*1 Filed 1/15/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
STEVEN DECEA, as Trustee, 2d Civ. No. B302086 etc., (Super. Ct. No. 56-2018-
00519378-CU-PT-VTA) Appellant, (Ventura County) v.
COUNTY OF VENTURA,
Respondent.
Appellant bought a house in the Lake Sherwood community of Ventura County in 2007. The house sits within “Parcel A” on a map recorded by a former owner in 1974. The 1974 map also includes historical lot lines from a subdivision map recorded by the original developers in 1923. Parcel A overlays three of these historical lots and parts of two others. They total 1.04 acres.
In 2017, appellant sought to reconfigure Parcel A into two half-acre lots. The plan stalled when the County Surveyor (the “County”) told him Parcel A consisted of one legal lot, not five. *2 This meant appellant could not subdivide the property without falling below the area’s one -acre minimum lot size. Appellant disputed the validity of the 1974 parcel map and whether the former owner legally merged the five original lots into one. The County did not change its position.
Appellant sought relief by petitioning for “ exclusion ” under the Subdivi siоn Map Act (“The Act” ; Gov. Code, § 66410 et seq.). [2] He sought orders declaring the 1974 parcel map void and restoration of the historical lot lines. The trial court dismissed the petition based on the doctrine of laches and entered judgment without reaching Decea’s legal arguments. We affirm.
FACTUAL BACKGROUND
Lake Sherwood is an unincоrporated community in Ventura County surrounding a man-made eponymous reservoir. [3] A 1923 tract map ( “1923 map”) subdivided the area along Lake Sherwood ’s south shore into quarter-acre residential lots. Much of the surrounding land remained part of a large ranch property that passed through a succession of оwners, including William Randolph Hearst, until the Murdock Development Company (“MDC”) acquired it in the mid-1980s.
The late Jack Speirs bought one of the quarter-acre south shore lots in 1950. He expanded his property’s footprint over the next two decades by acquiring adjacent properties as they came to markеt. This included lot numbers 62, 65, 66, 67, and part of *3 68. Longtime neighbor William Dickerson bought lot 64 about the same time Speirs moved to the area. Together they purchased lot 63 to ensure it remained undeveloped, with each taking an undivided 50 percent interest.
Speirs hired Dennis Landberg to survey the properties he and Dickerson owned. Landberg submitted parcel map 17PM72 to the Ventura County Recorder in 1974 ( “1974 map” ). [4] The 1974 map included the 1923 map’s original lot lines but made two significant changes. First, it added a bold border around the outer boundaries of lots 65, 66, 67 and 68 and labeled them collectively as “Parcel A.” Second, it split lot 63 into two piecеs, with one piece going into Parcel A and the other grouped with Dickerson’s lot 64 to form “Parcel B.” Speirs’ s lot 62 remained separate from both Parcel A and B. The reasons Speirs prepared and recorded the 1974 map are unclear, though the record suggests he and Dickerson used the parcel map process to legally divide lot 63 without violating minimum lot size requirements.
The Legislature amended The Act several times over the next decade. Among these amendments were statutes permitting local agencies [5] to reduce housing density by merging lots *4 considered too small for a neighborhood or zone. (§ 66451.10 et seq.) They could do so only after holding hearings at which affected owners could present evidence opposing merger. (§§ 66451.13, 66451.14, 66451.15.) Agencies could make a merger determination without hearing if the affected owners did not request one within 30 days of receiving notice. (§ 66451.17.)
These new merger laws were implicated when, in 1984, MDC informed the County of its plans to acquire and develop properties around Lake Sherwood. MDC and the County’s Planning Division began preparing an area plan providing for high-end residences, a country club, a Jack Nicklaus-designed golf course, and substantial open space dedications. [6] The County sent merger notices to those who owned undeveloped lots falling below the one-acre minimum lot size. [7] Speirs learned the County planned to merge lot 62 into Dickerson’s Parcel B.
Speirs appeared before County officials on June 26, 1985 and July 10, 1985 to discuss the proposed merger. He did not directly address whether the 1974 map effectuated a merger of lots 63, 65, 66, 67, and 68 into Parcel A. Rather, his discussion with officials focused on a lot line error he identified on the 1974 map near Parcel B. [8] He confirmed hiring Landberg to survey his *5 property and Dickerson’s but denied knowing about the error until he saw the map at the hearing. Speirs urged the County not to “kick [him] in the teeth” by using the incorrect lоt line when they had discretion to fix the problem. A hearing official responded the County’s “hands [were] tied” because the 1974 map was the official public record but encouraged him to contact Landberg about submitting a corrected map. Speirs took no further action.
Speirs passed away in 2002. His heirs sold Parcel A to John and Annette Matrisciano, who sold it to appellant Steven Decea (“Decea”) in 2007 . Ten years later, Decea decided to subdivide Parcel A into two “buildable” half -acre lots. He began the process by requesting certificates of compliance for lots 63, 65, 66, 67, and 68 from the Cоunty in January of 2017. The County declined informing Decea that Parcel A was “a single discrete parcel” created by Speirs’ s 1974 map, not five as represented by Decea. This meant Decea could not subdivide the 1.04 acre property without running afoul of Lake Sherwood’s one - acre lot size minimum.
PROCEDURAL HISTORY
Decеa petitioned to exclude his property from the 1974 map
in October of 2018. (§ 66499.21 et seq.) He sought an order
voiding the map because Speirs and Dickerson did not consent to
Dennis Landberg recording it in 1974. Decea claimed that even if
the map were properly recorded, it would not erase the 1923 lots
and merge them into Parcel A. His evidence included excerpts of
*6
audio recordings of John Speirs and County officials discussing
the parcel map at two administrative hearings in 1985. Decea’s
petition cited frequently to the Sixth District’s
van’t Rood v.
County of Santa Clara
(2003)
The County rеsponded by objecting to the petition and asserting the 1974 map’s validity. It pointed to parts of the hearing transcripts indicating Speirs knew officials considered Parcel A one legal lot yet failed to contest the interpretation. The County requested the court dismiss the petition under the doctrine of laches.
The trial court issued a statement of decision dismissing the petition on the ground of laches. It did not address the substance of Decea’s merger arguments under van’t Rood . Decea appealed.
DISCUSSION
The Doctrine of Laches Applies to Petitions for Exclusion
Exclusion is a procedure used to compel local authorities to redraw or discard a recorded subdivision map. (§ 66499.21 et seq.) A property owner initiates the procedure by filing a petition for exclusion with the local county surveyor and clerk of the board of supervisors. (§ 66499.22.) The petition must describe the property to be excluded and the reasons for requesting the remedy. ( Ibid .) It must include a new map showing how the subdivision’s boundary lines will change if the court grants the relief requested. (§ 66499.23.) The clerk then publishes a notice stating the nature of the petition and the deadline for filing objections. (§ 66499.24.) If the court receives objections it deems “material,” it hea rs them first. (§ 66499.26.) If the court does not receive objections, it may proceed to hear the petition without further notiсe. (§ 66499.25.) A court presented with “satisfactory evidence of the necessity of the exclusion” may “order the alteration or vacation of the recorded map” and “enter its decree accordingly.” ( Ibid .)
Raising issues not argued below, Decea contends the
equitable doctrine of laches cаnnot apply to his petition because
the remedy of exclusion is statutory. Ordinarily, we decline to
decide issues not raised below, but will do so where, as here, the
issues are limited to questions of law. (
Xiloj-Itzep v. City of
Agoura Hills
(1994)
Exclusion is a codified creature of equity resembling a
mandatory injunction. (Civ. Code, § 3367, subd. (2) [“Specific
relief is given: . . . [b]y compelling a party himself to do that
which ought to be done”];
Murphy v. Hopcroft
, (1904)
Decea argues alternatively that even if laches were
implicated, the “ public policy exceptio n” should prevent it from
applying here. We disagree. This exception arises from a line of
cases in which private litigants invoke the doctrine while
defending government enforcement actions. (See, e.g.,
Golden
Gate Water Ski Club v. County of Contra Costa
(2008) 165
Cal.App.4th 249, 259, quoting
City of Long Beach v. Mansell
(1970)
Substantial Evidence Supports the Trial Court’s Laches Ruling
Laches is an equitable defensе available when a party
unreasonably delays enforcing a right, and when granting the
relief sought would prejudice the adverse party. (
In re Marriage
of Fogarty & Rasbeary
(2000)
The parties presented opposing arguments relying upon same evidence. Decea used the 1985 hearing transcripts as proof that Speirs doubted the map’s validity. The County used them to show Speirs missed an opportunity to correct the map’s flaws. The trial court considered the County ’s position more persuasive, finding a “reasonable person in the position of Mr. Speirs would have taken action if he or she wished to have the original lot lines restored.” It nоted it would be “patently unfair to rely upon indirect evidence that is subject to conflicting reasonable interpretations when direct evidence was once available and could have been provided in the absence of needless delay.” W e *10 agree with this assessment. The transcripts show Speirs struggling to recall events only 11 years earlier. Reconstructing the same events 44 years later without the live testimony of the original players would be all but impossible.
Substantial evidence supports the finding that Speirs knew the 1974 map contained at least one error he could fix by submitting a corrected parcеl map. He did not. Admittedly, the error Speirs identified in 1985 was a single misplaced lot line. The hearings did not dire ctly address the core issue of Decea’s petition, i.e., whether the historical lots within Parcel A’s boundaries legally merged into one under T he Act. Speirs’ s dialogue with the County, though, shows he acknowledged the 1974 maр’s validity and knew what h e had to do to correct any errors. The County heard no further from Speirs or his successors until Decea requested certificates of compliance in 2017.
As the trial court observed, the testimony of Speirs and his
contemporaries “would have been highly probative” to the issues
raisеd the petition. The loss of this testimony thus constituted
substantial evidence of prejudice. (
Gerhard v. Stephens
(1968) 68
Cal.2d 864, 904, fn. 44 [“T he loss of witnesses is a factor
demonstrating prejudice [citations], and the cases do not require
that defendant must demonstrate that their testimony would
have been favorable to him”];
Zakaessian v. Zakaessian
(1945) 70
Cal.App.2d 721, 727, citing
Austin v. Hallmark Oil Co.
(1943) 21
Cal.2d 718, 735 [“The death of a material witnеss is one factor in
determining whether laches is present”].) We will not second
guess the trier of fact where, as here, the evidence was
susceptible to more than one reasonable factual conclusion. (See
Crawford v. Southern Pacific Co.
(1935)
CONCLUSION
We do not reach the issue of merger or the 1974 map’s validity. The time to address the mаp’s purported errors passed 35 years ago. It would be inequitable to awaken the issues now.
Judgment is affirmed. Respondent shall recover its costs on appeal.
CERTIFIED FOR PUBLICATION.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
Mark S. Borrell, Judge Superior Court County of Ventura ______________________________ Ferguson Case Orr Paterson, Wendy C. Lascher; Joshua M. Best, for Appellant.
Leroy Smith, County Counsel, and Eriс Walts, Assistant County Counsel, for Respondent.
APPENDIX 1
Parcel Map recorded December 13, 1974
Notes
[1] A copy of the 1974 map is included here as Appendix 1.
[2] Unlabeled statutory references in this opinion are to the Government Code.
[3] The reservoir and surrounding woods were the location for the 1922 film, Robin Hood , as well as the more famous 1938 “Golden Age” iteration, The Adventures of Robin Hood ; hence “Lake Sherwood.”
[4] An owner must record an approved parcel map to divide property and sell, lease, or finance the divided рarcels. (See 7 Miller & Starr, Cal. Real Estate (4th ed. 2020) § 20:10, pp. 42-43.) The Act currently limits the use of parcel maps to those subdivisions creating four or fewer lots. (§§ 66426, 66428, subd. (a).) Those creating five or more lots must proceed by tentative and final map. (§ 66426.)
[5] “Local agency” is defined as “ a city, county or city and county. ” (§ 66420.)
[6] The Boаrd of Supervisors ultimately approved the Lake Sherwood/Hidden Valley Area Plan in 1987.
[7] An acre equals 43,560 square feet.
[8] Locating the errant lot line is difficult because we cannot see what Speirs pointed out on the 1974 map since only the audio recordings remain. The location of the error, however, neither informs nor affects this аppeal.
[9] Decea purchased the property, and later brought this action, in his capacity as Trustee of the Steven Decea 2005 Family Trust U.T.D. December 30, 2005.
[10] The court did not expressly rule on the County’s request to dismiss the petition as barred by Ventura County Ordinance Code s ection 66499.37’s 90 -day statute of limitations. This is of no consequence. The November 2, 2017 letter to Decea is not an “advisory agency” decision subject to this 90 -day period. The County Surveyor is only one of three members of the advisory agency for hearings related to certificates of compliance. (Ven. County Ordinance Code, § 8201-6.1(d).) The letter does not refer to the agency or its other members. W e granted the County’s unopposed request for judicial notice of these ordinances and others relating to certificates of compliance in our order dated August 7, 2020. The Ventura County Board of Supervisors renumbered and revised many of its subdivision ordinances while this appeal was pending; we use the former numbers. (See Ventura County Ord. No. 4566, effective July 16, 2020.)