Citations
- 205 Cal. App. 4th 999
Full opinion text
Opinion
KANE, J.
For over two decades, homeowners at Sumner Hill, an isolated subdivision on bluffs overlooking the San Joaquin River, experienced the privacy of living in a remote, rural location within the confines of a security gate. They also enjoyed unrestricted access to the San Joaquin River on a dirt road within the subdivision known as Killkelly Road. Because Killkelly Road was inside the gated residential area, river access by that route was available to Sumner Hill homeowners but not the general public. The homeowners believed these amenities—a private, gated community and unrestricted river access—were part of what they purchased when they bought their lots in the subdivision. Eventually, however, the trajectory of future development reached that area and the homeowners’ status quo was challenged. A developer, Rio Mesa Holdings, LLC, purchased the surrounding land and announced plans for a large-scale suburban development that would include public access to the San Joaquin River directly through the Sumner Hill subdivision using Killkelly Road. The same party also installed a gate restricting the homeowners’ access to Killkelly Road. These events precipitated the present litigation. A complaint was filed by several individual homeowners and the Sumner Hill Homeowners’ Association, Inc. (collectively plaintiffs), against Rio Mesa Holdings, LLC, and Tesoro Viejo, Inc. (collectively defendants). Plaintiffs sought a judicial determination of their alleged right to maintain Sumner Hill as a private, gated subdivision and to have unrestricted use of Killkelly Road for access to the San Joaquin River. Plaintiffs also sought damages for alleged slander of title and related tort causes of action. Defendants cross-complained, claiming that the public had a right of access to the river from Killkelly Road and consequently the subdivision map would have to be reformed or amended to specifically provide for such access.
The various issues raised by the pleadings included: Did plaintiffs have a right to maintain a private, gated subdivision from which the public could be excluded? Who owned Killkelly Road and other roads in the subdivision? Did plaintiffs possess easement rights to use Killkelly Road for access to the river? Should a public access route to the river through the subdivision have been expressly provided for on the final subdivision map approved by the county, pursuant to Government Code section 66478.1 et seq.?
The trial court resolved the main issues in plaintiffs’ favor by determining the private (nonpublic) character of the gated residential area, confirming plaintiffs’ easement rights to use Killkelly Road and denying defendants’ claim of public access to the river. Thereafter, a jury heard the tort causes of action and awarded damages to plaintiffs for slander of title and nuisance, including punitive damages. Defendants filed this appeal from the judgment and plaintiffs cross-appealed as to certain issues. Between them, the parties challenge almost every outcome below. We conclude that with a few significant exceptions (e.g., road ownership and certain development restrictions imposed on defendants), the results obtained in the trial court were correct and/or did not constitute an abuse of discretion. In short, our disposition will be to affirm the judgment in part and to overrule it in part.
At the outset, we briefly highlight two publishable issues. The first such issue is whether, for purposes of the right of public access, the section of the San Joaquin River under consideration is a public (i.e., navigable) waterway. Although we stop short of deciding that issue here, our discussion will shed light on a significant uncertainty that exists in the law of navigability in cases such as this. The second publishable issue before us relates to the cause of action for slander of title. The particular question is whether a slander of title cause of action may be maintained if the only pecuniary damages proven by plaintiffs are the attorney fees incurred to clear the slandered title. We conclude that such damages are sufficient, without the need to prove other pecuniary harm, at least where (as here) the slander of title was by means of a recorded instrument.
FACTS AND PROCEDURAL HISTORY
Creation of the Sumner Hill Subdivision
Carolyn Peck (Peck) and her late husband, Sumner Peck, owned a considerable swath of agricultural land in Madera County (the County) between Highway 41 and the San Joaquin River off of Road 204. The property was known as Peck Ranch. During the events relevant to this appeal, Peck Ranch was owned and operated by a family owned company known as Sumner-Peck Ranch, Inc. (Sumner-Peck). In the 1980’s, Peck wanted to subdivide a portion of Peck Ranch to create a tract of custom residential lots on hills above the surrounding farmland and near the river. A specific development proposal was made by Sumner-Peck to the County.
The County had concerns with the proposal for a residential development in that location. First, it was recognized that there could be an adverse impact on nearby cattle-grazing operations, with a particular issue of pet dogs harassing cattle. Second, the site was remote from law enforcement support and the County was concerned about the cost of responding to that site when its law enforcement resources were already stretched thin.
In 1983, the County approved the proposed subdivision, known as Sumner Hill. As a condition for approval, the County required Sumner-Peck to install a security gate and a perimeter fence around the subdivision, which measures were imposed to keep homeowners’ dogs away from nearby cattle and to minimize the need for law enforcement to travel to the subdivision’s remote location. Madera County Service Area No. 16 was established for the purpose of providing necessary services to the proposed subdivision. A final subdivision map for Sumner Hill was recorded in 1984. An amended final subdivision map (the Amended Map) was approved and recorded in 1985.
The Amended Map for Sumner Hill created a tract of 49 custom residential lots on approximately 160 acres (the 49-Lot area) surrounded by several “Outlots” of varying sizes (lettered as Outlots A through 1), a road system, and other appurtenant facilities providing the infrastructure of the subdivision. The 49-Lot area was bordered on the west by Outlots A and B, which comprise approximately 500 acres of agricultural or open land. On its eastern side, the 49-Lot area is separated from the San Joaquin River by Outlots C and D, which comprise approximately 50 acres of steeply sloped land accessible from Killkelly Road. The Amended Map reflected that all the roads within the Sumner Hill subdivision were dedicated as public roads. Killamey Drive was the main road in the subdivision and provided access to the 49-Lot area from Road 204. Several small cul-de-sacs branched off of Killamey Drive. Killkelly Road, which also branched off of Killamey Drive, traversed down a steep hill to the San Joaquin River. The Amended Map showed Killkelly Road in solid lines as it crossed over Outlet C, then in broken lines as it continued to the river over Outlet D, where a 60-foot easement for ingress and egress was indicated.
As developed, Killamey Drive and the cul-de-sacs were paved, while Killkelly Road remained a dirt road. Before sales of the individual lots commenced, a security gate was installed at the front entrance to the subdivision at Killamey Drive, and a fence was installed around the perimeter of the 49-Lot area. The security gate required a pass code to enter.
Marketing of the Residential Lots at Sumner Hill
In 1984, the Department of Real Estate issued a final subdivision public report (referred to as “the white paper”). Among other information, the white paper notified potential purchasers of the uses of the Outlots at that time. For example, it stated that Outlots A through D were agricultural and/or open space, while Outlots F through J were agricultural but also contained facilities used by Sumner Hill lot owners, such as water wells, tanks and wastewater treatment. According to the white paper, the Outlots were not for sale and Sumner-Peck would continue to own fee title to them. It explained that although “Certain of the Outlots . . . will contain some facilities (for example water wells and the leachfield) which will be operated and maintained by the Madera County Service Area Number 16,” fee title to the Outlots remained in Sumner-Peck. Indeed, the white paper observed that, at that time, “Vast amounts of the Outlots . . . consist of recently planted vineyards which are part of the Sumner Peck Ranch Operation.” (Some capitalization omitted.)
Peck engaged real estate agent Don Becker of Pearson Realty to market and sell the 49 residential lots. A marketing brochure was prepared under Peck’s supervision. With Peck’s approval, Becker gave the brochure to prospective purchasers. The brochure stated that residents of Sumner Hill will “[e]nter through the electronic security gate” and enjoy “protected privacy.” It also stated that they will “enjoy open common areas and river access,” and a map was attached showing river access from Killkelly Road. Peck authorized Becker to tell prospective purchasers that all lot owners at Sumner Hill would have a right of access to the river, and Becker did so. He believed that river access was a unique selling point for the subdivision.
David Swain was one of the first to purchase a lot at Sumner Hill in late 1985 or early 1986. Becker gave him the marketing brochure and also told Swain that “if [he] bought a lot out there, [he] had access to the river. That was part of the deal.” When Swain bought his lot, the security gate and perimeter fence were in place. Becker told him they were for the “safety and security of the development.”
The sale of lots in the mid-1980’s proceeded slowly. In September 1986, after only six lots had been sold, Wells Fargo Bank, the project lender, took over the remainder of the 49 lots upon receipt of a deed in lieu of foreclosure. Thereafter, Wells Fargo Bank hired Becker to continue marketing and selling the lots. Richard Muma of Wells Fargo Bank authorized Becker to continue to use the marketing brochure and to tell prospective purchasers that river access was one of the amenities of the subdivision. Peck had informed Muma that the lot owners were allowed to use Killkelly Road for access to the river, as promised in the brochure. Becker continued to market the lots for Wells Fargo Bank with “[e]xactly” the same approach and materials as he had used for Peck.
Eric Fogderude purchased a lot at Sumner Hill in 1987. Becker gave Fogderude the marketing brochure, a copy of the Amended Map, the white paper and a newspaper article about the subdivision. Becker told Fogderude that the subdivision was a private, gated community, fenced for security purposes, and that river access was included. These were “primary considerations” for Fogderude in his decision to buy the lot.
Gary Christy also purchased a lot at Sumner Hill in 1987. He had received the marketing brochure and a copy of the white paper. The security gate was in place when he viewed the property, and he was told by Becker that Sumner Hill was a private, gated subdivision. Becker also told him that lot owners would have river access and the Outlots were not going to be developed. Another agent at Pearson Realty said essentially the same thing. Christy relied on these statements and the statements in the marketing brochure when he purchased his lot.
Michael Seng bought his lot at Sumner Hill sometime after Wells Fargo Bank took over. Before Seng bought his lot, he had discussions with Becker and received a copy of the marketing brochure. Becker promised Seng that lot owners would have access to the river from Killkelly Road, which was important to Seng. Seng understood that the statements in the marketing brochure regarding river access, an electronic security gate and protected privacy were promises that were “all part of the package.” However, Seng was concerned that he bought his lot from one party (i.e., Wells Fargo Bank) but another party (Sumner-Peck) apparently owned or controlled the land on which Killkelly Road was situated. He therefore wanted something in writing as a further assurance of his right of river access. He entered into a license agreement with Sumner-Peck that expressly gave him a right of pedestrian and automobile passage along Killkelly Road to the river. The license agreement was signed by Peck and recorded in June 1987.
The last Wells Fargo-owned lot at Sumner Hill was sold in late 1989. Others who presently own a lot/home in Sumner Hill subdivision, such as David Kaye and Susan Early, bought from intervening owners.
When each of the 49 residential lots in the Sumner Hill subdivision was sold, title to each lot was transferred by a deed that described the real property conveyed by reference to the Amended Map, which map specifically depicted the subdivision’s roadway system, including Killkelly Road.
The Security Gate and Fence
Since the time that the residential lots were first marketed and sold, a security gate was in place at the entrance to the subdivision. The security gate required a pass code to open. Thus, the general public had always been excluded from the subdivision. When uninvited members of the general public found their way into the 49-Lot area, residents asked them to leave and occasionally called law enforcement. In addition, “Private Property—No Trespassing” signs had been posted at the entrance and at other locations in one form or another since the inception of the subdivision. The perimeter fence had likewise been in place from the beginning.
Initially, there was apparently a question of who was responsible for maintaining the security gate and fence. Sumner-Peck attempted to transfer the gate and fence to the County, but the County rejected the offer. Wells Fargo Bank amended the CC&R’s in 1988 to provide that the Sumner Hill Homeowners’ Association (the Association) would be responsible for maintaining the gate and fence. Since then, the security gate and fence have been maintained by the Association.
The Roads
A number of documents were presented in the trial court on the question of ownership of the roads in the Sumner Hill subdivision. As noted, the Amended Map showed that “THE STREETS AND EASEMENTS” in the subdivision, including Killkelly Road, were dedicated “FOR PUBLIC USE.” The words of dedication did not specify a transfer of fee title to the roads, which ordinarily would mean that only an easement for road purposes was transferred to the public agency. The trial court followed that general rule in construing the words of dedication, concluding that Sumner-Peck retained fee title to the roads.
In 1986, Sumner-Peck entered into an agreement with the County for the purpose of securing a second source of water for the subdivision. The agreement provided that Sumner-Peck transferred all of its right, title and interest in the subdivision’s water system, drainage, sewage system and “road systeni” (as defined in an attached exhibit) to the County. The attached exhibit described only specified road “[(Improvements” such as roads, curbs and gutters of the subdivision’s roads, but did not expressly include title to the land on which the roads were situated. The trial court concluded the 1986 agreement did not alter Sumner-Peck’s fee title ownership of the subdivision roads, but only transferred improvements relating to said roads.
In 1993, the County vacated its interest in Killkelly Road, finding it unnecessary for any present or prospective public use. In 1995, the County vacated all (other) “roads of the Sumner Hill Subdivision,” and then conveyed all of its interest in such roads to the Association. The 1995 conveyance was by grant deed, which stated that it included the “fee interest” in the real property (i.e., the roads) being conveyed. The County’s 1995 resolution approving the vacation of the roads and subsequent conveyance of the County’s interest in the roads included a requirement that the Association own, operate and maintain the subdivision roads as private roads for the benefit of the lot owners within the subdivision and that the County and County Service Area No. 16 would no longer have any responsibility for maintenance of the roads. Historically, even before 1995, the Association had undertaken some efforts to maintain the paved roads in the subdivision.
With respect to road usage, the homeowners at Sumner Hill regularly used Killamey Drive, the cul-de-sacs and Killkelly Road from the inception of the subdivision. Moreover, they enjoyed unrestricted use of Killkelly Road to reach the San Joaquin River, including both pedestrian and vehicular use. The Peck family never prevented the homeowners from accessing the river at any time nor complained about them doing so.
In late 2002, the Association paid for and installed a gate inside the subdivision at the top of Killkelly Road. A few of the homeowners did the actual installation. The installation of the gate was done with permission of a Peck family member, Maury Peck, who managed Peck Ranch. The entry code for the gate lock was known to the Peck family and to the Sumner Hill homeowners, and it was freely used by both groups to gain entry to Killkelly Road. Sale of Peck Ranch to Rio Mesa Holdings, LLC, and Major Development Proposed
In 2003, contracts were signed in which Sumner-Peck agreed to sell the entire remainder of Peck Ranch, including the subdivision Outlots, to an entity that later assigned all of its rights to Rio Mesa Holdings, LLC. During the escrow, Rio Mesa Holdings, LLC, as buyer, had a specific period of time to complete its investigation of the property and Sumner-Peck, as seller, was required to cooperate in that investigation. In November 2004, escrow closed and the Peck Ranch property, including the Outlots, was conveyed to Rio Mesa Holdings, LLC.
At the time of the sale of Peck Ranch to defendant, Sumner-Peck did not disclose any information or documents relating to either the homeowners’ use of Killkelly Road for access to the river or their expectation that Sumner Hill 'was a private, gated subdivision. Likewise, defendant never asked Peck or the Sumner Hill homeowners about such matters before purchasing the property. Robert McCaffrey, who was manager of Rio Mesa Holdings, LLC, explained that he did not think such questions were necessary. When Peck had given McCaffrey a tour of the property, it was apparent to McCaffrey that Peck (or Sumner-Peck) owned the gates and roads in the Sumner Hill subdivision since Peck had access to and could open all of the security gates (including at Killamey Drive and Killkelly Road) using a Peck Ranch standard entry code, even where “no trespassing” signs were posted. Also, Outlots A and B clearly abutted the subdivision roads at a number of locations, and the existence of these access points gave McCaffrey the impression that it was a phased development. As for Killkelly Road, it had a security gate opened by Peck and the steep dirt road appeared to be in such a condition that it would only be used by ranch and farm trucks to get to Outlot D below. According to McCaffrey, he did not think the homeowners used Killkelly Road for vehicular access to the river. From these initial observations and impressions, McCaffrey assumed in purchasing Peck Ranch that there would be no hindrance to having access to all parts of Peck Ranch (including the Outlots) on the existing road system in the Sumner Hill subdivision. Moreover, he was sure the general public had a legal right of access to the river through the subdivision.
As noted, escrow closed in November 2004. The following year, Rio Mesa Holdings, LLC, announced through McCaffrey its plans for a massive residential and commercial development that would be known as “Tesoro Viejo.” A related McCaffrey-led entity, defendant Tesoro Viejo, Inc., allegedly was in the process of obtaining the entitlements for the development and had an option to purchase the property from Rio Mesa Holdings, LLC. The new development would be located on the Peck Ranch property, including on portions of Outlets A through D of the Sumner Hill subdivision.
As proposed by defendants, the Tesoro Viejo development would include a public access route to the San Joaquin River directly through the Sumner Hill subdivision down Killkelly Road. McCaffrey was convinced that the public had a right to such river access and it became an important aspect of the Tesoro Viejo proposal. Defendants hoped to offer river access to future purchasers of residential lots in Tesoro Viejo, which would enhance the marketability and value of those lots. As proposed, such river access would include pedestrian or bike trails crossing through the subdivision, as well as limited vehicular access. Defendants also proposed to build a winery and restaurant by the river on Outlot D, with vehicular access provided through Sumner Hill using Killkelly Road.
McCaffrey and Defendants Interact with Sumner Hill Homeowners
McCaffrey claimed that he first learned the Sumner Hill homeowners had vehicular access to the river on Killkelly Road when, in April 2005, he encountered a young man in a pickup truck at the bottom of Killkelly Road who told McCaffrey that he needed no help getting back out the gate because he was a Sumner Hill resident and all of the residents knew the access code. McCaffrey immediately contacted Peck’s office manager, Ken Lazarus (who was also Peck’s son-in-law). Lazarus responded to McCaffrey by letter dated May 9, 2005, stating that it was Sumner-Peck’s intent “to give the Sumner Hill residents some kind of a right to go down the road to have access to the bank of the San Joaquin River,” but Sumner-Peck never got around to formalizing that intent. The letter surprised McCaffrey.
In response, McCaffrey sought the advice of his legal counsel and, in May 2005, Rio Mesa Holdings, LLC, recorded a document entitled “Notice of Permission to Use Land” (Notice of Permission) in the County’s recorder’s office. The Notice of Permission stated that Rio Mesa Holdings, LLC, was the owner of all the Outlots of the Sumner Hill subdivision, including “those portions of Killkelly Road (vacated) lying within and adjoining said Outlots C and D, said road being vacated by resolution of the Board of Supervisors of the County[. A] certified copy of said resolution being recorded December 21, 1993 as Document No. 9334986, which would pass by operation of law.” The Notice of Permission stated that the “public” had a “right” to use the described property for recreational purposes during daylight hours, but that no vehicles were permitted on the property.
At the same time, McCaffrey sent a letter to the Association, informing them that “[sjince we acquired ownership, we have observed that unauthorized vehicular entries are occurring across our property toward the river. This poses a serious liability issue for us and the prospect of environmental harm. Accordingly, we intend to erect a new barrier ... to prevent vehicular access across our property, [f] As a good neighbor gesture, we will provide Sumner Hill residents and other members of the public pedestrian access to the river for recreational enjoyment. Accordingly, to protect our legal rights and to minimize liability, we will be recording a Notice of Permission to Use Land under Civil Code Section 813 and posting the principal entry to our property. . . . No vehicular access will be allowed and the restrictions shown in the recorded notice will apply.”
Soon thereafter, a new locked gate was installed by defendant near the top of Killkelly Road that prevented vehicular access. Defendant also hired private security guards to patrol for trespassers on defendant’s property and to prevent vehicular access to the river from Killkelly Road. Sumner Hill homeowner David Kaye testified of several incidents in which he attempted to use Killkelly Road in the evenings (such as for jogging or walking) and was accosted by the security guard and told that he had to leave. Other homeowners had similar experiences. Ultimately, many of the homeowners just stopped going to the river. As homeowner Susan Early put it, defendant’s gate on Killkelly Road, the Notice of Permission posted on the gate and the presence of security guards “turned what had been a place of respite and healing into a battle ground.”
In August 2005, an attorney for the Association wrote a letter to McCaffrey, which set forth the position that the Association owned the subdivision roads, including Killkelly Road, and enclosed a copy of the 1995 grant deed from the County purporting to convey a fee interest in the Sumner Hill road system to the Association. The letter insisted that the residents of Sumner Hill had a right of access to the river from Killkelly Road and challenged McCaffrey to prove otherwise.
On October 23, 2005, the Association held its annual meeting. Since McCaffrey and his wife purchased a lot in the subdivision earlier that year, they attended the meeting. At the meeting, numerous homeowners voiced objections to McCaffrey about defendant’s denial of their right of access to the river from Killkelly Road. They also objected to defendant’s plan to open their private, gated community to the general public. They realized that the Peck Ranch property would be developed, but they wanted to protect what they had (i.e., a private, gated subdivision with an unrestricted right of access to the river from Killkelly Road). McCaffrey spoke, answered questions and tried to explain his position. He said he could not help what had been represented to homeowners when they purchased their lots. He claimed that his company now owned Killkelly Road and could lawfully develop access through the subdivision down to the San Joaquin River. He also expressed his view that the public had a legal right of access to the river. He invited the homeowners to cooperate with him regarding the way the development would take shape. Ultimately, both sides stated their positions respectfully, but neither side gave ground.
A week or two later, McCaffrey called to see if he could work things out with the homeowners. He met with homeowners Eric Fogderude, Michael Seng and Gary Christy over lunch. Fogderude told McCaffrey the homeowners were not trying to stop his development as long as it did not interfere with their “core issues of a private gated community and . . . unrestricted rights down to the river.” McCaffrey presented copies of his updated plans that depicted a trail going through the Sumner Hill subdivision and a winery/restaurant at the river with access through the subdivision. The planned trail would use portions of Killamey Drive and all of Killkelly Road in order to reach the river. The three homeowners responded that such a proposal was unacceptable.
The Pleadings
Plaintiffs, consisting of several of the individual homeowners and the Association, filed their lawsuit in April 2006 against defendants. Plaintiffs’ operative pleading at the time of trial was their second amended complaint. Among other things, the second amended complaint sought the following declaratory relief: that each owner of a lot in the 49-Lot area had a private easement over all the roads shown on the Amended Map, including Killkelly Road; that defendant had no right to install the gate on Killkelly Road or to restrict plaintiffs’ access to the river; that Outlots A through D must not be used for purposes other than open space or agricultural use; that the Association owned all of the roads in the subdivision, including Killkelly Road; that any right defendant may have as owner of the Peck Ranch property to pass through the subdivision to reach Outlots C and D did not include a right to expand that access to include the general public; and that any right the general public had to access the San Joaquin River could best be accomplished through alternative routes, such as an access path through the Freelses’ property (the adjacent land to the north of the Sumner Hill subdivision). Plaintiffs’ second amended complaint also sought damages for tort causes of action, such as alleged slander of title regarding plaintiffs’ easement rights to use Killkelly Road.
Defendants cross-complained, seeking declaratory relief and reformation of the Amended Map, which they claimed was invalid because it did not expressly provide for public access to the San Joaquin River. At the time of trial, defendants’ operative pleading was their first amended cross-complaint. The cross-complaint alleged, among other things, that the failure of the Amended Map to expressly provide an access way to the river contravened California law, including section 66478.4, thereby rendering the Amended Map defective. The relief sought included a request that the trial court issue a decree reforming the Amended Map “to provide for public access or a public easement to the River through the Subdivision” using Killkelly Road.
On October 30, 2006, the trial court granted a preliminary injunction ordering defendants to immediately remove the gate installed by defendant(s) on Killkelly Road and to refrain from interfering with plaintiffs’ (or other homeowners’) access to the San Joaquin River from Killkelly Road. Defendants promptly complied.
Trial Proceedings, Statement of Decision and Jury Verdict
The trial was bifurcated between the parties’ equitable claims (tried to the court) and damage claims (tried to a jury). The court trial began in January 2008, lasted approximately 20 days, and included the trial court’s firsthand viewing of the property, testimony from over 30 witnesses, and introduction of hundreds of documents into evidence. The parties argued the issues at length, filed pre- and posttrial briefs and filed objections to the trial court’s proposed tentative decision. On July 21, 2008, the trial court issued a 95-page statement of decision on the parties’ equitable claims.
In its statement of decision, the trial court made a number of key findings, including as follows:
1. The Sumner Hill subdivision comprised the 49-Lot area, the Outlots and the subdivision roads, all as depicted on the Amended Map.
2. Defendants owned fee title to the subdivision roads, but plaintiffs had easement rights to use all of the roads, including use of Killkelly Road for pedestrian and vehicular access to the San Joaquin River.
3. Plaintiffs had a right to maintain Sumner Hill as a private, gated subdivision, which included the right to exclude the general public from the subdivision.
4. Defendants were not restricted from developing Outlots A through D, but could only do so in a manner consistent with the rights of the owners of the 49 lots to maintain the character of the 49-Lot area as a private, gated subdivision. In developing Outlots A through D, defendants would have two alternative approaches. Defendants could create residential lots in Outlots A through D that would be an extension (or subsequent phase) of the private, gated, fenced community of the 49-Lot area, in which case the residential development in Outlots A through D would be under the Sumner Hill CC&R’s and its residents would have access to the river. Alternatively, defendants could develop Outlots A through D as “outside” or separate from the existing, gated, fenced 49-Lot area as a distinct residential development, but the residents of that outside development would not be under the Sumner Hill CC&R’s and would not have access to the river through the 49-Lot area.
5. Although the subdivision borders on the San Joaquin River and the river was a navigable waterway at that point, and thus the Amended Map was supposed to provide for public access to the river under sections 66478.4 and 66478.5, defendants’ claim (that the Amended Map was defective for failure to provide such access) was barred by the doctrine of laches.
Thereafter, and prior to the second phase of the trial on the parties’ damage claims, the trial court issued an order determining that attorney fees and costs were an element of damages in plaintiffs’ slander of title claim, which would be presented to the jury for determination.
The jury trial phase of the case relating to the parties’ damage claims occurred in April and May 2009. It lasted 12 court days, with the jury personally viewing the property and hearing the testimony of over 30 witnesses. Closing arguments lasted two full days. The jury found in favor of plaintiffs on the slander of title and nuisance causes of action and awarded compensatory damages to plaintiffs in the total sum of $803,951. The jury also found malice on the part of Rio Mesa Holdings, LLC, and imposed punitive damages against that defendant in the sum of $2,419,800.
On July 22, 2009, a judgment was entered incorporating the trial court’s statement of decision and the jury verdicts. This appeal and cross-appeal followed.
ISSUES ON APPEAL
We briefly summarize the main issues raised by the parties in the appeal and cross-appeal. Defendants’ appeal claims the trial court reversibly erred by (1) applying the defense of laches to defeat the public’s right of access to the San Joaquin River; (2) deciding that Sumner Hill was a private, gated subdivision from which the public could be excluded; (3) finding that plaintiffs have easement rights to use Killkelly Road for access to the river; (4) concluding that Outlots A through D were subject to the development restrictions contained in the Sumner Hill CC&R’s; (5) allowing the jury to award damages for slander of title in this case; and (6) failing to reduce the amount of the punitive damage award in light of due process considerations.
Plaintiffs’ cross-appeal claims the trial court erred by (1) holding that defendants have fee title ownership of the roads in the subdivision; (2) failing to apply the statute of limitations defense to defendants’ public access claim under the Subdivision Map Act; and (3) holding that, but for the defense of laches, defendants would otherwise have a valid claim of public access under the Subdivision Map Act. On this latter point, plaintiffs contend the alleged claim of public access failed because the river was not navigable as a matter of law.
Because of the overlap of issues in the appeal and cross-appeal, we have elected to group related issues and contentions together, according to subject matter.
DISCUSSION
I. Public Access to the River Through the Sumner Hill Subdivision
We begin with defendants’ claim to establish a public access route to the San Joaquin River through the Sumner Hill subdivision. Defendants’ first amended cross-complaint alleged that the Amended Map was invalid because it did not expressly provide a means of public access to the river as required by section 66478.1 et seq. The relief sought by defendants included a request that the trial court reform or amend the Amended Map “to provide for public access or a public easement to the River through the Subdivision.” The trial court denied such relief, holding that while defendants’ claim was otherwise correct, it was barred by the defense of laches. Defendants contend on appeal that the trial court erred in applying the defense of laches to a public right. In their cross-appeal, plaintiffs argue that the Amended Map was not subject to the referenced statutory provisions because the river was not “navigable” where it bordered the subdivision and, in any event, defendants’ claim was time-barred by the statute of limitations. Finally, in responding to plaintiffs’ cross-appeal, defendants assert a new theory on appeal relating to their basis for public access.
We shall address the issues pertinent to defendants’ public access claim in the following order: (1) navigability, (2) statute of limitations (rather than laches), and (3) defendants’ new theory on appeal. But first, we provide a summary of the relevant constitutional and statutory provisions that protect public access to the public waters of this state.
A. Overview of Constitutional and Statutory Provisions
The California Constitution provides: “No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable for the people thereof.” (Id., art. X, § 4.) This constitutional protection of public access to navigable waters was first adopted in 1879 as then article XV, section 2, and is now found in article X, section 4 of the California Constitution. (State of California v. Superior Court (Lyon) (1981) 29 Cal.3d 210, 227 & fn. 15 [172 Cal.Rptr. 696, 625 P.2d 239].)
In order to implement this constitutional provision, in 1974 the Legislature enacted section 66478.1 et seq., which addressed the subject of public access to public waters in the context of the approval of subdivision maps by local agencies. (Stats. 1974, ch. 1536, § 4, p. 3464, operative Mar. 1, 1975.) These public access provisions comprise article 3.5 of chapter 4 of the Subdivision Map Act. (Cf. §§ 66410, 66478.1 et seq.) The Legislature expressed its principal concerns and objectives in passing the public access requirements of the Subdivision Map Act: “The Legislature finds and declares that the public natural resources of this state are limited in quantity and that the population of this state has grown at a rapid rate and will continue to do so, thus increasing the need for utilization of public natural resources. The increase in population has also increased demand for private property adjacent to public natural resources through real estate subdivision developments which resulted in diminishing public access to public natural resources.” (§ 66478.2.) “The Legislature further finds and declares that it is essential to the health and well-being of all citizens of this state that public access to public natural resources be increased. It is the intent of the Legislature to increase public access to public natural resources.” (§ 66478.3.)
Section 66478.4, subdivision (a), provides the means of accomplishing these goals by imposing the following requirement: “No local agency shall approve either a tentative or a final map of any proposed subdivision to be fronted upon a public waterway, river, or stream which does not provide, or have available, reasonable public access by fee or easement from a public highway to that portion of the bank of the river or stream bordering or lying within the proposed subdivision.” Section 66478.5, subdivision (a), requires an additional easement “along a portion of the bank of the river or stream bordering or lying within the proposed subdivision.” The aforesaid public access route or routes to a public waterway and the easement along the bank of the public waterway “shall be expressly designated on the tentative or final map, and this map shall expressly designate the governmental entity to which the route or routes are dedicated and its acceptance of the dedication.” (§ 66478.6.)
Section 66478.8 allows that alternative access near the subdivision may be sufficient in some cases. It states: “Nothing in Sections 66478.1 to 66478.10, inclusive, of this article shall require a local agency to disapprove either a tentative or final map solely on the basis that the reasonable public access otherwise required by this article is not provided through or across the subdivision itself, if the local agency makes a finding that the reasonable ■public access is otherwise available within a reasonable distance from the subdivision and identifies the location of the reasonable public access. [][] The finding shall be set forth on the face of the tentative or final map.” (§ 66478.8; see, e.g., Kern River Public Access Com. v. City of Bakersfield (1985) 170 Cal.App.3d 1205, 1216-1217 [217 Cal.Rptr. 125] [§ 66478.8, along with §§ 66478.4, 66478.5, must be construed to maximize access to navigable rivers of our state].)
By their own terms, the sections of the Subdivision Map Act discussed above are designed to protect public access to the state’s public waters. Thus, the statutory definition of what constitutes a public waterway, river or stream is foundational to our analysis. Section 66478.4, subdivision (c), provides that needed definition. It states that a “public waterway, river or stream” for purposes of sections 66478.4, 66478.5, and 66478.6 means “those waterways, rivers and streams defined in Sections 100 through 106 of the Harbors and Navigation Code.” (§ 66478.4, subd. (c), italics added.) Harbors and Navigation Code section 100 specifies that public waterways, rivers or streams are those that are navigable. Harbors and Navigation Code sections 101 through 106 then expressly list a number of rivers, streams and other waters, or portions thereof, that are declared by the Legislature to be navigable. The statutory listing is not exhaustive, and a river or other waterway may be found to be navigable in fact even if it is not mentioned in sections 101 through 106 of the Harbors and Navigation Code. (People ex rel. Baker v. Mack (1971) 19 Cal.App.3d 1040, 1048-1049 [97 Cal.Rptr. 448].)
The San Joaquin River is one of the rivers listed by name in the Harbors and Navigation Code provisions addressing navigability. Section 105 of that code states: “The following streams and waters are also navigable and are public ways: [][]... [][] San Joaquin River, between its mouth and Sycamore Point.” Thus, the statute expressly declares the San Joaquin River to be navigable to a certain point—Sycamore Point. It is undisputed that the segment of the river bordering the Sumner Hill subdivision is above Sycamore Point. This fact raises an important question of statutory construction: Does the legislative declaration that the river is navigable to a certain point mean, by implication, that the river is declared nonnavigable above that point? Indeed, plaintiffs make that very argument, which we explain below in our discussion of navigability.
B. The Issue of Navigability
As our summary of the law has shown, the applicability in this case of the constitutional and statutory provisions relied on by defendants to support their claim of public access depend on the river’s navigability. Unless the San Joaquin River is navigable where it borders on the subdivision, defendants’ claim must fail as a matter of law.
Plaintiffs argue that the river is nonnavigable based on Harbors and Navigation Code section 105. They contend that we should apply the maxim of statutory construction that says expressio unius est exclusio alterius, meaning that “ ‘[t]he expression of some things in a statute necessarily means the exclusion of other things not expressed.’ ” (Lake v. Reed (1997) 16 Cal.4th 448, 466 [65 Cal.Rptr.2d 860, 940 P.2d 311], quoting Gikas v. Zolin (1993) 6 Cal.4th 841, 852 [25 Cal.Rptr.2d 500, 863 P.2d 745].) In other words, by expressly addressing the issue of navigability of the San Joaquin River and delineating the portion of the river deemed navigable (see Harb. & Nav. Code, § 105), the Legislature meant to exclude the remainder of the river from that classification.
Moreover, plaintiffs point out that this issue of statutory construction of our state’s navigability statutes was long ago decided by our Supreme Court in American River Water Co. v. Amsden (1856) 6 Cal. 443 (American River Water Co.), a case that turned on the question of whether a portion of the American River was navigable. In deciding that question, the Supreme Court considered the predecessor statutes to the Harbors and Navigation Code provisions now before us. The relevant statute had described the American River as being navigable up to a particular point below the dam owned by the plaintiffs. The Supreme Court found this legislative declaration on navigability to be dispositive: “In regard to the river under consideration, the statute declares it to be navigable up to a point which is below the dam of the plaintiffs. Thus by implication it is declared non-navigable above that place.” (American River Water Co., supra, at p. 446, italics added.) The identical statutory interpretation was applied in Ford v. County of Butte (1944) 62 Cal.App.2d 638 [145 P.2d 640] (Ford), where the Court of Appeal concluded that a portion of the Feather River was not navigable because Harbors and Navigation Code section 102 declared the river to be navigable up to a certain point, and the area of the river at issue was above that point. (Ford, supra, at p. 641.)
Plaintiffs argue that we should follow the statutory interpretation adopted by American River Water Co. and followed in Ford. That is, when Harbors and Navigation Code section 105 declared the San Joaquin River to be navigable up to Sycamore Point, by a clear implication it declared the river to be nonnavigable above that point. Plaintiffs’ argument continues: Since the San Joaquin River where it borders the Sumner Hill subdivision is above Sycamore Point, that segment of the river is not navigable and, therefore, the public access requirements of section 66478.4 were inapplicable to the Amended Map.
Defendants counter that American River Water Co. was decided before the 1879 adoption of the constitutional provision protecting access to navigable waters. (See Cal. Const., art. X, § 4, formerly art. XV, § 2.) In light of that subsequent constitutional enactment, they argue American River Water Co. is no longer good law. Instead, according to defendants, section 66478.4 and Harbors and Navigation Code section 105 should be liberally construed to protect public access to any portion of the river shown to be navigable in fact. In this regard, defendants contend that the true test of navigability is a factual one that looks to whether a canoe or other small boat may be floated on it. (See People ex rel. Baker v. Mack, supra, 19 Cal.App.3d at p. 1044.) Since there was evidence of such canoe usage on the river where it bordered the subdivision, defendants argue that navigability and a concomitant right of public access were thereby established.
The trial court agreed with defendants’ position. It held: “[T]he Court must give liberal construction to the Subdivision Map Act as it applies to public access to waterways, which must trump the maxim of statutory interpretation and American River Water (inasmuch as it was decided before Article X, Section 4, was added to the Constitution). Because the segment of the San Joaquin River which borders the Sumner Hill subdivision is navigable in fact, the Court finds that such segment of the San Joaquin River is a navigable river or stream within the meaning of Section 66478.1.”
We decline to decide the issue of navigability in this case because, as will be seen, other issues are ultimately dispositive. Nevertheless, we believe it is important to call attention to a basic uncertainty in the law of navigability that has emerged in this case, which is arguably in need of correction or clarification by either the Legislature or the Supreme Court. We now further explain the nature of the problem.
Though decided in 1856, American River Water Co. arguably remains binding precedent because it has not been overruled and, as noted below, was applied by the Supreme Court even after the 1879 constitutional provision. As an intermediate court, we are bound to follow Supreme Court precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937] [subordinate courts must follow decisions of Supreme Court].) To reiterate, American River Water Co. held that when the relevant statute (the provision identifying navigable waters) declared the American River to be navigable up to a certain point, by clear implication it declared the river to be nonnavigable above that point. (American River Water Co., supra, 6 Cal. at p. 446.) If we applied that statutory constmction to Harbors and Navigation Code section 105 in the present case, it would obviously lead to the conclusion that the San Joaquin River was not navigable at the location of the subdivision.
Defendants’ position is that because American River Water Co. was decided before the adoption of the 1879 constitutional provision regarding public access to navigable waters (Cal. Const., art. X, § 4, formerly art. XV, § 2), it is no longer controlling authority. We fail to see how the 1879 constitutional provision would necessarily require a rejection of the statutory interpretation adopted in American River Water Co. Moreover, in Cardwell v. County of Sacramento (1889) 79 Cal. 347 [21 P. 763] (Cardwell), decided 10 years after the constitutional provision was in place, the Supreme Court explicitly applied the statutory construction announced in the American River Water Co. case. (Cardwell, supra, at pp. 349-350.) In Cardwell, after first commenting on the plaintiff’s general failure to allege the river was actually navigable, the Supreme Court emphasized the overriding importance of the Legislature’s declaration of nonnavigability: “But however this may be, the words [(i.e., ‘navigable streams’)] certainly cannot be held to include streams which have been in effect declared by the legislature to be non-navigable.” (Cardwell, supra, at p. 349.) Although not decisive of the issue, the fact that Cardwell was decided after the 1879 constitutional provision was adopted and expressly applied the statutory construction articulated in American River Water Co., weighs against defendants’ position. Cardwell further illustrates that we must not disregard the Legislature’s statutory declarations of the navigability of certain rivers and streams. Although navigability may be a factual issue for the courts to decide, it may also be declared by the Legislature. (San Francisco v. Main (1913) 23 Cal.App. 86, 88 [137 P. 281].)
In American River Water Co. and Cardwell, the rivers were found to be nonnavigable both “in fact” and by implied legislative declaration. In our case, the lower court determined that the relevant area of the San Joaquin River was navigable in fact despite the Legislature’s apparent declaration by implication that it is nonnavigable above Sycamore Point, where this subdivision lies. We have found no cases which address this anomalous circumstance, where, under the rule of American River Water Co., the Legislature has declared a portion of a river to be nonnavigable, when that same portion of the river is determined to be navigable in fact. In the instant case, if we were to find the river navigable, we would not only be disregarding Supreme Court precedent but holding that factual evidence on navigability trumps the apparent legislative intent. On the other hand, if we were to find the river to be nonnavigable, we would be ignoring the trial court’s finding, supported by substantial evidence, that the river is in fact navigable. In this unique case, the two accepted standards of navigability—factual and statutory—have directly collided. Each standard yields the opposite result as to the same portion of the river. We believe this incongruity in the law of navigability is best resolved by the Legislature or the Supreme Court, and we urge them to do so.
In any event, it is unnecessary for us to decide the navigability issue, because even assuming (without deciding) that the river is navigable, defendants’ claims fail on other grounds as we explain below.
C. Statute of Limitations
Plaintiffs argue that defendants’ claims of public access under the provisions of the Subdivision Map Act were barred by the applicable statute of limitations set forth in section 66499.37. We agree.
Section 66499.37 of the Subdivision Map Act stated, at the time defendants’ filed their cross-complaint in 2006, as follows: “Any action or proceeding to attack, review, set aside, void or annul the decision of [a] 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 . . . .” (Italics added.) The 90-day time period in section 66499.37 operates as a statute of limitations and compliance is mandatory. {Sprague v. County of San Diego (2003) 106 Cal.App.4th 119, 128 [130 Cal.Rptr.2d 517].)
This statute of limitations applies broadly to “any action involving a controversy over or arising out of the Subdivision Map Act.” {Hensler v. City of Glendale (1994) 8 Cal.4th 1, 23 [32 Cal.Rptr.2d 244, 876 P.2d 1043] {Hensler).) In this regard, courts look to the gravamen of the action, not its form. {Id. at pp. 22-23.) As noted in Hensler, “Every appellate decision which has considered the issue in a case involving a controversy related to a subdivision has held that section 66499.37 is applicable no matter what the form of the action.” {Id. at pp. 26-27 [cases summarized].) “The broad language the Legislature employed within section 66499.37 was specifically designed to include any challenge, regardless whether procedural or substantive in character, to any subdivision-related decision of either a legislative or advisory entity, or any of the necessary precedent proceedings, acts or determinations pursued before the making of the challenged decision.” {Presenting Jamul v. Board of Supervisors (1991) 231 Cal.App.3d 665, 671 [282 Cal.Rptr. 564].) The “key factor” is that the action attacked or sought review of a decision of a local legislative or advisory body relating to a subdivision under the Subdivision Map Act. {Friends of Riverside’s Hills v. City of Riverside (2008) 168 Cal.App.4th 743, 751 [85 Cal.Rptr.3d 695]; accord, Anthony v. Snyder (2004) 116 Cal.App.4th 643, 655-656 [10 Cal.Rptr.3d 505].)
Defendants’ cross-complaint alleged the Amended Map was defective when the County approved it because the map failed to provide a route for public access, by fee or easement, through the subdivision to the bank of the San Joaquin River as required by section 66478.4. Defendants sought a judicial declaration that the Amended Map was defective, as well as a decree reforming or amending the map to provide for public access through the subdivision. Indeed, the record reflects that the impropriety of the County’s approval of the Amended Map was a basic theme of defendants’ case in the trial court, and was consistently asserted by defendants in their argument and briefing below. Because defendants’ claims challenged or sought review of a decision of a local legislative body relating to a subdivision under the Subdivision Map Act, section 66499.37 was clearly applicable. We conclude that defendants’ claims of public access through the Sumner Hill subdivision under the Subdivision Map Act were barred by the statute of limitations.
In reaching this conclusion, we do not minimize that public access rights are a matter of constitutional protection. While it is true that article X, section 4 of the California Constitution protects access to navigable waters, that section also explicitly calls for legislative implementation. With respect to the precise context before us, the Legislature has plainly done so. The implementing legislation applicable to whether public access must be provided through a particular proposed subdivision, where a tentative or final map is submitted to a local agency for approval, is article 3.5 of chapter 4 of the Subdivision Map Act (§ 66478.1 et seq.). In section 66478.1, the Legislature stated its intent that “the provisions of Sections 66478.1 through 66478.10 . . . implement Section 4 of Article X of the California Constitution [as applicable to] navigable waters.” Here, defendants’ claim was based on the County’s failure to comply with these public access provisions in the Subdivision Map Act, specifically section 66478.4, and therefore the statute of limitations for Subdivision Map Act claims was applicable. Moreover, it is well established that a statute of limitations is enforceable even though constitutional rights may be involved: “[E]ven a constitutional right is subject to reasonable statutory periods of limitation within which to commence an action for its vindication.” (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 886 [150 Cal.Rptr. 606]; accord, Friedland v. City of Long Beach (1998) 62 Cal.App.4th 835, 846 [73 Cal.Rptr.2d 427].) That was the case here.
D. Defendants’ New Theory
As discussed above, plaintiffs’ cross-appeal successfully demonstrated the statute of limitations barred defendants’ public access claims under the Subdivision Map Act. Defendants, in their responsive brief on appeal, expressly abandoned all claims that the Amended Map was defective or that it violated the Subdivision Map Act. In a surprising change of position raised for the first time on appeal, defendants now contend that the County did nothing wrong when it approved the Amended Map and that all along the map provided the required public access route in compliance with the Subdivision Map Act. Under this new theory, the trial court’s error was its failure to recognize this and interpret the Amended Map accordingly.
Defendants’ eleventh-hour turnabout cannot withstand judicial scrutiny because it was not presented in the trial court below and it would be unfair to allow defendants to reinvent the case on appeal. At every step of this case, from the filing of the cross-complaint, law and motion proceedings, a lengthy court and jury trial, closing argument, and request for statement of decision, defendants affirmatively attacked the validity of the Amended Map because it did not provide public access to the river and they asked the trial court to remedy that situation. This theory of the case was conspicuously evident in the closing argument of defendants’ attorney, Patrick Gunn, who acknowledged that he “carefully prepared this case on the Subdivision Map Act issues” as defendants’ “Subdivision Map Act guy.” In the closing argument of the court trial, when discussing the fact that “the map does not currently provide or have available reasonable public access,” Gunn affirmed there “doesn’t seem to be any dispute on that [issue],” since “nobody takes the position that Exhibit 193[, the Amended Map,] currently contains an express dedicated easement to the public from the front gate down to the river where it fronts on Outlet D.” Gunn categorically argued to the court that “the evidence that Your Honor heard at trial, if it showed anything, showed that Madera County made a mistake.” Summarizing defendants’ position, he stated: “[C]ontrary to the California Constitution, contrary to implementing state law, the County approved a subdivision map, this map, Exhibit 193. It failed to provide reasonable access or fee—by fee or easement over Road 204 through the subdivision to the bank of the river where the river fronted up against Outlet D.” To rectify the County’s failure to comply with the law, Gunn insisted that it was “time for the Court to correct that mistake” and thereby provide for the required public access to the river by judicial declaration.
Later, in defendants’ request for a statement of decision, they specifically asked for a finding on the question of whether