statute of limitations in section 66499.37.^[6] In pertinent part, that statute provides as follows: Any action or proceeding to attack, review, set aside, void or annul the decision of an advisory agency, appeal board or legislative body concerning a subdivision, or of any of the proceedings, acts or determinations taken, done or made prior to such decision, or to determine the reasonableness, legality or validity of any condition attached thereto, shall not be maintained by any person unless such action or proceeding is commenced and service of summons effected within 90 days after the date of such decision. Thereafter all persons are barred from any such action or proceeding or any defense of invalidity or unreasonableness of such decision or of such proceedings, acts or determinations.

KAKE contended the Peoples claim of a violation of the Subdivision Map Act was time-barred by section 66499.37 because whatever the date of decision, it was no later than October 27, 1999, when the amended lot line adjustment was recorded, and the People did not commence their action until May 15, 2001, over a year and one-half later.

The trial court concluded section 66499.37 did not apply because the Peoples action was not an action for administrative review to attack, annul, or review a decision of defendant Robson or any other of the County defendants. KAKE contends the trial court erred in this conclusion.

We need not decide whether the trial courts reasoning was correct because we conclude the statute does not apply for a different reason -- specifically, KAKE has not shown that Robson (who approved LLA 98-46) qualified as an advisory agency, appeal board or legislative body within the meaning of the statute.

Implicitly conceding Robson did not qualify as an appeal board or legislative body, KAKE argues that he qualified as an advisory agency within the meaning of section 66415, which defines that term to mean a designated official or an official body charged with the duty of making investigations and reports on the design and improvement of proposed divisions of real property, the imposing of requirements or conditions thereon, or having the authority by local ordinance to approve, conditionally approve or disapprove maps. The problem is that KAKE makes no attempt to show how Robson fits within that definition. Specifically, KAKE points to nothing (either in the record or otherwise) to show that Robson: (1) was charged with the duty of making investigations and reports on the design and improvement of proposed divisions of real property; (2) was charged with the duty of imposing . . . requirements or conditions on the design and improvement of proposed divisions of real property; or (3) ha[d] the authority by local ordinance to approve, conditionally approve or disapprove maps.

KAKE characterizes as unfounded the Peoples assertion that Director Robson did not have authority to approve or disapprove maps, but this argument improperly attempts to shift the burden of proof and persuasion on this argument from KAKE to the People. It is not the Peoples burden to show that Robson did not have the authority necessary to make him an advisory agency within the meaning of section 66415, but KAKEs burden to show that he did. Because KAKE was the party attempting to rely on the statute of limitations as a defense to the Peoples action, it was KAKE that had to show the existence of all elements necessary for Robsons action to have triggered that statute. Similarly, because it is KAKE that now contends the trial court erred in finding the statute inapplicable, it is KAKE that bears the burden of persuading us the trial court erred in reaching that conclusion.

Unfortunately, the only effort KAKE makes to show Robson falls within section 66415 is an oblique argument that the authority to approve a lot line adjustment is the equivalent of the authority to approve a map within the meaning of Government Code section 66415. We are not persuaded. We understand the reference in section 66415 to the the authority . . . to approve, conditionally approve or disapprove maps to be a reference to the maps that are the subject of the Subdivision Map Act -- tentative, final, and parcel maps. (See 66425.) KAKE offers nothing to suggest Robson had the power to approve or disapprove such maps under any local ordinance. While he may have had the authority to approve a lot line adjustment, [n]o tentative map, parcel map, or final map [can] be required as a condition to the approval of a lot line adjustment ( 66412), and therefore his authority to approve such an adjustment does not imply the authority to approve a map within the meaning of section 66415.

For the foregoing reasons, we conclude KAKE has failed to show the 90-day limitations period in section 66499.37 applies here.

B

Section 66412(d)

As we have noted, in 1998 when Robson approved LLA 98-46, section 66412(d) provided that the Subdivision Map Act did not apply to [a] lot line adjustment between two or more existing adjacent parcels, where the land taken from one parcel is added to an adjacent parcel, and where a greater number of parcels than originally existed is not thereby created . . . . (Stats. 1994, ch. 458, 2.) In 2001, the Legislature amended the statute to provide that this exception from the Subdivision Map Act applies only when the lot line adjustment is between four or fewer existing adjoining parcels, rather than between two or more existing adjacent parcels as the statute previously provided. (Stats. 2001, ch. 873, 2.) In essence, the amendment limits this exception from the Subdivision Map Act to lot line adjustments involving two, three, or four adjacent parcels; lot line adjustments involving five or more adjacent parcels are subject to the Subdivision Map Act.

In the trial court, this case was litigated and resolved on the shared belief that the former version of section 66412(d) governed. On appeal, however, the People contend [a]pplication of the current version of [the statute] is appropriate. According to the People, this is so because, on review of an injunction, the court applies the law in effect at the time of review.

We need not decide whether application of the correct version of section 66412(d) is appropriate because, as will be seen, even under the version of the statute that was in effect when Robson approved LLA 98-46, the People prevail.

C

Parcel Counting

The primary issue in these appeals is whether LLA 98-46 created more parcels than existed immediately before the lot line adjustment. Since it is undisputed LLA 98-46 resulted in 29 parcels, the dispositive question is whether there were 29 or more parcels before the adjustment. If there were 29 or more parcels, then LLA 98-46 did not create a greater number of parcels and KAKEs division of its property was exempt from the Subdivision Map Act. If there were fewer than 29 parcels, then LLA 98-46 did create a greater number of parcels and the Subdivision Map Act applied.

All parties agree the question of how many parcels existed immediately before the lot line adjustment is a question of law to be answered based on the undisputed history of title to the land that now makes up Burr Valley Estates, as summarized and detailed by John Blodger, a land surveyor with the state Department of Conservation.

In determining how may parcels existed, it is helpful to note what is not disputed. It is undisputed that Burr Valley Estates is made up of all or part of seven different sections,^[7]numbered 4, 5, 9, 10, 15, 32, 33, and 34. (Further, the parcel count with regard to four of those sections -- 4, 9, 15, and 33 -- is undisputed; the parties agree there were 14 parcels in those sections: 5 in section 4, 1 in section 9, 1 in section 15, and 7 in section 33.^[8]

Where the parties disagree is on the number of parcels in sections 5, 10, 32, and 34. The People contend there were 2 parcels in sections 5 and 32, 2 parcels in section 10, and 3 parcels in section 34 -- which, when added to the 14 undisputed parcels, makes a total of 21 parcels. KAKE, on the other hand, contends there were 4 parcels in section 10, 14 parcels in section 34, and either 5 or 8 parcels in sections 5 and 32^[9]-- for a total of either 37 or 40 parcels. The county defendants agree with KAKE that there were 4 parcels in section 10 and at least 10 parcels in section 34. According to them, however, since this means there were at least 28 parcels (14 plus 4 plus 10) before counting the parcels in sections 5 and 32, then even if the People are correct in counting only 2 parcels in those sections, the total still exceeds 29.

From the foregoing, it appears the crux of the case is the parcel counting in sections 10 and 34. Thus, we begin our analysis with the number of parcels that were in sections 10 and 34 immediately before LLA 98-46.

Before turning to that analysis, we pause to note two principles the parties do not dispute. First, it is undisputed that mere common ownership of separate contiguous parcels does not result in merger of those parcels into a new, single parcel. (See 66451.10, subd. (a) [two or more contiguous parcels or units of land which have been created under the provisions of this division, or any prior law regulating the division of land, or a local ordinance enacted pursuant thereto, or which were not subject to those provisions at the time of their creation, shall not be deemed merged by virtue of the fact that the contiguous parcels or units are held by the same owner].)

Second, it is undisputed that when two or more parcels that have been separately and distinctly described in an instrument of conveyance or security document are subsequently conveyed together using a single, consolidated legal description, those parcels are not merged into a single parcel absent an express statement by the grantor of the intent to do so in the instrument of conveyance. This principle is based on Civil Code section 1093, which provides as follows: Absent the express written statement of the grantor contained therein, the consolidation of separate and distinct legal descriptions of real property contained in one or more deeds, mortgages, patents, deeds of trust, contracts of sale, or other instruments of conveyance or security documents, into a subsequent single deed, mortgage, patent, deed of trust, contract of sale, or other instrument of conveyance or security document (whether by means of an individual listing of the legal descriptions in a subsequent single instrument of conveyance or security document, or by means of a consolidated legal description comprised of more than one previously separate and distinct legal description), does not operate in any manner to alter or affect the separate and distinct nature of the real property so described in the subsequent single instrument of conveyance or security document containing either the listing of or the consolidated legal description of the parcels so conveyed or secured thereby.

Civil Code section 1093 was not enacted until 1985 (Stats. 1985, ch. 911, 1, p. 2905), long after the conveyances at issue here; however, the Legislature declared that the statute did not constitute a change in, but is declaratory of, the existing law. (Civ. Code, 1093.) No party disputes the accuracy of this declaration. As will be seen, while we have reason to question the declarations accuracy, there is no need here to actually determine whether section 1093 accurately expresses the law as it was before 1986. Accordingly, we will assume for purposes of this case that it does.

1. Section 10

With the foregoing principles in mind, we turn to the counting of parcels in section 10. As relevant here, that section was originally comprised of four separate parcels created by federal patents.^[10] By 1904, Charles Hesse owned two of those parcels: one consisting of the west half of the west half of the section and the other consisting of the east half of the southwest quarter and the southeast quarter of the northwest quarter of the section. The other two parcels -- one consisting of the south half of the northeast quarter and the west half of the southeast quarter of the section, and the other consisting of the east half of the southeast quarter of the section -- were owned by G. C. Garrett and C. E. Tinkham. (See appen., p. 1.)

A county road known as Ridge Road ran through all four parcels roughly east to west in the south half of the section. In 1904, a land exchange accomplished by three different deeds conveyed all of the land in section 10 south of Ridge Road to B. A. Bell, while Charles Hesse became the owner of all the land in section 10 north of Ridge Road that had been part of the four parcels. (See appen. p. 1.) The land south of Ridge Road is not part of Burr Valley Estates and is not at issue here. What is at issue is how many parcels Charles Hesse owned in section 10 following the 1904 land exchange.

TO BE CONTINUED AS PART II..

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^* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of part I of the Discussion, which includes the appendix.

^[1] All further statutory references are to the Government Code unless otherwise indicated.

^[2] These are the County of Tehama, the Tehama County Board of Supervisors, and Tehama County planning director George Robson.

^[3] Because the second cause of action was the only cause of action in the third amended complaint directed against KAKE, it would have sufficed if KAKE had filed a motion for summary judgment only.

^[4] The People later sought additional fees under Code of Civil Procedure section 1021.8, but the trial court denied that request on the ground it was based on an unconstitutional purported amendment to the statute. The People do not contest that ruling on appeal.

^[5] Both notices of appeal purport to appeal from a postjudgment order entered on May 11, 2005. That was the date the notice of entry of order was filed; the order itself was filed on May 3. Because no one has complained and it is apparent what order the parties intended to appeal, we will liberally construe the notices of appeal and treat them as referring to the Order Re Costs And Attorney Fees entered May 3, 2005. (See Cal. Rules of Court, rule 8.100(a)(2).)

^[6] KAKE also contended that to the extent the second cause of action was premised on an alleged violation of section 51257 of the Williamson Act, the cause of action was time-barred by the statute of limitation in subdivision (c)(1) of section 65009. KAKE does not renew this argument on appeal. Accordingly, we address only the limitations issue under the Subdivision Map Act.

^[7] When California became a state, federal surveyors divided it into a rectangular grid centered around one of three base and meridian landmarks. . . . Each of the townships in the grid is formed by the intersection of township and range lines and is identified by its position relative to [one of] th[es]e central point[s]. . . . A township is approximately 6 miles square and consists of 36 sections, each about a mile square and containing 640 acres. (Pleasant Valley Canal Co. v. Borror (1998) 61 Cal.App.4th 742, 755, fn. 7.)

^[8] No party agrees with the trial courts conclusion that there were either two or four parcels in Burr Valley Estates immediately before the lot line adjustment.

^[9] KAKE actually contends the parties agree there was one preexisting parcel in section 32 and disagree only on the number of preexisting parcels in section 5. This misconception arises from an error in the Peoples papers. In their memorandum in support of their cross-motion for summary adjudication, the People asserted at two points that there was 1 parcel in section 32 and 1 parcel partly in section 5 and partly in section 32. At another point, they asserted there was just one parcel in section 5 and one parcel, partly in section 5 and partly in section 32, prior to the so-called Lot Line Adjustment.

The People repeat this inconsistency in their appellate brief. Nonetheless, it is apparent the People rely on Blodgers analysis with regard to sections 5 and 32, and Blodger concluded there were 2 parcels in these sections -- 1 lying entirely in section 5 and another lying partly in section 5 and partly in section 32. Thus, notwithstanding KAKEs assertion that the disagreement pertains only to section 5, we will analyze both section 5 and section 32.

^[10] A patent is [a] grant made by a government that confers on an individual fee-simple title to public lands. (Kellogg v. Garcia (2002) 102 Cal.App.4th 796, 800, fn. 1.)

Part of section 10 -- the north half of the northeast quarter and the northeast quarter of the northwest quarter -- was never part of the property now making up Burr Valley Estates, and we do not concern ourselves with that part of the section.