Absolutely it is. I guarantee that was not on Khosla's radar as a defense against public access when he acquired the property. And given that almost all of his other arguments were swept away, it's only in that his law firm went for an outlier. "Oh hey, there is a land deed that predates California as a state. We can use that to argue that we're exempt".
Because by no means was this his first rebuttal. It only came out after many other attempts. I'm sure the paralegal who thought of it got a bonus that year.
It can't be "grasping" to make a winning argument about the actual legal issue in the case. What the government is asking for here is for Khosla to keep open an easement to the beach. The most important question is whether, as a matter of property law, any such easement exists.
You have know idea what Khosla was thinking at the time he bought the property. His Guadalupe Hidalgo argument is actually based on 1984 Supreme Court precedent. He could easily have been fully aware of that when he bought the property, hoping to use it privately.
The reason that it wasn't "his first rebuttal" is because of the tactics the State took. The State didn't argue that there wasn't a public easement across the property. It took the abusive view that it could effectively create such an easement by prohibiting Khosla from building a barrier to keep people from crossing the property. That's why the first issue that came up was whether he needed a permit to do that. But attacking the permit requirement first isn't some sort of admission that you don't have a private property right.
Absolutely it is. I guarantee that was not on Khosla's radar as a defense against public access when he acquired the property. And given that almost all of his other arguments were swept away, it's only in that his law firm went for an outlier. "Oh hey, there is a land deed that predates California as a state. We can use that to argue that we're exempt".
Because by no means was this his first rebuttal. It only came out after many other attempts. I'm sure the paralegal who thought of it got a bonus that year.