CITY OF MALIBU et al., Plaintiffs, v. CALIFORNIA COASTAL COMMISSION et al., Defendants and Respondents; JOHN M. HEIDT, as Trustee, etc., et al., Movants and Appellants, 128 Cal. App. 4th 897

Opinion MALLANO, Acting P. J. John M. Heidt and Mary Ann K. Heidt, as trustees of the John M. Heidt Family Trust, Anne Heidt Sebastian, and John K. Heidt (the Heidts) appeal from an order denying their motion for leave to intervene in an action brought by the City of Malibu (Malibu) and David Geffen against defendants Access for All, a public benefit corporation, public agencies California Coastal Commission and California Coastal Conservancy, and Peter Douglas and Sam Schuchat in their capacities as officers of the public agencies.

The Heidts contend that the trial court abused its discretion in denying intervention, arguing that they have a “direct and immediate interest” in the litigation, that their interests are not being adequately protected by Geffen, and that intervention would not enlarge the issues in the case. Because we conclude there was no abuse of discretion in the denial of intervention, we affirm. BACKGROUND The Heidts, who are the heirs of “big band” leader Horace Heidt, own a beachfront house on Pacific Coast Highway in the Carbon Beach area of Malibu.

Geffen, a well-known entertainment industry executive, owns a residence that is situated on four contiguous beachfront lots, one of which lies immediately to the west of the Heidt residence. (The shoreline at Carbon Beach runs east-west.) In 1983, Geffen applied to the Coastal Commission for a permit to make certain improvements to his property. The Heidts appeared at Coastal Commission hearings on the permit and urged that it not be granted. The Heidts did not prevail and a permit was issued.

The permit included a condition that Geffen sign an offer to dedicate (OTD) easements “to the People of California or the [Coastal] Commission’s designee” that would give the public vertical and lateral access to the shoreline. By its terms, the OTD would expire if not accepted within 21 years.

With respect to the vertical easement, which is at the crux of this case, the OTD provided in part: “Said vertical access easement shall be located within an 18’ wide corridor paralleling the western most property line of [Geffen’s] property and shall provide for a privacy buffer of at least 9’ in width between the access way [and the] developed property to the west of [Geffen’s] holdings”; that is, the property belonging to the Heidts. Geffen signed the OTD. In 1991 and 2000, two additional development permits were issued to Geffen, both conditioned on Geffen signing OTD’s for additional lateral access.

Again, Geffen did so. On January 16, 2002, Access for All, the Coastal Commission, and the Coastal Conservancy entered into an agreement which provided that Access for All would manage the vertical easement and three lateral easements granted by Geffen. The agreement stated in part: “Access for All intends to operate [the] vertical easement from sunrise to sunset, consistent with Los Angeles County beach opening hours, as soon as possible. There is currently a wooden gate at the PCH sidewalk, presumably built by [Geffen], which could in theory be opened immediately.

However, Access for All intends to work with the property owner to develop an access plan for sunrise to sunset access.” On January 17, a “Certificate of Acceptance” was recorded with the Los Angeles County Recorder. It stated that Access for All had accepted Geffen’s OTD’s and that the Coastal Commission acknowledged the acceptance.

On July 3, 2002, Geffen and Malibu filed a petition and complaint against defendants Coastal Commission, Coastal Conservancy, the officers of these agencies, and Access for All, with Geffen alleging three causes of action in mandate, 10 causes of action for injunctive and declaratory relief, and a cause of action for quiet title. Malibu’s allegations were limited to six of the causes of action.

The gravamen of the petition and complaint was that the OTD’s were invalid and that the process by which Access for All had accepted the OTD’s violated constitutional and statutory law in several respects, including by failing to provide proper notice, by failing to be part of a statewide coastal access plan, and by failing to provide for environmental analysis.

Defendants Coastal Commission, Coastal Conservancy, and their officers demurred to the petition and complaint, and to succeeding amended petitions and complaints, discussed below. (Access for All joined the demurrers of its codefendants.) The demurrer to the original complaint was sustained in part. Geffen and Malibu thereafter filed a first amended petition and complaint. On December 6, 2002, a demurrer to this pleading was sustained in part, the trial court ruling that Geffen was barred from advancing any argument in this action that could have been made when he first signed the OTD’s.

Also on December 6, 2002, the Heidts filed a motion for leave to file a complaint in intervention. In their motion, the Heidts asserted that they had satisfied the requirements of Code of Civil Procedure

section 387, subdivision (b), for mandatory intervention and alternatively that they should be granted permissive intervention under subdivision (

a) of that section. (Further

section references are to the Code of Civil Procedure.) Defendants opposed the Heidts’ motion. On January 14, 2003, in conjunction with a ruling regarding clarification of the December 6 order sustaining defendants’ demurrer, the Heidts’ motion was placed off calendar until a second amended petition and complaint had been filed. A renewed request for intervention in the second amended petition and complaint was later denied without prejudice.

Geffen and Malibu next filed their third amended petition and complaint, this time containing a total of two causes of action in mandate, six causes of action for declaratory and injunctive relief, and a cause of action for quiet title. The Heidts again filed a motion for leave to intervene, now seeking to join in all causes of action of the third amended petition and complaint except for the allegation of quiet title.

In support of their motion, the Heidts stated that they had never applied to the Coastal Commission for any development permits, had not received any benefit from the permits granted to Geffen, and had not received notice of the acceptance of Geffen’s OTD’s by Access for All.

The Heidts asserted that their property would be directly affected by use of the vertical accessway, explaining that while the Geffen property “is sheltered from the accessway by a substantial wall, the front porch of the Heidt home looks directly upon and is less than 20 feet from the proposed accessway and gate.” Also, “it will be quite easy for the public to trespass on the Heidt lot for any variety of legal and illegal purposes, use the property to deposit trash, etc.

The beach currently has no lifeguards, no restrooms, no parking, or any kind of public facility.” The Heidts added that Geffen and Malibu did not object to their intervening in the action. On September 8, 2003, in conjunction with a ruling partially sustaining a demurrer to the third amended complaint, the Heidts’ motion for intervention, which defendants had opposed, was denied. The Heidts filed their notice of appeal from the trial court’s ruling on November 6, 2003.

More amended petitions and complaints were later filed by Geffen, ultimately culminating in a sixth amended petition and complaint in which Malibu is no longer a party plaintiff. Defendants’ answer was filed on October 28, 2004. The matter was set for trial to begin on June 6, 2005. At the March 22, 2005 oral argument on this appeal, counsel informed us that “the June trial had been put off for another 30 days,” that it would be a mandate hearing (heard by the Honorable David P.

Yaffe, who has made all of the rulings mentioned in this opinion), and that the hearing will be based on documentary evidence and declarations, with a possibility of live testimony, if appropriate. RELEVANT LEGAL PRINCIPLES

Section 387, subdivision (a), provides that “[u]pon timely application, any person, who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding.

An intervention ... is made by complaint. . . filed by leave of the court. . . .” Stated differently, “ ‘the court has discretion to permit a nonparty to intervene in litigation pending between others, provided; [<J[] The nonparty has a direct and immediate interest in the litigation; and [][] The intervention will not enlarge the issues in the case; and [f] The reasons for intervention outweigh any opposition by the existing parties. [Citations.]’ [Citation.]” (Truck Ins. Exchange v. Superior Court (1997) 60 Cal.App.4th 342, 346 [70 Cal.Rptr.2d 255].) Under

section 387, subdivision (b), “if the person seeking intervention claims an interest relating to the property or transaction which is the subject of the action and that person is so situated that the disposition of the action may as a practical matter impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by existing parties, the court shall, upon timely application, permit that person to intervene.” “[Cjourts have recognized California Code of Civil Procedure

section 387 should be liberally construed in favor of intervention. [Citation.]” (Lincoln National Life Ins. Co. v. State Bd. of Equalization (1994) 30 Cal.App.4th 1411, 1423 [36 Cal.Rptr.2d 397], fn. omitted.) Nonetheless, “[a] trial court has broad discretion in determining whether to permit intervention. [Citations.]” (US Ecology, Inc. v. State of California (2001) 92 Cal.App.4th 113, 139 [111 Cal.Rptr.2d 689]; see also County of Alameda v.

Carleson, supra, 5 Cal.3d at p. 736, fn. 4.) DISCUSSION Unlike their arguments in the trial court, the Heidts’ contentions on appeal do not separately address mandatory and permissive intervention. Rather, the contentions focus on whether the Heidts have shown a direct and immediate interest in the action, whether their interests are adequately protected by Geffen, and whether their intervention in the action will enlarge the issues.

Defendants (except Access for All, which has not appeared on appeal) argue that none of these elements has been established because the Heidts’ interests are merely speculative and are adequately protected by Geffen, who has identical interests, and participation by the Heidts would unduly enlarge the litigation. The Heidts first address the question of direct and immediate interest. They note that the vertical accessway, which includes a “privacy buffer,” is adjacent to their house and ask: “Why isn’t the Heidts’ interest at least as strong as those in Simpson Redwood Co. v.

State of California (1987) 196 Cal.App.3d 1192 [242 Cal.Rptr. 447], A[.] E. Bell Corp. v. Bell View Oil Synd[.] (1938) 24 Cal.App.2d 587, 604 [76 P.2d 167]; and Highland Development Co. v. City of Los Angeles (1985) 170 Cal.App.3d 169, 179 [215 Cal.Rptr. 881] [disapproved on another point in Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 743, fn. 11 [29 Cal.Rptr.2d 804, 872 P.2d 143]]?” The Heidts also rely on Weiner v. City of Los Angeles (1968) 68 Cal.2d 697 [68 Cal.Rptr. 733, 441 P.2d 293], Their reliance is misplaced. We initially focus on the latter three of the Heidts’ cases. In Weiner v.

City of Los Angeles, supra, 68 Cal.2d at page 706, in two sentences addressing “plaintiffs’ further contentions,” the Supreme Court stated that a residential property owner had properly intervened in litigation between a developer and the city regarding the setback for a house the developer was planning to build next door. In A. E. Bell Corp. v.

Bell View Oil Synd., supra, 24 Cal.App.2d at page 604, which was an action by a landowner against an adjoining landowner alleging that the latter’s drilling operation had encroached on the former’s property rights, a second adjoining landowner who also asserted that her rights had been encroached was an “interested party” who had properly been allowed to intervene. In Highland Development Co. v.

City of Los Angeles, supra, 170 Cal.App.3d at page 179, intervention by an association of owners of single-family residences in a historic district was upheld on appeal in an action in which the developer of an apartment project next to the district was seeking to enforce a permit allowing use of a driveway to the new project that abutted the historic homes. The Highland Development court also concluded that the homeowners’ association should have been included as a party in the developer’s action under rules of compulsory joinder and thus intervention was also supported by the mandatory provisions of

section 387, subdivision (b). (Highland Development, supra, 170 Cal.App.3d at p. 180.) In these three cases, the trial court exercised its discretion to allow intervention and no abuse was found. But there is nothing in the opinions which would suggest that a ruling denying discretionary intervention in this case would constitute an abuse of that discretion. Indeed, as noted by defendants, there are instances in which no abuse of discretion was found in the denial of a motion to intervene by parties whose property was proximate to property that was the subject of the action. (See Alhambra v.

Jacob Bean Realty Co. (1934) 138 Cal.App. 251, 252 [31 P.2d 1052] [in eminent domain action by city for a reservoir project, intervention properly denied to landowner of parcel adjacent to proposed reservoir]; People v. City of Long Beach (1960) 183 Cal.App.2d 271, 275 [6 Cal.Rptr. 658] [allegation that person seeking to intervene “owns houses on lots near the lands in litigation is far short of a claim to any interest in the lands in litigation”].) The fourth of the Heidts’ cited cases is, like the case before us, an appeal from the denial of a request for intervention. In Simpson Redwood Co. v.

State of California, supra, 196 Cal.App.3d 1192, a lumber company (Simpson) filed a complaint against the state, seeking title to certain parcels of redwood forestland that were within Prairie Creek Redwoods State Park (the Park). The land on which the Park was situated had been acquired in stages starting in 1923 by both the state and Save-The-Redwoods League (the League). In 1932, the League donated its acquisitions to the state for inclusion in the Park, which was established in 1933. Surveys conducted years later suggested that parcels within the Park’s marked boundaries might actually belong to Simpson.

The League sought leave to intervene in Simpson’s quiet title action, and its request was denied. {Id. at pp. 1197-1199.) On appeal, the Simpson court held that the League had a sufficient interest to support intervention as a matter of discretion, noting that the League was instrumental in establishing the Park, that members of the League frequently used the Park, and that the League’s “reputation and integrity as a conservation organization will suffer if property which it acquired through donation and targeted for preservation is transferred to private ownership for exploitation.” {Simpson Redwood Co. v.

State of California, supra, 196 Cal.App.3d at p. 1200.) “That [the League] will not suffer direct pecuniary harm, and has failed to establish with absolute certainty the detriment an adverse judgment might cause, does not defeat its right to intervene. It is not necessary that an intervener’s interest ‘ “be such that he will inevitably be affected by the judgment.

It is enough that there be a substantial probability that his interests will be so affected.” ’ [Citations.]” {Id. at p. 1201.) After determining that the effect of delay that would be caused by intervention was not substantial, the Simpson court’s analysis concluded: “A final telling factor in our decision is the conviction that [the League’s] own substantial interests probably cannot be adequately served by the State’s sole participation in the suit, since it here seeks merely to protect its fee interest in the property, which may turn out to be simply pecuniary in nature.

The State might, for example, choose to settle the case for a monetary consideration in exchange for relinquishment of its claims of title to the land. But [the League’s] interest in the litigation—to preserve the property in its natural condition—is singular and indeed unique, and powerfully militates in favor of intervention. [Citation.]” (Simpson Redwood Co. v. State of California, supra, 196 Cal.App.3d at pp. 1203-1204.) “For all of the foregoing reasons,” the Simpson court held that the trial court’s denial of the League’s motion to intervene constituted an abuse of discretion. {Simpson Redwood Co. v.

State of California, supra, 196 Cal.App.3d at p. 1204.) In relying on Simpson, the Heidts focus on language stating that the lack of direct harm to the League did not bar intervention. They also emphasize the language that a “ ‘ “substantial probability” ’ ” of the intervener’s interest being affected is “ ‘ “enough.” ’ ” (Simpson Redwood Co. v. State of California, supra, 196 Cal.App.3d at p. 1201.) But, when viewed in context, these aspects of Simpson are not helpful to the Heidts.

Although the Heidts are proximate to the property under consideration and the League was not, the interest of the League in preserving the character of the Park was based on long-term, intimate involvement with the Park, which it helped to establish for the benefit of the public. The League’s interest was also “direct and immediate” {Truck Ins. Exchange v. Superior Court, supra, 60 Cal.App.4th at p. 346) because if Simpson were to prevail on its claim of ownership, the loss of public parkland would immediately damage the reputation and integrity of the League as a conservation organization.

In contrast, if defendants prevail in this case and the public accessways are opened, there are no immediate consequences because the Heidts can only speculate that members of the public will trespass and litter on the portion of the beach that the Heidts own and thereby ultimately affect the quiet enjoyment of their property.

Indeed, if such speculation provided a basis on which intervention could be required, the Heidts’ neighbors to the west, Geffen’s neighbors to the east, and the neighbors of those neighbors would be in a position to demand intervention because persons using the vertical accessway on Geffen’s property (as well as vertical accessways that apparently exist approximately 1,000 feet to the east and 2,000 feet to the west of the accessway on Geffen’s property) would likely walk along the beach beyond the Heidt and Geffen residences and might trespass and litter on these properties as well.

But the possibility of what some ill-mannered citizens might do cannot create an entitlement for landowners up and down the Malibu coast to interject themselves into every dispute regarding the right of public access to the beach. The Simpson case also speaks to the question of whether the Heidts’ interests are adequately represented by Geffen. The Simpson court determined that the state did not necessarily share the League’s commitment to preservation of the parkland in its natural condition.

Accordingly, the state might be amenable to resolving the litigation for monetary consideration, although the League would not. {Simpson Redwood Co. v. State of California, supra, 196 Cal.App.3d at pp. 1203-1204.) In contrast, the Heidts and Geffen have identical interests in preventing members of the public from accessing areas adjacent to their properties. And the Heidts have not claimed that Geffen has failed to pursue any available legal theory in this regard.

To the contrary, it may readily be gleaned from the record on appeal that Geffen has been an able advocate of his and the Heidts’ position in attempting to prevent public use of Geffen’s easements. The Heidts further assert that they “have a direct interest in enforcing [the ‘privacy buffer’] provision and in how it gets interpreted.” This interest does not support intervention.

Inasmuch as there is nothing in the record to indicate how the provision will be interpreted in protecting the Heidts’ privacy, the Heidts’ interest is once again not immediate because they can only speculate that they will be dissatisfied with the

interpretation. It is also significant that the Heidts’ concern about the privacy buffer is specific to them. Thus, inclusion of this issue would necessarily enlarge the litigation. We are mindful that

section 387 is to be liberally construed to permit intervention. But the decision whether to permit intervention remains a matter of judicial discretion, which is abused only “ ‘whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered.’ ” (Denham v.

Superior Court (1970) 2 Cal.3d 557, 566 [86 Cal.Rptr. 65, 468 P.2d 193].) Here, regardless of what our inclination on the issue might have been were we considering it de novo, a judge who has heard all of the demurrers and motions in this matter and will preside at the mandate hearing has exercised his discretion to deny intervention. Our view of the question, as set forth in this opinion, is that the decision to deny intervention was reasonable. Accordingly, that decision must be upheld on appeal. DISPOSITION The order under review is affirmed. Suzukawa, J., concurred.

Vertical access, which is roughly perpendicular to the shoreline, would enable members of the public to walk from Pacific Coast Highway to the shoreline. Lateral access would allow members of the public to walk along portions of the shoreline. (See La Costa Beach Homeowners’ Assn. v. California Coastal Com. (2002) 101 Cal.App.4th 804, 807 [124 Cal.Rptr.2d 618].) An appeal may be taken from an order denying a motion to intervene. (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736 [97 Cal.Rptr. 385, 488 P.2d 953].) Weiner v. City of Los Angeles, supra, 68 Cal.2d 697, and A. E. Bell Corp. v.

Bell View Oil Synd., supra, 24 Cal.App.2d 587, were decided before

section 387 was amended to include subdivision (b), which first provided for mandatory intervention under appropriate circumstances. (Stats. 1977, ch. 450, § 1, p. 1486.) Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to

article VI,

section 6 of the California Constitution.