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Court of Appeal, Second District, Division 4, California.

COUNTY OF LOS ANGELES, etc., Plaintiffs, Cross-Defendants and Respondents, v. Shirley BERK, Individually and as Executrix of the Estate of Oscar Berk, et al., Defendants, Cross-Complainants and Appellants.

CITY OF TORRANCE, etc., Plaintiffs and Respondents, v. Shirley BERK, Individually and as Executrix of the Estate of Oscar Berk, et al., Defendants and Appellants.

Civ. 45732, 45573.

Decided: January 19, 1979

Fadem, Berger & Norton and Michael M. Berger, Santa Monica, for defendant, cross-complainant and appellant Shirley Berk. John H. Larson, County Counsel and Charles Vinson Tackett, Deputy County Counsel, Los Angeles, for plaintiff, cross-defendant and respondent County of Los Angeles. Stanely E. Remelmeyer, City Atty. and A. D. “Jack” Allen, Torrance, for plaintiffs and respondents City of Torrance. Evelle J. Younger, Atty. Gen., N. Gregory Taylor and Robert H. Connett, Asst. Attys. Gen., and Katherine E. Stone, Deputy Atty. Gen., as amici curiae on behalf of the State Lands Commission and California Coastal Commission of the State of California.

In March 1971, the City of Torrance, a municipal corporation, and the County of Los Angeles, as trustees for the public, brought separate actions to establish public beach recreation easements on certain beach property located in Los Angeles County and owned by Oscar and Shirley Berk. Named as defendants, in addition to the Berks, were persons alleged to have security interests in the property. These included United California Bank, Fidelity Federal Savings and Loan Association, and J. Halperin & Co. of California, Inc. and John Halperin.

The City of Torrance filed its action on March 12, 1971, and the County of Los Angeles filed its action on March 23, 1971. The theory asserted in each complaint was that the public, for a period of at least five years preceding the action, had made uninterrupted and continuous use of the property for recreational purposes, with full knowledge of all successive owners of the property and without asking or receiving permission to do so from the owners. The legal theory of plaintiffs' actions rested on the doctrine that there had been an implied dedication of the parcels of property for public recreational use.

The plaintiffs' theory of the Recreational easement in beach or shoreline property by implied dedication was derived from the companion cases of Gion v. City of Santa Cruz and Dietz v. King (hereinafter Gion-Dietz ), decided together in one opinion by the California Supreme Court on February 19, 1970, and reported in 2 Cal.3d 29, 84 Cal.Rptr. 162, 465 P.2d 50. In essence Gion-Dietz held that a public recreational easement in shoreline or beach property would be created under the legal principle of an implied dedication of property upon a showing of public use of the land for recreational purposes “ ‘for a period of more than five years with full knowledge of the owner, without asking or receiving permission to do so and without objection being made by anyone.’ ” (Gion-Dietz, supra, 2 Cal.3d 29, 43, 84 Cal.Rptr. 162, 171, 465 P.2d 50, 59.)

Answers and cross-complaints were filed by the Berks and other defendants. In their amended answers, the Berks asserted a number of affirmative defenses, including the defenses of estoppel and laches. In their cross-complaints against plaintiffs, the Berks sought declaratory relief that no public easement existed and also sought money damages on various theories, including slander of title, inverse condemnation and unjust enrichment.1

The actions were consolidated for trial. After trial by the court, judgments were rendered in favor of the plaintiffs against the defendants on the complaints and in favor of plaintiffs as cross-defendants on the cross-complaints of the Berks.

Appeals were taken by all defendants. The court has dismissed the Halperin appeal because Halperin did not pursue it. Except for the appeal of the Berks, the court has also dismissed the appeals of the other defendants at the latters' request. Defendant Oscar Berk died while the appeals have been pending, and defendant Shirley Berk is now the appellant on her own behalf and as executrix of the estate of her husband, Oscar Berk.


The Preliminary Issue of Whether the Berks' Appeals Should Be Dismissed as Moot

A preliminary issue raised by the County of Los Angeles in its opening brief is whether or not the appeals of the Berks should be dismissed as moot. The County has also filed a formal motion to dismiss their appeals, accompanied by the affidavit of a deputy county counsel. The County asserts that, after the trial court's judgment, the Berks defaulted on their obligations with respect to the property in dispute, and United California Bank and Fidelity Federal Savings and Loan Association, holders of security interests in the property, foreclosed and eliminated the fee interest of the Berks. These parties then sold the fee interest in the property to the County of Los Angeles. The amounts paid by the County of Los Angeles to United California Bank and Fidelity Federal Savings were undisclosed. At oral argument we were told that the secured parties received 50 percent of the amounts owed on the property from the County of Los Angeles, in return for conveyance of the fee.

The County advances the contention that, since Shirley Berk no longer has any interest in the property, she had no substantial interest to be adjudicated here. As a consequence, the Berks' appeals should be dismissed.

A review of the trial court's judgments requires exploration not only of the imposition of a public easement on the subject property but of the denial of the defendant Berks' claims for equitable relief set forth in their cross-complaints. In Klopping v. City of Whittier (1972) 8 Cal.3d 39, 58, 104 Cal.Rptr. 1, 16, 500 P.2d 1345, 1360, the court observed, with respect to a plaintiff therein whose land had been taken by foreclosure after suit had been filed, that “(c)ertainly this fortuity (foreclosure) does not preclude (plaintiff) from recovering for any damages caused by the city . . . .” Similarly in the case before us, defendant Berk is not precluded from seeking monetary redress for the loss of the subject property. We therefore decline to dismiss her appeals.


The Procedural and Factual Background

The property in dispute consists of slightly less than two acres of vacant shoreline land situated in the cities of Redondo Beach and Torrance. Parcels 1-B, 8 and 9 are in Redondo while parcel T is in Torrance; all are contiguous and there are no visible artificial boundaries between them. Included are sandy beach areas, some steep slopes and considerable acreage on a bluff overlooking the Pacific Ocean. The beach portion does not extend to the mean high tide line, but is surrounded by publicly owned beach, some of which lies between the property in question and the ocean. From the bluff the view both to the north and south is unique in the words of a witness, “breathtaking.” Suffice it to say that, by 1970, the property was immensely valuable.

In the 1920's, the property (including an additional parcel, S, located seaward of parcel T) was acquired by the Huntington Redondo Company, the developer of a neighboring residential area, the Hollywood Riviera tract. A private beach club was constructed on parcels T, 8 and 9 in 1928, and was used by the owners of Hollywood Riviera tract homes. After the depression years, a successor of Huntington Redondo distributed shares of ownership to the property among the homeowners in the Hollywood Riviera tract. In 1947, these owners sold parcel 1-B, located in Redondo Beach, to the County of Los Angeles. In 1958, the club house burned to the ground; the only evidence of the structure remaining consisted of steps from the bluff to the beach below.

In 1963, parcels T, S, 8 and 9 were sold to a real estate developer, Keillor. It was Keillor's plan to construct a highrise condominium on the property. Pursuant to a business license obtained from the City of Torrance, Keillor placed a small real estate office on parcel T. The office was removed to a nearby location in 1965. Keillor engaged in a public promotional program to persuade local residents of the merits of his highrise project. He encountered strong and effective opposition from members of the Hollywood Riviera Homeowners' Association, a group of local citizens interested in preserving their residential area for low-density housing. Keillor sought a variance from the City of Torrance to permit the construction of his highrise, but, after a widely attended public meeting, the city council of that city denied his request in 1964.

Stymied in Torrance, Keillor then concentrated on development of parcels 8 and 9, located in Redondo. In 1965, he also negotiated an exchange of parcels with the County of Los Angeles. In return for parcel S, located in Torrance, Keillor received parcel 1-B in Redondo. This exchange had been approved by the Board of Supervisors of Los Angeles County after holding public hearings pursuant to Government Code section 25365.

Subsequent to the exchange, the County obtained from Keillor a right of entry over a portion of parcel 1-B so that the County could more easily replenish and maintain the surrounding beaches which it owned. During 1967 and 1968, Keillor permitted a private concern, Shellmaker's Inc., to store materials on parcel T in Torrance while performing a beach widening project seaward of the property pursuant to a contract with the County of Los Angeles and the United States Army Corps of Engineers.

Keillor, unable to arrange adequate financing for his development efforts, defaulted on a note payable to United California Bank; payment was secured by a deed of trust on the property. Keillor filed a bankruptcy petition in federal district court. The property was in receivership for approximately a year; then foreclosure was effected in November 1969, by another trust deed holder, Halperin.

Halperin, as the owner of the property, began negotiating for the sale of parcel T in Torrance to a group of developers (referred to herein as the Meister group). An escrow was opened and some preliminary planning and investigation was undertaken by the Meister group. On behalf of the Meister group, an architect, Cobb, engaged in discussions with officials of the Planning and Building Department of the City of Torrance. It became clear that there would be strong local opposition to any building plan on the property that would require a variance from the existing zoning and building restrictions. The Torrance City Council turned down the Meister group's request for a density variance in July 1970, and the escrow terminated.

In May or June 1970, defendant Oscar Berk, a businessman with many years of experience as a building contractor, was approached by a real estate agent concerning parcels 1-B, 8 and 9, located in Redondo Beach, and offered for sale by Halperin. Berk viewed the parcels in June 1970. He examined the County Tax Assessor's records, and visited the appropriate departments of the City of Redondo Beach to acquaint himself with the zoning and building requirements which he would have to meet in order to build on the Redondo property. Berk then became aware that the adjoining parcel, T, in Torrance, was also for sale; he knew that that property had been in escrow and conducted an investigation into the reasons the Meister group had been unable to proceed with their plans for the property. Berk learned of the strong influence exerted by the local homeowners; he discussed development problems with various planning and building officials of the City of Torrance. He was advised that the property was zoned R-3, and that development would only be possible if he could create a plan which would not require any variances. Perusal of the minutes of Torrance City Council meetings bore out Berk's impression that the Meister group had failed to pursue their project because of their need for an increased density variance. Berk concluded that he could build within the framework of the existing requirements without the need for special dispensation by the Torrance City Council. Berk then drew plans for an apartment complex utilizing both the Redondo and Torrance parcels.

Having assurance from the planning and building officials of the cities of Torrance and Redondo Beach that his building project would not require variances from the applicable zoning and building requirements, Berk offered to purchase the property from Halperin for $600,000. Halperin accepted this offer and a purchase and sale escrow was opened in July 1970. As the escrow progressed, Berk continued his discussions with city officials in both Redondo and Torrance; the emphasis was not upon whether he could build at all, but in what manner he would build. Sums were expended for plans and fees paid to the cities involved.

The escrow closed on September 28, 1970. Berk now the owner of the property continued to discuss his project with city officials of Torrance and Redondo Beach throughout the year 1970. By November 1970, Berk had obtained a building permit from Redondo Beach. In February 1971, construction began on the Redondo property and Berk made official application for a building permit from the City of Torrance. The governmental response was immediate. Both the City of Torrance and the County of Los Angeles filed suits to establish public easements on the property the City of Torrance with respect to parcel T and the County of Los Angeles with respect to the remainder. An injunction was obtained which prevented further construction of the Berk project until the issues had been resolved by litigation.


New Law Forged by the Gion-Dietz Decision

On February 19, 1970, the California Supreme Court rendered an important and far-reaching decision in the two cases previously referred to herein as Gion-Dietz. This decision encouraged the assertion of public recreational easements on shoreline property. The decision was the subject of considerable publicity and considerable comment (much of it adverse) in law journals. The Gion-Dietz decision became known to Torrance City Attorney Stanley E. Remelmeyer almost immediately after it appeared in the advance sheets. The impact of Gion-Dietz upon shoreline property in Torrance became the subject of discussion among members of the City Attorney's office. Remelmeyer testified at the trial that he was initially uncertain whether public easements could successfully be asserted on sandy beach areas only, or, could also be established with respect to the slopes and bluffs of beach property. He did not officially communicate his interest in pursuing this matter to members of the planning and building departments of the City of Torrance while the Meister group attempted to secure official approval of their development plans for parcel T.

Berk had not learned of Gion-Dietz nor its possible application to the property here involved, nor did any of the public officials of the cities of Torrance or Redondo with whom he dealt prior to his purchase of the property advise him of the decision or the rule of law announced therein or of any possible effects on the validity of the fee title interest in the property involved. Still, by the time of the close of the Halperin-Berk escrow, the City of Torrance had filed several Gion-Dietz -type actions against property on the city's shoreline, but did not take any action against the property in question here.


Sufficiency of the Evidence To Establish a Public Recreational Easement by Implied Dedication in the Property in Question Within the Meaning of Gion-DietzA. In General

At the trial herein, plaintiffs presented ample evidence of public use of the property in dispute from early in the century. Defendant Berk assails the quality of the evidence presented below on this issue, noting that much of the testimony emanated from members of the local homeowners' association which had opposed development of the site for many years. We note, however, the appropriate standard of appellate review: “In resolving the issue of the sufficiency of the evidence, we are bound by the established rules of appellate review that all factual matters will be viewed most favorably to the prevailing party (citations) and in support of the judgment (citation). All issues of credibility are likewise within the province of the trier of fact.” (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925, 101 Cal.Rptr. 568, 571, 496 P.2d 480, 483.) We also call attention to the fact that, while members of the homeowners' association testified concerning their Own use of the subject property on a daily basis, they Also testified to the continuous use of the property by members of the general public.

We need only briefly summarize the evidence on this point. That portion of the Berk property located on the sand was used by thousands of persons annually persons engaged in all of the recreational pursuits generally associated with the seashore. Access to the sand and surf was achieved not only from the surrounding public beaches but via the slope and the stairs which remained from the days of the private beach club. On the bluff, persons viewed the sunset, walked their dogs, camped, painted and photographed the view. The use was diverse; children played; teenagers reveled; older people tended to be spectators. Occasional ineffective efforts to curtail these encroachments were made by prior owners. Signs were torn down and chains were removed; no fencing was attempted after the club house fire. Keillor referred to the visitors in the sixties as the “multitudes.” While various interested persons debated the proper development of the property throughout the years, the public proceeded to use the property for recreational purposes. As a result, clearly defined paths were worn on the bluff and slope.

There was evidence that, for 25 years before 1970, the County of Los Angeles had been maintaining the sand, slope and bluff area of the property as if it were publicly owned; cleaning it regularly of the debris generated by the public use. Berk visited the property a number of times in the summer of 1970, and must have been cognizant of the public presence. But what was reasonably unknown to him was the effect the public presence would have on his private property interest.

In its findings of fact and conclusions of law, the trial court specifically declared that public use by diverse members of the public had been established; as to the Torrance property and parcels 8 and 9 in Redondo, the use had commenced in 1958, after the club house fire, and had continued in uninterrupted fashion until 1963, when Keillor acquired it. As to parcel 1-B, in Redondo, the public use had commenced in 1965, after the exchange with the County of Los Angeles, and had ripened into a public easement in 1970, shortly before the Halperin-Berk escrow had closed. The court concluded that there was “an implied dedication of property rights for beach and shoreline recreational uses” to the public, represented in the within actions by the governmental plaintiffs.

In arriving at judgment, the trial court expressed some dissatisfaction with the result it felt was compelled by the evidence and the applicable law. The Berks, the court concluded, had been caught by a change in the law which resulted in their ownership of prime beach property subject to a public easement destroying any possibility of private development or use. By the judgments, entered on February 26, 1973, the Berks retained the fee and the obligation to pay taxes on the property, but little else.

B. Is the Rule of Law Announced in Gion-Dietz Limited to the Factual Situations Presented There?

On this appeal, defendants argue that Gion-Dietz should be narrowly construed, and limited to factual situations similar to those involved in that decision.

In Gion, the property in dispute consisted of three parcels of shoreline property, including bluff land with a sharp drop to the sea. No permanent structures had ever been placed on the land. It had been used by the public for recreational purposes without any effective interference by its successive owners since 1900. In addition, there was evidence that the City of Santa Cruz had expended substantial sums for maintenance of the property for many years. Dietz involved a beach and an access road, used by the public for 100 years. In both cases, the California Supreme Court concluded that there had been an implied dedication for public recreational purposes. A fair reading of the decision, however, compels the conclusion that the principles of law discussed in that decision are of Broad, rather than narrow, application.

The Gion-Dietz decision was based upon “the strong policy expressed in the constitution and statutes of this state of encouraging public use of shoreline recreational areas.” (Gion-Dietz, supra, 2 Cal.3d 29, 42, 84 Cal.Rptr. 162, 170, 465 P.2d 50, 58.) The crucial factual determination to be made in such cases is “whether the public had used the land ‘for a period of more than five years with full knowledge of the owner, without asking or receiving permission to do so and without objection being made by any one.’ ” (id. at p. 38, 84 cal.rptr. at p. 168, 465 P.2d at p. 56.) it is not necessary to establish specific adverse intent to possess the land on the part of the public, nor is a separate finding of “adversity” required, if use without objection or interference is established. Evidence of maintenance of the property by a governmental entity is significant in showing public use; the use must be for recreational purposes, and by diverse members of the public.

To negate a finding of implied dedication by such use, the owner must present affirmative evidence showing that the use was pursuant to license, or that bona fide attempts were made to prevent public incursion. The quality of such attempts is a factual matter, but “(i)f the owner has not attempted to halt public use in any significant way, . . . it will be held as a matter of law that he intended to dedicate the property or an easement therein to the public, and evidence that the public used the property for the prescriptive period is sufficient to establish dedication.” (Gion-Dietz, supra, 2 Cal.3d 29, 41, 84 Cal.Rptr. 162, 170, 465 P.2d 50, 58.)

As to the problems which might arise as the result of changing ownership of the land in dispute, the court held that “(n)othing can be done by the present owners to take back that which was previously given away.” (Gion-Dietz, supra, 2 Cal.3d 29, 44, 84 Cal.Rptr. 162, 172, 465 P.2d 50, 60.)

Defendant points out that factual distinctions from Gion-Dietz may be found in the case at bench. Among them are the topography of the land, the existence of a permanent structure the club house for a long period of time, as well as assertedly slight evidence of maintenance by public agencies. In addition, defendant points out that, in Gion-Dietz, the owners had not only ignored their properties for long periods of time but conceded at trial that the public had made use of them; that such was not the case herein, as there were sporadic attempts to curtail the public use, and public controversy over the development of the property had raged for years in the local community. Upon analysis, however, these are distinctions without a difference. No suggestion appears in Gion-Dietz that would limit that ruling to property with similar topography or history to that involved in the 1970 decision. As we have concluded, there was substantial evidence of public use of all of the parcels involved here.

In two subsequent cases involving the Gion-Dietz rule of law, the Courts of Appeal did find Relevant factual distinctions and rejected its application. In County of Orange v. Chandler-Sherman Corp. (1976) 54 Cal.App.3d 561, 126 Cal.Rptr. 765, dedication was sought concerning an isolated beach near Laguna; the trial court's finding that the evidence did not establish use by sufficient members of the public was upheld on the ground that the public use envisioned by Gion-Dietz must be “substantial.” In Richmond Ramblers Motorcycle Club v. Western Title Guaranty Co. (1975) 47 Cal.App.3d 747, 121 Cal.Rptr. 308, the court declined to find public dedication of an area long used by members of a motorcycle club, as well as their families and friends, because their presence on the land was the result of a license conferred by the owner.

However, in City of Long Beach v. Daugherty (1977) 75 Cal.App.3d 972, 142 Cal.Rptr. 593, the plaintiff city successfully invoked Gion-Dietz to obtain public easements over beachfront property located in the city and long maintained by the city and subject to intense public use.

C. For Gion-Dietz to Apply, Must There Be Specific Proof that the Public Who Used Beach Property Believed that the Public Had a Right to Such Use ?

Defendants argue that the evidence adduced below in the case at bench was insufficient to show use by the public “believing the public had a right to such use.” This language was employed by the court in Gion-Dietz but was followed by an explanation that the existence of such belief is immaterial if the public use is established for the requisite period of time. (Daugherty, supra, 75 Cal.App.3d 972, 979, 142 Cal.Rptr. 593.) Accordingly, we reject this argument of defendant.

D. Other Contentions Raised by Defendant Regarding Insufficiency of the Evidence

Defendant questions whether a public easement may be established by use which involved the violation of various ordinances and penal statutes. Acquisition of title by adverse use, however, as it was recognized at common law, has always involved the violation of some law protecting ownership the prohibition against trespass, for example but that reality has not prevented an owner's acquiescence from creating title in another, whether he be a wrongdoer or not.

Defendant also makes certain technical arguments based upon traditional rules of real property, citing cases which have held, in the past, that adverse possession can create no prevailing rights against the holders of secured interests in property or such entities as receivers in bankruptcy, holding In custodia legis. Defendant points out that during the prescriptive periods identified by the trial judge in the case at bench, there were foreclosures of the property as well as a period when the property was subject to the jurisdiction of the federal bankruptcy court. Gion-Dietz, of course, did not discuss with any particularity the impact that breaks in the chain of title of the owners might have, except to state that, once the public easement had ripened, no subsequent owner could prevent assertion by the appropriate authorities. Resolution of this issue depends upon whether the correct emphasis is upon the owner's title or upon the conduct of the encroaching public; we think that Gion-Dietz makes it abundantly clear that public use may commence and run against successive owners of property, and that it is immaterial how those owners acquired the property.

There are those who consider the Gion-Dietz rule of law harsh and inequitable. But we cannot refuse to follow this rule of law because of various personal opinions as to its fairness or harshness in spite of official and nonofficial reactions to Gion-Dietz. We recognize that it was cogently stated in County of Orange v. Chandler-Sherman Corp., supra, 54 Cal.App.3d 561, 564, 126 Cal.Rptr. 765, 767: “Reaction to Gion-Dietz was prompt. In addition to soaring sales of chain link fences, as owners of shoreline property frantically attempted to bar the public from the use of their property, the case generated a spate of law review comment which was generally critical.” In addition, the California Legislature reacted promptly by amending Civil Code sections 8132 and 10093 to provide the means by which private owners could protect their property against implied dedication while allowing public use. Such protection may now be obtained by: (1) sign posting as provided in Civil Code section 1008; (2) public recordation as provided in Civil Code section 813; and (3) a written agreement with a public agency for the public use of such land. Such agreement may impose “reasonable restrictions on the time, place, and manner of such public use, and no use in violation of such restrictions shall be considered public use for purposes of a finding of implied dedication.” (Civ.Code, s 1009, subd. (g).)


Viability of the Defenses of Estoppel and Laches

The Berks' answer raised the equitable defenses of estoppel and laches.

California law has long recognized the viability of the defense of equitable estoppel. Evidence Code section 623, restating former Code of Civil Procedure section 1962, subdivision 3, provides that “(w)henever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.”

“The doctrine of equitable estoppel is founded on concepts of equity and fair dealing. It provides that a person may not deny the existence of a state of facts if he intentionally led another to believe a particular circumstance to be true and to rely upon such belief to his detriment. The elements of the doctrine are that (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel has a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.” (Strong v. County of Santa Cruz (1975) 15 Cal.3d 720, 725, 125 Cal.Rptr. 896, 898, 543 P.2d 264, 266.)

“It is settled that ‘(t)he doctrine of equitable estoppel may be applied against the government where justice and right require it. (Citations.)’ Correlative to this general rule, however, is the well-established proposition that an estoppel will not be applied against the government if to do so would effectively nullify ‘a strong rule of policy, adopted for the benefit of the public, . . .’ (Citation.) The tension between these twin principles makes up the doctrinal context in which concrete cases are decided.” (City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 493, 91 Cal.Rptr. 23, 45, 476 P.2d 423, 445.)

“The existence of an estoppel is generally a question of fact for the trial court whose determination is conclusive on appeal unless the opposite conclusion is the only one that can reasonably be drawn from the evidence. (Citation.) When the evidence is not in conflict and is susceptible of only one reasonable inference, the existence of an estoppel is a question of law.” (Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305, 61 Cal.Rptr. 661, 666, 431 P.2d 245, 250.)

The Berk defendants assert that the plaintiffs should be estopped from claiming the public recreational easement because the County assessed and taxed the property as if it were private and not subject to a public easement and the officials of the cities of Torrance and Redondo Beach applied their zoning and building ordinances to the property on the assumption that the property was private and not encumbered with any public easement. There appears to be no dispute that such taxation and application of ordinances did occur, and that the governmental activity in this context did influence Oscar Berk's belief that the property was private property free of any claim that would encumber the fee interest.

The trial court rejected the defenses of estoppel and laches, making a specific finding that none of the governmental officials who dealt with the property had knowledge concerning its status. The evidence supports this finding. In the case at bench, there was no evidence that either County, or Torrance or Redondo Beach officials intentionally misled Oscar Berk concerning the status of the property, but misrepresentation of known facts need not be the product of fraudulent conduct in order to invoke estoppel. (Mansell, supra.) All of the officials did act upon the assumption that the property was free of public claim. There is no doubt if any of them had informed Berk of the possible consequences of Gion-Dietz, he would not have purchased the property from Halperin.

The evidence also supports the trial court's finding against the defense of laches. Laches refers to prejudicial delay, and must be considered in the context of reasonableness. The County and the City of Torrance acted to assert their claims to a public easement some 13 months after Gion-Dietz had been decided. We cannot conclude that, as a matter of law, this lapse of time constitutes laches.


Miscellaneous Contentions of the Berk DefendantsA. The Retroactive Application of Gion-Dietz

The Gion-Dietz court established a principle creating public recreational easements in shoreline property and applied it retroactively in the two cases it considered. Defendant argues that such application is lacking in fundamental fairness. As an intermediate appellate court, it is not within our jurisdiction to overrule a decision of the state's highest court. (See Daugherty, supra, 75 Cal.App.3d 972, 980, 142 Cal.Rptr. 593, rejecting a similar argument.)

B. Does the Gion-Dietz Rule of Law Constitute a Taking of Private Property Without Compensation in Violation of Constitutional Principles ?

The Berk defendants attack the Gion-Dietz rule of law on the ground that it permits the taking of private property in violation of constitutional guarantees. The argument must be rejected for the same reason that we reject the argument as to the fairness of retroactive application of Gion-Dietz. We should not be required to continue stating the well-settled and well-known principle that the decisions of the California Supreme Court are binding on all other California courts. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.)


The Berks' Cross-Complaint for Damages Against Plaintiff Governmental Agencies

By cross-complaints the Berk defendants sought, as one item of relief, damages in the event that the court upheld the plaintiffs' claims for public recreational easements. The claim for damages was posited on legal theories of unjust enrichment and inverse condemnation. We hold that the trial court erred in giving judgments against the Berks on their cross-complaints.

Although the evidence in the cases at bench was sufficient to establish public recreational easements pursuant to the rule of law set forth in Gion-Dietz, this rule of law is not to be interpreted to preclude liability of the plaintiffs the governmental agencies for loss caused to the defendants the Berks, under the circumstances presented in the cases at bench. The findings by the trial court that the doctrines of estoppel and laches were not present to prevent the establishment of public easements by implied dedication do not preclude the right of the Berks to establish a cause of action for damages for losses occurring as the result of actions by the governmental agency plaintiffs.

We start with the principle that Gion-Dietz recognized a strong public policy favoring public use and public ownership of California's shoreline beach areas. “Even if we were reluctant to apply the rules of common-law dedication to open recreational areas, we must observe the strong policy expressed in the constitution and statutes of this state of encouraging public use of shoreline recreational areas.” (Gion-Dietz, supra, 2 Cal.3d 29, 42, 84 Cal.Rptr. 162, 170, 465 P.2d 50, 58.) Although “(t)his court has in the past been less receptive to arguments of implied dedication when open beach lands were involved than it has when well-defined roadways are at issue,” (Id. at p. 43, 84 Cal.Rptr. at p. 171, 465 P.2d at p. 59), nevertheless, “(w)ith the increased urbanization of this state, however, beach areas are now as well-defined as roadways. This intensification of land use combined with the clear public policy in favor of encouraging and expanding public access to and use of shoreline areas leads us to the conclusion that the courts of this state must be as receptive to a finding of implied dedication of shoreline areas as they are to a finding of implied dedication of roadways.” (Id. at p. 43, 84 Cal.Rptr. at p. 171, 465 P.2d at p. 59.)

It was only two years after Gion-Dietz that the California Supreme Court in Klopping v. City of Whittier (1972) 8 Cal.3d 39, 104 Cal.Rptr. 1, 500 P.2d 1345, expressed an equally strong recognition of the court's “constitutional concern over property rights requires that the owner be compensated” (Klopping, supra, 8 Cal.3d 39, 52, 104 Cal.Rptr. 1, 11, 500 P.2d 1345, 1355) for damages caused by “unreasonable conduct” on the part of governmental agencies in the eminent domain arena. “(W)hen the condemner acts unreasonably in issuing precondemnation statements, either by excessively delaying eminent domain action or by other oppressive conduct, Our constitutional concern over property rights requires that the owner be compensated” (Klopping, supra, 8 Cal.3d 39, 51-52, 104 Cal.Rptr. 1, 11, 500 P.2d 1345, 1355; emphasis added) when “as a result of such action the property in question suffered a diminution in market value.” (Id. at p. 52, 104 Cal.Rptr. at p. 11, 500 P.2d at p. 1355; fn. omitted.)

This same “constitutional concern over property rights” that necessitated “that the owner be compensated” in Klopping requires that the Berks, the owners before us, be compensated for the losses suffered by them as a result of “unreasonable conduct prior to” (Klopping, supra, 8 Cal.3d 39, 52, 104 Cal.Rptr. 1, 500 P.2d 1345) filing their actions against the property owners the Berks to assert public recreational easements against the Berks' property. For all intents and purposes, the recognition of a public easement against the Berks' beach property leaves the underlying fee interest Valueless. There is no ability of the fee owner to make any economically valuable use of the property.

Although the Berks as fee owners are not entitled to compensation for the loss of a less-then-a-fee interest in their beach property because of the doctrine of an implied dedication of their property to the public for recreational use, they are not foreclosed from obtaining damages for losses sustained as a result of “unreasonable conduct” by the governmental agencies prior to the institution of their actions to assert public-use easements.

The law cannot be sterile in the face of injustice. For the 13-month period from the date of Gion-Dietz to the filing of the instant actions, the officials of the cities of Torrance and Redondo Beach treated the property involved as the private property of the owners and dealt with the owners on a basis of the owner's right to develop the property within the framework of the applicable zoning and building ordinances of the respective cities. Had any of the city officials notified defendant Oscar Berk of the possibility that the Gion-Dietz rule of law might lead to the assertion of a public easement for recreational purposes, he would not have purchased the property from Halperin and sustained losses such as the down payment on the property, the expenses of escrow, the payment to the County of Los Angeles of taxes on the property and the expense of preliminary development of the project after obtaining a building permit.

The loss suffered by the Berks in the purchase of the property could have been averted also by prompt action after February 1970 the date of the Gion-Dietz decision on the part of the City of Torrance, the City of Redondo Beach or the County of Los Angeles, in filing actions against the then owners to establish the public recreational easements prior to the Berks' purchase in July 1970.

Under the circumstances presented here, the failure of the governmental agencies to act promptly after the Gion-Dietz decision constitutes “unreasonable conduct” sufficient to trigger a Klopping -type cause of action in the Berks to recover against plaintiffs City of Torrance and the County of Los Angeles damages for the losses sustained as a result of such “unreasonable conduct” by plaintiffs. The County of Los Angeles can claim no immunity on the theory that it was not dealing with the property owners after the Gion-Dietz decision. The County assessed and collected taxes from the owners on the basis that the owners had an unencumbered fee title to the property. In addition, the cities of Torrance and Redondo Beach must be considered as Subtrustees of the County of Los Angeles in terms of representing the public's interest in the property in question. (See City of Long Beach v. Mansell, supra, 3 Cal.3d 462, 493, 91 Cal.Rptr. 23, 476 P.2d 423.)

It bears repeating that the City of Torrance filed its action against the Berks on March 12, 1971, and that the County of Los Angeles followed with its action on March 23, 1971. The County's lawsuit which related to the portion of the property situated in the City of Redondo Beach came after the City of Redondo Beach had given the Berks a permit to develop the property with residential units a recognition by Redondo Beach that there were no impediments to an unencumbered fee title interest in the Berks. It appears, therefore, that the City of Redondo Beach was in no mood to assert against the Berks an easement in favor of the public for recreational purposes on beach frontage property.

We fully recognize however, that Gion-Dietz indicates that any person, private or governmental, may file an action as trustee for the public to establish a recreational easement created by implied dedication. But the County of Los Angeles in the cases at bench cannot be allowed to assert the public easement to the detriment of the Berks who dealt in good faith with the City of Redondo Beach which had the control over the development of property located within its boundaries. The County, representing the taxpayers, must be held to the principle that if it seeks the benefit of the Gion-Dietz rule of law, it must be responsible for the burden of doing equity to the Berks as property owners even though the acts of officials of Redondo Beach were responsible in part for the loss suffered by the Berks. But the County cannot be allowed to escape its share of the blame since it collected taxes on the Berks' property after Gion-Dietz and, also, through its tax assessor, assessed the market value of the property at $609,000, which was a substantial factor in causing the Berks to purchase the property and agree to pay the price necessary to make the purchase from Halperin, the then owner.

The minority opinion suggests that we have ignored the trial court's findings to the effect that the defenses of estoppel and laches were not established. We recognize the existence and validity of these findings but hold that their relevancy and applicability relate Only to the issue of whether defendants have a defense against the plaintiffs' assertion of the public recreational easement interest in defendants' real property.

In the cases at bench, contrary to the view of the minority opinion, we consider it of no consequence that the conduct of public officials of Torrance, Redondo Beach and the County of Los Angeles was not such as to come within the legal principles of an estoppel or laches since the Klopping cause of action is not predicated on the doctrines of estoppel or laches but on the fact that unreasonable delay or other oppressive or unreasonable conduct after pre-condemnation announcements has resulted in loss to the affected property owner. The same conduct of public officials which is insufficient to constitute the equitable defenses of estoppel or laches to preclude the assertion of a public recreational easement under Gion-Dietz, can amount to “unreasonable delay” or “unreasonable conduct” to provide the affected property owner with a cause of action for damages under the doctrine of Klopping.

Nor do we deem it material that the unreasonable conduct of the plaintiffs occurred before the Berk defendants had become owners of the property. We hold that plaintiffs had a duty to the Berks as prospective property owners not to engage in unreasonable conduct which would cause loss to them in the purchase of the beach property that was subject to a public recreational easement under the principles established by Gion-Dietz.

Under the special circumstances presented in the cases before us, we have no hesitancy in fashioning a remedy to preclude an injustice in the same way that the Klopping court fashioned a remedy for unreasonable conduct on the part of a governmental entity in the eminent domain area of the law. We cannot assume that the maxims of jurisprudence (Civ.Code, ss 3509-3548) were enacted by the Legislature in 1872 as idle acts, intended to have no legal significance.

Two “maxims of jurisprudence” have especial significance for the problem presented by the instant cases. Civil Code section 3521 provides: “He who takes the benefit must bear the burden.” Civil Code section 3543 provides: “Where one of two innocent persons must suffer by the act of a third, he, by whose negligence it happened, must be the sufferer.”

Since plaintiffs' legal actions against the Berks were instituted to take advantage of the benefits bestowed on the public by virtue of Gion-Dietz, should not the concept of “bearing the burden” embodied in Civil Code section 3521 have required prompt action to prevent a needless loss to an innocent purchaser of beach property which, prior to the purchase, had become subject to the easement in favor of the public? Also, even assuming that the plaintiffs and the Berks were equally blameless in not being aware of Gion-Dietz and its potential effects an assumption we do not make it follows that Civil Code section 3543 comes into play to require the governmental agency plaintiffs to bear the loss caused by the act of Halperin in selling the property to the Berk defendants since the negligence of plaintiffs permitted the sale to happen to the detriment of the Berks.

We conclude that, on the cross-complaints of the Berks against the plaintiffs, City of Torrance and the County of Los Angeles, the Berks are entitled to recover as damages not for any diminution in the value of the property or loss of profits but the sums they expended on the purchase price of the parcels involved, including items such as escrow expenses, taxes paid on the property and amounts expended on the start of the residential development before it was stopped through the issuance of a preliminary injunction in these actions.

The total loss to the Berks must be shared one-half by the City of Torrance and one-half by the County of Los Angeles as the several parcels of property were adjoining and all governmental agencies connected with the parcels were aware that the parcels had their greatest potential for development as a single piece of property.

The motion made by plaintiff County of Los Angeles to dismiss the appeals of the Berk defendants is denied.

That portion of each judgment that orders that cross-complainants Oscar Berk and Shirley Berk take nothing by their cross-complaint is reversed with directions that the trial court shall award a judgment for damages in favor of said cross-complainants after a hearing and determination of the amount of damages in accordance with the views expressed in this opinion. Otherwise the judgments are affirmed.

Each party is to bear its own costs on appeal.

I concur in the judgment insofar as it affirms the judgment of the court below establishing public recreation easements on the property in dispute. I dissent from that portion of the opinion which holds that Shirley Berk, individually and as executrix of the estate of Oscar Berk, is entitled to recover damages on the cross-complaint.

The majority relies on Klopping v. City of Whittier (1972) 8 Cal.3d 39, 104 Cal.Rptr. 1, 500 P.2d 1345, to tailor a remedy that suits their concern over the harsh result which must flow from an application of the Gion-Dietz concept to these facts. In Klopping the court stated that an owner of property must be compensated “ .. . when the condemner acts unreasonably in issuing precondemnation statements, either by Excessively delaying eminent domain action or by other Oppressive conduct . . . the property in question suffered a diminution in market value.” (Emphasis added.) (Pp. 51-52, 104 Cal.Rptr. p. 11, 500 P.2d p. 1355.)

The majority has apparently concluded that the failure of the “city officials” to notify Oscar Berk of “the possibility that the Gion-Dietz rule of law might lead to the assertion of a public easement for recreational purposes” (op. at p. 891) and the filing of the action to establish the public recreational easements 13 months after the Gion-Dietz decision was “unreasonable conduct” under Klopping as a Matter of law.

The majority has not referred us to any case or statute which holds that any city official has a duty to furnish a legal opinion as to the possible consequences of a decision of an appellate court on title to real property. Here, the only “city officials” Mr. Berk spoke to were planning and building officials of the cities of Torrance and Redondo Beach. Assuming that these individuals were not members of the bar, any legal advice furnished by them to Mr. Berk would not only have been unsolicited and of dubious value but also would constitute unethical and unauthorized practice of the law. The only official lawfully in a position to give an opinion as to the applicability of Gion-Dietz to the property in dispute was the City Attorney of Torrance who testified he was initially uncertain as to whether public easements could be asserted with respect to slopes and bluffs adjacent to sandy beach areas. The city attorney not only did not have a duty to communicate his uncertainty as to the requirements of the law to Mr. Berk (even had his views been solicited), he had no legal responsibility to communicate his doubts to members of the planning and building departments of the City of Torrance. To require a city attorney to tell responsible governmental officials he is unsure of the application of law would only serve to throw them into confusion and create paralyzing doubts as to their duties.

The trial court made express findings concerning the facts relating to the cross-complaint. The majority has failed to discuss findings or to point out why we are not bound by them.

The court found as follows:


“That plaintiff had no actual knowledge of the state or condition of its title to an easement for itself and on behalf of the public and for the People of the State of California, in, on, over and across the real property described in Finding of Fact III and V for public recreational purposes at any time when any defendant acted to acquire any interest in any parcel of real property that is the subject of this action.


“That there was no representation, misrepresentation, conduct or act of the plaintiff or of any officer, employee or agent of the plaintiff, to or toward any defendant or defendant's predecessor in interest upon which any defendant could rely to his or its detriment and that there was no reliance by any defendant on any representation, act or conduct of plaintiff or any officer, agent of employee thereof, nor was there any statement by, act or conduct of plaintiff, or officer or employee thereof with the intent to deceive any defendant or defendant's predecessor in interest nor was there culpable negligence on the part of plaintiff or any officer, agent or employee thereof to constitute fraud toward any defendant or defendant's predecessor in interest.


“That this action was commenced by plaintiff in a timely fashion and without discrimination to any person or party.”

It is bewildering that in the face of these findings the majority has not only concluded that it was unreasonable conduct for the plaintiffs and cross-defendants to fail to give unsolicited and unformulated legal advice, but also that 13 months constitutes an excessive delay in bringing an action to seek a court determination of questions of law which have remained unresolved until the filing of the opinion of this court. Under the circumstances presented here I am unable to conclude as a matter of law that the evidence presented at trial shows unreasonable conduct, negligence, or excessive delay on the part of plaintiffs or cross-defendants. I would commend not condemn the exercise of care and deliberate speed in the filing of an action to impose a public easement on private property. The majority point out that defendants would not have purchased the subject property had they been first advised of the existence and possible impact of the Gion-Dietz decision. The conclusion, therefore, that the plaintiffs engaged in excessive delay in bringing their action, indicates that had the action been filed one day after the purchase of the property by defendants (only six months after the rendition of the Gion-Dietz decision), it would have been filed too late for plaintiffs to avoid liability under the novel remedy created by the majority in this matter.

Finally, it should be noted that in Klopping the Supreme Court required compensation when “as a result of such action the property in question suffered a diminution in market value.” (Id. at 52, 104 Cal.Rptr. at 11, 500 P.2d at 1355.) The action referred to by the court consisted of precondemnation publicity followed by excessive delay in filing condemnation proceedings. It was the contention of the landowner in Klopping that the action of the government in announcing its intentions to condemn his property Prior to the condemnation proceedings lowered his property value. In the instant matter the gist of the cross-complaint is the reverse of the Klopping facts. Here, the cross-complainants contend that the failure of the plaintiffs and cross-defendants to reach a decision concerning the property in dispute and to publicize that intention Failed to diminish the value of the property prior to the purchase by the Berks.

The majority, in seeking to right what they characterize as an injustice, have turned the Klopping decision inside out and have found unreasonable conduct in the action of a thoughtful lawyer who was initially uncertain as to the scope of Gion-Dietz and failed to publicize his uncertainty. In my view, the city attorney acted responsibly and reasonably. It is not his conduct which has diminished the value of the property in question. It is the proper application of Gion-Dietz to these facts which makes the property virtually valueless. The determination which makes the property of little value is the result of the action of this court not the plaintiffs or cross-defendants.

I would affirm the entire judgment.


1.  The Berks also sought relief against other cross-defendants not parties in the actions brought by the City of Torrance and the County of Los Angeles; these claims were severed from the main action to be tried separately, and do not concern us here.

2.  Amended by Stats.1971, ch. 941, s 1, p. 1845.

3.  Added by Stats.1971, ch. 941, s 2, p. 1846.

JEFFERSON, Associate Justice.

KINGSLEY, Acting P. J., concurs.