California Supreme Court per our Constitution-Causation-Withholding of Evidence  

Second Appellate Court

                                 Appellate Court Hearing May 6, 2010 herd in front of
         Justice--Steven Z. Perren---Kenneth R. Yegan---Arthar Gilbert---Paul Coffee
 
 
RE: Statute of Limitations and Prejudicial Error in regards to evidence withheld from discovery by the County of San Luis Obispo Molly Thurmond, Esq. (SBN 104973)Exhibit #579 (Appendix 15) Prejudicial Error or Not? Photo/Statement Documents withheld by County Of San Luis Obispo And Railroad at trial as allowed by Judge Tangeman, as Judge Tangeman Stated "All  Right" County of San Luis Obispo Causation in permits and drainage requirements on private property.  OCSD and Caltrans correcting 2002 drainage complaint problems in 2002/2003 as stated in exhibit #579 Complaint, Caltrans-McKinley Testomony P. 645 and (RA exhibit #1768) changing the Statute of Limitations!  Date of Stabilization! 

 
County photo documents withheld from discovery by County and Rail Road Exhibit # 579 showing flooding problem on east side of State Highway 1 after Caltrans raised State Highway 1 as stated in document provided with County 2002 Drainage Study Questionnaire!  These photos where provided  December 2, 2008 and are not apart of (Appendix 15) showing no Stabilization!

Why would a California Superior Court Judge allow partial evidence, exhibit # 579 to be withheld from discovery as stated in the Court Transcripts by Union Pacific Railroad and Judge Tangeman? “And for the purpose of the exhibits we don’t need the photographs.” The Court States: “All Right”   Judge Tangeman after his August 5, 2010 Inverse Condemnation Decision States on P. 2117-2018 without acknowledging the photographs, regardoing other documents withheld from discovery. "I accept Mr. Belsher's argument these questionnaires where not available at that time.  They weren't available until July 30th."  "no fruther information was forthcoming and now the questionnaires are here I guarantee they are voluminous, I haven't even read through all of them." 

Photo that RailRoad and County of San Luis Obispo-did provide with exhibit # 579 to Judge Tangeman and Court; stating drainage concern---"Pipeline in rail road culvert obstructing flow (Culvert Abuse) 13th Street & Highway 1 Mr. Bill Bookout"  This drainage complaint was fixed by Caltrans and the Oceano Community Service District as stated in RA exhibit # 1768!  (Appendix 15) shows other complaints.

Caltrans photos of drainage problems that Caltrans had created on East Side of State Highway 1. Taken after Oceano Community Drainage Study Questionnaire exhibit # 579 withheld from discovery.  Why would Caltrans Raise State Highway 1 and not account for drainage or ponding?
 
Statute of Limitations with the Oceano Community Service District; drainage changes in December 2002 (RA Exhibit 1768)and prior as seen in photo exhibits below, with the Oceano Community Service Districts use of this drainage system for discharging 2500 gallons of Well water per minute into this undersized culvert blowing in and cementing debris and silt into this culvert year-around!
 
Flooding Photo in 2002 complained about to Caltrans and the Oceano Community Service District. fixed December 20, 2002---Caltrans and OCSD corrected this drainage problem as seen in APPELLANT’S REPLY BRIEF Exhibit # 1768 as stated by OCSD "I had to meet with Bill Bookout and a couple of guys from cal trans about the 6 inch line from well 8 that ends at the culvert by the railroad tracks.  I had Dan saw off the 6 inch pipe and end it in front of the culvert so that there will be no danger of the pipe plugging debris at the entrance to the culvert."  The Next OCSD log of this drainage system is February 9, 2004 before the first flooding of Oceano Nursery.  OCSD States: "Then Joe had him cleaning out the drainage ditch by the railroad track down at 13th and Front Street"

i) Maintenance activities in the drainage Chanel. (Respondent’s Appendix “RA” Exhibit 1768; Reporters Transcript “RT” Vol. 2 Pg 382-400; RT Vol 6 Pg 1506-1507; Exhibit 1446-1447).

ii) Modification of Well #8 discharge pipe by OCSD. (RA Exhibit 1768)

iii) Operation of Well # 8 (RT Vol 2 Pg. 383)

iv) Weed abatement in the drainage Chanel by OCSD. (RA Exhibit 1768; RT Vol 6 Pg 1545)

 

 
The Questions now before the Second Appellate Court Judges regarding Statute of limitations, Date of Stabilization and Causation---Is did OCSD and Caltrans address the complaint in exhibit # 579  when they cut the OCSD pipe, per this complaint and installed concrete bags at the drainage inlet?   Did Caltrans address drainage issues with the raising/overlay of Highway 1 in 2001 as stated in this 2002 Community Drainage & Flood Control Study Questionnaire?  Are Caltrans,County and OCSD drainage actions legal in every County in California? When did the date of Stabilization occur with these three fix's by OCSD and Caltrans?  Was exhibit # 579 withheld from discovery legal and is the withholding of evidence (Appendix 15) by the County of San Luis Obispo and Union Pacific Rail Road a Prejudicial Error?  This Appelate Court Appeal should become California Case Law as every California Resident is affected by Caltrans Actions in regards to their use of this Storm Water Drainage System!
   
Are Caltrans actions of Shoveling and Grading Contaminated Storm Water Debris into this drainage channel since 2002 a cause of the sedimentation found in the Railroads drainage inlet pipe?  viii) Constant shoveling and grading of debris into drainage Chanel by Caltrans. (RT Vol 4 Pgs 916-917, 920; Exhibits 1466-1467, 1513-1519)

Is the Use of the Drainage channel to discharge OCSD Well # 8 Drinking water and sedimetation in this drainage system a cause of the sedimetation found in the Railroads drainage inlet pipe?  Is this Inverse Condemnation? When do Statute of Limitations Apply with the constant daily drainage changes? 

Are the County of San Luis Obispo Permits and drainage requirements issued to Pismo Oceano Vegetable Exchange consistent with California Case Law as permitted by San Luis Obispo County? Exhibits # 1874 and 1875  as stated by County "Extend the pavement berm around the primary pond to keep out run off water from the parking lot" Causation by County in permits 
    
At the Appellate Court hearing the Appellate Court Judges where presented with additional documents withheld from discovery by the County of San Luis Obispo (Appendix 15) of how the drainage worked in 2002 before drainage changes to the State Highway 13th and Paso Robles Streets and the drainage inlet by Caltrans and OCSD(Appendix 15) shows Ex-OCSD Director Larry Baughman's problems that have since been corrected with the constant flooding of State Highway 1, Oceano Nursery 13th and Paso Robles Streets.  "We Own a home at 1519 Fountain Ave which is currently rented to Chuck Bachman. It floods every winter with up to a foot of water in the living room, causing Mr. Bachman to move to a Motel." "Water At The Corner Of 13th/Paso Robles/And Highway 1 Runs (Drains) Under The Railroad Tracks Across Railroad Ave And Collects In The Area Highlighted In Yellow On The Reverse. Something Has To Be Done To Get That Water To The Lagoon Or South To The Ag Creek At The East End Of Airport Runway. The End Of Fountain Ave Floods Every Winter. Larry Baughman"

    Statute of Limitations--Date of Stabilization------P 653 Cross-Examination by Caltrans
The County of San Luis Obipo in their Appellate Court brief mention "McKinley" on P. 19 but does not mention Mr. McKinley's statement below showing Caltrans changing the drainage stabilization of HWY 1. 13th, and Paso Robles Streets--per exhibit 579 photos documents withheld at trial by Union Pacific Rail Road and the County of San Luis Obispo!

Caltrans States (P. 643)Answer:
Yeah, I responded to a communication that our maintenance engineer received from Bill Bookout, that there was ponding, A ponding issue at the corners of 13th and Highway   1 and Paso Robles and Highway 1.  And so it was in response to that communication." Question:  Do      you know approximately which side of the State highway this ponding occurred?  Answer: "It was on the East Side". "                                                                                                                              
Page 645
“We reconstructed the pavement, so we put base and we put asphalt down.”  “I believe we put down half a foot of A.C., I believe.
Question:                                                                                  
(P 653 Cross-Examination by Caltrans-Exhibit photos 579)  "
And when you--It was your understanding that the reason this job -- You were asked to design this job was because the Plaintiff had complained about ponding on the East Side near his property, of State Route 1? Answer: Correct."  Mr. Belsher "
Objection; Leading"  The Court OVERRULED.  Question: (P.658)  "Mr. McKinley, in that grinding crown removal project in 2003, do you recollect removing any portions of 13th Street or Paso Robles Street?"  Answer:  That was - Yeah, we went up to do our conforms, yes."  Question:  Do you knowabout how far up those streets you went, if you can recollect?"  Answer:  "From the plans, I want - it seem to be around 70 --70 feet, I believe,  Seventy feet."  Page 659  "We did adjust crowns on adjust crowns on 13th and Paso."
 
California Case Law---Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848
Union Pacific Rail Road in their Appellate Briefs December 23, 2009 show the problem (Knowledge) on the east side of State Highway 1 in exhibit # 1773 corrected by Caltrans in 2002/2003 as stated (Complaint) in the photos documents that Union Pacific and the County of San Luis Obispo chose to withhold from discovery!  The Oceano Community Service District corrected their (Complaint) in December 2002 as seen in ii) Modification of Well #8 discharge pipe by OCSD. (RA Exhibit 1768)------Union Pacific Rail Road States regarding Exhibit # 579 P. 13 "Appellant had the opportunity to explain his notations at trial"  It is unfortunate that Union Pacific and the County of San Luis Obispo would withhold information from discovery and trial that went with this exhibit! 

The Trial Court did Abuse its discretion by admitting Exhibit 579 withheld from discovery as the trial Court then chose to not allow in the photos and statements that went with Exhibit 579 as stated by Union Pacific and Judge Tangeman  
“And for the purpose of the exhibits we don’t need the photographs.” Judge Tangeman States: “All Right”

The County of San Luis Obispo Brief States:  "The trial court found as a matter of fact that in 2002 plaintiff was clearly aware of the flooding damage to his property, and conditions at the intersections were unchanged in subsequent years." Is wrong as seen in the photo documents showing causation, withheld from discovery by the County of San Luis Obispo and Union Pacific Railroad as stated by Judge Tangeman and Union Pacific Rail Road.  "And for the purpose of the exhibits we don’t need the photographs.” Judge Tangeman States: “All Right”

The County of San Luis Obispo in their Respondents Brief P. 5 does acknowledge that that Judge Tangeman erred in his admiting Exhibit # 579.  "In any event, whatever error the trial court made regarding this solitary document was harmless in light of other admissible evidence demonstrating the Plaintiff became aware of the causes of flooding damage  to his property no later than 2002."  Judge Tangeman in his own words shows that this is not a Solitary Document as stated by Judge Tangeman and Union Pacific Rail Road.  "And for the purpose of the exhibits we don’t need the photographs.” Judge Tangeman States: “All Right”

The County of San Luis Obispo (Terence J. Cassidy, SBN 99189--Thomas L. Riordan, SBN 104827 in their Respondents Brief  Distort Statements/dates and Lie to the Second Appellate Court regarding Statements at Trial!  Exhibit 1768-Dan Sutton--Fred Brebes--Phillip Davis McKinley.

Caltrans Respondent's Brief December 22, 2009 shows on P. 6 that the Oceano Community Service District fixed the drainage problem (Complaint) as stated in Exhibit # 1768.  Caltrans then ignores testimony by Dan Sutton, Fred Brebes and puts in doctered testimony presented to the Appellate Court!

Caltrans on P. 12 of their Respondents Brief mention "Ongoing Public Project" in regards to Lee.----As seen in evidence withheld from Discovey of photos of Caltrans removing debris and then later Raising State Highway 1 shows Caltrans (Ongoing Public Project with no stabilization!) and shows that Caltrans was wrong as stated on P. 14 "The last improvements made to the drainage system where in the 1970's"  P. 14 Caltrans does not mention their prior state Highway 1 drainage changes as seen in the photos in Exhibit 579 withheld from discovery and Trial as stated by Union Pacific Railroad "And for the purpose of the exhibits we don’t need the photographs.” Judge Tangeman States: “All Right”

Caltrans States on P. 19 of their Respondents Brief without talking about the Photos withheld from discovery of their maintence to the Oceano Storm Water Drainage channel State:  "The evidence does not support a holding that the State was obligated to maintain the drainage channel or drainage facilities on private property.'  As stated by Union Pacific Rail Road.  "And for the purpose of the exhibits we don’t need the photographs.” Judge Tangeman States: “All Right”

Caltrans States in their closing "Finally, Appellant cannot plausibly argue that it was prejudiced by the "surprise" of Exhibit  579, in light of the fact that Appellant filled out the document and submitted it to the County in the first place."

Photos withheld from trial and discovery----As stated by Union Pacific Rail Road.  "And for the purpose of the exhibits we don’t need the photographs.” Judge Tangeman States: “All Right”

 
San Luis Obispo New Times Article regarding Appeal May 13-May 20, 2010

Bookout gets his day ... again

BY COLIN RIGLEY

Guarded by two agents in black suits manning a metal detector, Justices Arthur Gilbert, Kenneth R. Yegan, Paul H. Coffee, and Steven Z. Perren heard arguments inside the San Luis Obispo County Board of Supervisors chamber on May 6 for five cases brought before the California 2nd District Court of Appeals.

One of the cases came from Bill Bookout, the former owner of Oceano Nursery, who’s taking on Caltrans, SLO County, Union Pacific Railroad, the Pismo Oceano Vegetable Exchange, and the Oceano Community Services District over flooding that submerges a section of Highway 1 every year. The justices have until Aug. 5 to issue a judgment, but Bookout is already chalking up a win.

“I’m very, very confident,” an ecstatic Bookout told New Times.

His lawsuit was based mainly on his claim that Caltrans crews shovel debris into a drainage ditch, clogging the only outlet for water that funnels into the area.

At the hearing, Bookout’s attorney, John Belsher, went up against a team of four defense attorneys representing the various state and local agencies. Belsher argued that the SLO County Superior Court and Judge Martin Tangeman incorrectly ruled against Bookout after ignoring testimony by the sole flood expert in the case, claiming a statute of limitations had passed. Bookout filed a lawsuit in 2006, claiming that flooding had been ongoing since 2004. Defense attorneys, however, countered that there had been flooding since 2002 and therefore Bookout had missed his chance to file the lawsuit.

The justices were relatively quiet, aside from a few interjections about whether Judge Tangeman had the authority to ignore expert testimony and citing recent case law that found paved roads are in fact drainage channels.

If the court finds in Bookout’s favor, he’ll get another chance at the lawsuit in SLO County Superior Court. So far, with no one to blame, the flooding will likely continue until a responsible party is identified.

Supervisor Katcho Achadjian, whose district includes the flood-prone section of Highway 1, told New Times in a previous interview that he hopes the lawsuit will make someone responsible for the flooding and they will finally address the problem.

If he loses again, Bookout said he’s prepared to go to the Supreme Court.

“This has never been about money,” he said. “This has been about getting the problem fixed and getting my business back and going [again].”

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT, DIVISION SIX
____________________

WILLIAM BOOKOUT, individually

and dba OCEANO NURSERY,

Plaintiffs/Appellants,

vs.

STATE OF CALIFORNIA -

DEPARTMENT OF

TRANSPORTATION; COUNTY

OF SAN LUIS OBISPO; OCEANO

COMMUNITY SERVICES

DISTRICT; and

UNION PACIFIC RAILROAD,

Defendants/Respondents

))))))))))))))))

Second Appellate No. BB214906

Appeal from the Judgment of the

Superior Court of San Luis Obispo

County Case No. CV 060384

Hon. Martin J. Tangeman, Presiding

Phase One - Inverse Condemnation

Liability

Hon. Teresa Estrada-Mullaney, Presiding

Phase Two
____________________
APPELLANT’S REPLY BRIEF
____________________

John W. Belsher, #103088

Gregory A. Connell, # 233228

BELSHER & BECKER

412 Marsh Street

San Luis Obispo, CA 93401

(805) 542-9900

slolaw@belsherandbecker.com

Attorneys for Plaintiff and Appellant

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT, DIVISION SIX
____________________

WILLIAM BOOKOUT, individually

and dba OCEANO NURSERY,

Plaintiffs/Appellants,

vs.

STATE OF CALIFORNIA -

DEPARTMENT OF

TRANSPORTATION; COUNTY

OF SAN LUIS OBISPO; OCEANO

COMMUNITY SERVICES

DISTRICT; and

UNION PACIFIC RAILROAD,

Defendants/Respondents

))))))))))))))))

Second Appellate No. BB214906

Appeal from the Judgment of the

Superior Court of San Luis Obispo

County Case No. CV 060384

Hon. Martin J. Tangeman, Presiding

Phase One - Inverse Condemnation

Liability

Hon. Teresa Estrada-Mullaney, Presiding

Phase Two
____________________

 

 

APPELLANT’S REPLY BRIEF

 

 

 

____________________

John W. Belsher, #103088

Gregory A. Connell, # 233228

BELSHER & BECKER

412 Marsh Street

San Luis Obispo, California 93401

Telephone: (805) 542-9900

slolaw@belsherandbecker.com

Attorneys for Plaintiff/Appellant

i

TABLE OF CONTENTS

PAGE

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. LEGAL DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. A Three-Year Statute of Limitation is not a Complete Defense to this

Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. Conditions in the Watershed are not Static which Entitles Appellant to a

Delayed Accrual Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

C. The Flooding of Appellant’s Property is a Continuous Nuisance . . . . . . . . 1

D. Respondent’s Subversion of the Civil Discovery Act has Prejudiced

Appellant’s Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

E. Appellant did not Ignore any Contrary Evidence . . . . . . . . . . . . . . . . . . . . 1

 

 

III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

 

 

CERTIFICATE OF WORD COUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

PROOF OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ii

TABLE OF AUTHORITIES

 

 

Cases Page

Akins v State

(1998) 61 Cal.App.4th 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Arreola v. County of Monterey

(2002) 99 Cal.App.4th 722. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

Belair v. Riverside County Flood Control District

(1988) 47 Cal.3d 550 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Lee v. Los Angeles County Metropolitan Transportation Authority

(2003) 107 Cal.App.4th 848 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Lyles v. State of California

(2007) 153 Cal.App.4th 281 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Pacific Bell v. City of San Diego

(2000) 81 Cal.App.4th 596 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

Skoumbas v City of Orinda

(2008) 165 Cal.App.4th 783 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Statutes

Code of Civil Procedure § 338(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1

I.

INTRODUCTION

Appellant presents this reply to Respondents Oceano Community Services District,

County of San Luis Obispo, Union Pacific Railroad, and State of California - Department of

Transportation’s Brief.

II.

LEGAL DISCUSSION

A. A Three-Year Statute of Limitation is not a Complete Defense to this Action.

Respondents argue that the three-year statute of limitation found in Code of Civil

Procedure 338(j) is a complete defense to this action. Appellant has argued in it opening

brief that a five-year statute of limitation for a permanent continuing taking should apply

since these Defendants have created a drainage basin on Appellant’s property during any

substantial rainstorm. See Appellant’s opening brief, pgs 8-10.

Assuming, arguendo, that Appellant is held subject to a three-year statute of

limitation, the conditions at the Subject Property warrant successive three-year time periods

after each flood, since the conditions change every year and his property and inventory were

damaged differently during each flood. A continuous and repeated course of conduct causing

damages to one’s property which have not stabilized does not begin the accrual of a cause

of action. Lee v Los Angels County Metropolitan Transportation Authority (2003) 107

Cal.App.4th 848, 858. It is not argued that the culvert was still under construction when

2

Appellant’s property first began flooding, but that these Defendants continued to assert

control, use, perform haphazard maintenance, and alter the conditions of the watershed every

year which destabilizes the conditions at the drainage facility and causes the floods.

Respondents and the trial court cite to Lyles v State of California (2007) 153

Cal.App.4th 281, in support of their position that a three-year statute of limitation completely

bars Appellant’s action. Lyles v. State of California dealt with a one-time flood allegedly

caused by an inadequate drainage system surrounding Highway 1. This case did not address

how to apply the three-year statute of limitation when there are successive, periodic floods

every year. In Appellant’s situation, each flood creates a new statute of limitation since the

type of haphazard maintenance, severity of rain storm, upstream watershed conditions,

OCSD Well #8 operations, and the level of inlet storage capacity are different but existing

upon each flood.

B. Conditions in the Watershed are not Static which Entitles Appellant to a Delayed

Accrual Date

There have been several actions and modifications by Respondents to the drainage

Chanel and watershed which are a cause of the flooding of Appellant’s property. Judge

Tangeman held that date of stabilization approach does not apply since the last improvements

to the drainage system were completed in the late 1970's and the flooding was consistent and

static for several years prior to the date the Plaintiff purchased his property (Appendix #13).

Below is a summary of the actions by Respondents which have changed the drainage

3

conditions relative to Appellant’s property since the construction of the junction box in the

late 1970's:

i) Maintenance activities in the drainage Chanel. (Respondent’s Appendix

“RA” Exhibit 1768; Reporters Transcript “RT” Vol. 2 Pg 382-400; RT

Vol 6 Pg 1506-1507; Exhibit 1446-1447).

ii) Modification of Well #8 discharge pipe by OCSD. (RA Exhibit 1768)

iii) Operation of Well # 8 (RT Vol 2 Pg. 383)

iv) Weed abatement in the drainage Chanel by OCSD. (RA Exhibit 1768;

RT Vol 6 Pg 1545)

v) Removal of retaining wall by Caltrans (RT Vol 3 Pg 642-643).

vi) Alteration of Highway One in the year 2002/2003 by Caltrans. (RT Vol

3 Pg 645-646)

vii) Alteration of Highway One in the year 2005/2006 by Caltrans (RT Vol

3 Pg 645)

viii) Constant shoveling and grading of debris into drainage Chanel by

Caltrans. (RT Vol 4 Pgs 916-917, 920; Exhibits 1466-1467, 1513-1519)

ix) Accumulation of sedimentary debris in drainage Chanel which reduces

storage capacity. (RT Vol. 4 Pg 920; RT Vol 6 Pg 1534; RT Vol. 6 Pgs.

1546-1551)

x) Increase in impervious surfaces in the watershed (RT Vol.6 Pgs 1572).

4

These activities have slowly destabilized any static condition in the watershed which

may have existed after the junction box modification in the late 1970's. Although there has

been conflicting evidence of when Appellant’s property first began flooding, these changes

in the watershed afford Appellant a delayed accrual date until the conditions remain

unchanged, which to date has not happened. If conditions have been static since the late

1970's as held by Judge Tangeman, why did it take 30 years for Plaintiff’s property to begin

flooding?

C. The Flooding of Appellant’s Property is a Continuous Nuisance

One of the factors to determine if a nuisance is permanent or continuous is the ability

to remedy the situation. Baker v. Burbank-Glendale-Pasadena Airport (1985) 29 Cal.3d 862,

869. As Appellant’s expert testified, the construction of a detention basin near the inlet of

the culvert would prevent Highway One and Appellant’s property from flooding. (RT Vol.

6 Pgs.1583-1584). Also, Respondent County of San Luis Obispo and the State of California

Department of Transportation designed a fix to the situation in 1987 for $43,295. (RA

Exhibit 1790). The situation in this case is not a permanent nuisance, and Judge Estrada-

Mullaney’s ruling preventing Appellant to proceed on his nuisance and trespass causes of

action in the second phase were in error. Under this rationale, if the Respondents put a lid

on the culvert today to prevent all drainage from entering it, Appellant would still not have

a cause of action for nuisance, even though this new act creates more flooding and more

damage.

5

D. Respondent’s Subversion of the Civil Discovery Act has Prejudiced Appellant’s

Case

Respondents have argued that the admittance of Exhibit 579 was not prejudicial and

was proper. The Civil Discovery Act requires all parties to make reasonable attempts to

respond to discovery in a timely manner and reasonable and diligent attempt to locate

requested documents. Exhibit 579 was never produced during discovery, and should have

been withheld from the trial after Appellant’s proper objection. Although admittedly

authored by Appellant, he did not remember completing the questionnaire and its use during

trial was a complete surprise to Appellant. (RT Vol.5 Pgs. 1219-1221). This error goes

beyond the mere non-disclosure of one document, all the responses to the questionnaires

presented to the Respondent County of San Luis Obispo from the public were withheld from

production. (Appendix # 14, 15). These additional withheld questionnaires from other

residents in the community contain possible new facts and new witness which could have

substantiated Appellant’s assertions regarding the date of accrual and the conflicting

testimony regarding the beginning of the flooding of his property. The admittance of Exhibit

579, and the discovery of additional facts and possible new witnesses substantiate the

prejudicial error and the necessity of a new trial.

E. Appellant did not Ignore any Contrary Evidence

Both Respondent County of San Luis Obispo and State of California - Department of

Transportation argue that Appellant has waived any argument concerning the sufficiency of

6

the evidence by failing to acknowledge both favorable and unfavorable evidence in its

Appendix. Appellant disagrees with this assertion, and submits it carefully considered all the

evidence presented at trial, and introduced in the appendix and brief only that evidence which

relates to the issues on appeal. While great care must be taken to furnish an adequate record

on appeal, it is also important to avoid including unnecessary material in the record. If any

party has required the inclusion of “any matter not reasonably material to the appeal's

determination,” the appellate court can sanction the offending attorney and/or party by

withholding or assessing costs or imposing any other penalties deemed appropriate under the

circumstances. CRC 8.276(a)(2); Garcia v. Lucindo (1961) 191 Cal.App.2d 303, 308.

Balancing these duties, Appellant is not sure which evidence it did not included in its

Appendix which he should have reasonably anticipated would be relied upon by

Respondents. In any event, Respondents properly submitted their supplemental appendix

with additional reference to Exhibits entered at trial.

///

///

///

///

///

///

///

7

 

 

 

 

III.

CONCLUSION

 

 

For the foregoing reasons and those contained in Appellant’s Opening Brief,

Appellant respectfully requests that this Court reverse Judge Tangeman’s ruling for Judgment

on the First Phase of the trial for Inverse Condemnation Liability, reverse Judge Estrada-

Mullaney’s ruling for Judgment on the Pleadings for the Second Phase of the trial, and order

a re-trial of this case on the issues presented therein.

Dated: January 26, 2010 BELSHER & BECKER

By: ______________________

Gregory A. Connell

Attorneys for Appellant WILLIAM

BOOKOUT dba OCEANO

NURSERY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT, DIVISION SIX
____________________

WILLIAM BOOKOUT, individually

and dba OCEANO NURSERY,

Plaintiffs/Appellants,

vs.

STATE OF CALIFORNIA -

DEPARTMENT OF

TRANSPORTATION; COUNTY

OF SAN LUIS OBISPO; OCEANO

COMMUNITY SERVICES

DISTRICT; and

UNION PACIFIC RAILROAD,

Defendants/Respondents

))))))))))))))))

Second Appellate No. BB214906

Appeal from the Judgment of the

Superior Court of San Luis Obispo

County Case No. CV 060384

Hon. Martin J. Tangeman, Presiding

Phase One - Inverse Condemnation

Liability

Hon. Teresa Estrada-Mullaney, Presiding

Phase Two
___________________

 

 

APPELLANT’S REPLY BRIEF
____________________

John W. Belsher, #103088

Gregory A. Connell, # 233228

BELSHER & BECKER

412 Marsh Street

San Luis Obispo, CA 93401

(805) 542-9900

slolaw@belsherandbecker.com

Attorneys for Plaintiff and Appellant

---------------------------------------------------------Appellant's Opening Brief---------------------

TABLE OF CONTENTS

PAGE

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

 

 

II. PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III. STATEMENT OF APPEALABILTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

IV. STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

V. SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

VI. LEGAL DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

VII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

CERTIFICATE OF WORD COUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

PROOF OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

ii

TABLE OF AUTHORITIES

 

 

Page

Cases

 

 

Aaron v. City of Los Angeles (1974) 40 Cal.App.3d 471, 491 . . . . . . . . . . . . . . . . 11, 12

Amador Valley Investors v. City of Livermore (1974) 43 Cal.App.3d 483, 489 . . . . . . 11

Andrew Jergens Co. v. City of Los Angeles (1951) 103 Cal.App.2d 232, 229 . . . . . . . 27

Arreola v. County of Monterey (2002) 99 Cal.App.4th 722,

761-763. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 16, 17, 18

Baker v. Burbank Airport (1985) 39 Cal.3d 862, 867 . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Baker v. Burbank-Glendale-Pasadena Airport Authority (1985)

29 Cal.3d 862, 869 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Bauer v. County of Ventura (1955) 45 Cal.2d 276, 284-285 . . . . . . . . . . . . . . . . . . . . . 15

Blau v. City of Los Angeles (1973) 32 Cal.App.3d 77, 83-85 . . . . . . . . . . . . . . . . . . . . 15

Breidert v. Southern Pacific Company (1964) 61 Cal.2d 659 . . . . . . . . . . . . . . . . . 20, 21

Bunch v. Coachella Valley Water Dist. (1997) 15 Cal.4th 432 . . . . . . . . . . . . . . . . . . . 23

California State Automobile Assn. v City of Palo Alto (2006)

138 Cal.App.4th 474, 483 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 16

Canto v. Pacific Gas and Electric Company (1987) 189 Cal.App.3d. 160 . . . . . . . . . . . 19

Charles C. Chapman Bldg. Co. v. California Mart (1969)

2 Cal.App.3d 846, 853 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 266 . . . . . . . . . . . . 21

Deeter v. Angus (1986) 179 Cal.App.3d 241, 255 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

iii

Frustuck v. Fairfax (1963) 212 Cal.App.2d 345, 374 . . . . . . . . . . . . . . . . . . . . . . 9, 10, 24

Joseph v. Drew (1950) 36 Cal.2d 575, 579 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Lee v. Los Angeles County Metropolitan Transportation Authority

(2003) 107 Cal.App.4th 848 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33

Los Angeles County Metropolitan Transportation Authority v. Continental

Development Corp. (1997) 16 Cal.4th 694 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1147 . . . . . . . . . . 31, 32

Marin v. City of San Rafael (1980) 111 Cal.App.3d 591, 596 . . . . . . . . . . . . . . . . . 23, 24

McKinney v Ruderman (1962) 203 Cal.App.2d 109, 115 . . . . . . . . . . . . . . . . . . . . . . . 24

McMahan’s of Santa Monica v. City of Santa Monica (1983)

146 Cal.App.3d 683, 697-698 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 21

Newman v. City of Alhambra (1918) 179 Cal. 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596 . . . . . . . . . . . 16, 17, 18, 19

Paterno v. State (2003) 113 Cal.App.4th 998, 1029 . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Pate v. Channel Lumber Co. (1997) 51 Cal.App.4th 1447, 1455 . . . . . . . . . . . . . . . . . . 34

Phillips v. City of Pasadena (1945) 27 Cal.2d 104, 107-108 . . . . . . . . . . . . . . . . . . . . 31

Pierpont Inn, Inc. v. State of California (1969) 70 Cal.2d 282, 291 . . . . . . . . . . . . . . . . 11

San Diego Metropolitan Transit Develop. Bd. v. Handlery Hotel, Inc. (1999)

73 Cal.App.4th 517, 528 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28

Sheffet v. County of Los Angeles (1970) 3 Cal.App.3rd 720, 735 . . . . . . . . . . . . . . . . 23

Smith v. Los Angels (1944) 66 Cal.App.2d 562, 586 . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Spaulding v. Cameron (1952) 38 Cal.2d 265, 268 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

iv

Steiger v. City of San Diego (1958) 163 Cal.App.2d 110 . . . . . . . . . . . . . . . . . . . . . . . . 24

Stoney Creek Orchards v. State (1970) 12 Cal.App.3d 903, 907 . . . . . . . . . . . . . . . . . . 13

Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1547-1548 . . . . . . . . . . . . . . . . . . . 34

 

 

Statutes

Code of Civil Procedure § 338(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Code of Civil Procedure § 338 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Code of Civil Procedure § 631.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28

Cal. Const., Art. I § 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Other Authorities

California Procedure, § 427 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CACI 400, 1100, 2000, and 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

CACI 431 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Restatement (Second) of Torts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Van Alstyne, Condemnation Practice in California (2007) § 16.4 . . . . . . . . . . . . . 10, 18

1

I.

INTRODUCTION

This appeal is from two rulings on two phases of a bifurcated trial. The first ruling

Petitioner is appealing is the ruling on Defendants’ Motion for Directed Verdict for the first

phase of the trial which dealt with the issue of inverse condemnation liability only. The

second ruling Petitioner is appealing is the ruling on Defendants’ Motion for Judgment on

the Pleadings which barred Plaintiff from moving forward on his remaining causes of action

in the second phase of the trial. These judgments have been made in error and are not

supported by the substantial evidence in the record or California law. These Defendants have

successfully used the erroneous first phase ruling to prevent Plaintiff from a trial on the

merits of this case, which has denied him his right to petition his grievances regarding the

flooding of his property in Oceano, California.

II.

PROCEDURAL HISTORY

The First Amended Complaint was filed on May 24, 2007 (Appendix #1). The case

was bifurcated by Honorable Judge Martin J. Tangeman during the pre-trial readiness

conference. The first phase for inverse condemnation liability began on July 9, 2008. After

Plaintiff’s case in chief, all remaining Defendants orally moved for a non-suit and/or directed

verdict (Reporter’s Transcript (“RT”) Vol. 6. Pgs. 1624 - 1650), which was granted and

2

entered into the record on August 5, 2008 (Appendix #13). Plaintiff filed a motion for

reconsideration and new trial on August 14, 2008, which was denied (Appendix #14).

The second phase of the trial on Plaintiff’s remaining causes of action, i.e. Dangerous

Condition of Public Property, Nuisance, Trespass, Negligence, and Injunctive Relief, was set

for trial. Defendants then filed, or joined in, a Motion for Judgment on the Pleadings based

on the ruling on the first phase of the trial (Appendix #17 - 23). These motions were granted

on January 5, 2009 (Appendix #24), and notice of this ruling was mailed to Plaintiff on

February 4, 2009 (Appendix #25).

III.

STATEMENT OF APPEALABILTY

Judge Tangeman issued his ruling for directed verdict on the first phase for inverse

condemnation liability only on August 5, 2008 (Appendix #13). The Honorable Judge Teresa

Estrada-Mullaney issued her ruling on the Defendants’ Motion for Judgment on the

Pleadings on January 5, 2009 (Appendix #24), and notice of this second ruling on the second

phase was mailed by opposing counsel on February 4, 2009 (Appendix #25). These

judgments became final and appealable pursuant to Code of Civil Procedure section 904.1

on February 4, 2009. Plaintiff filed his Notice of Appeal on March 17, 2009 (Appendix #26).

///

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IV.

STATEMENT OF FACTS

Plaintiff bought property in 2000 on Highway One at the intersection of Paso Robles

Street and 13 Street in Oceano (Exhibit th 1449; RT Vol. 1 Pg. 35). He had no knowledge of

any potential for flooding at the property when it was purchased (RT Vol. 1 Pgs. 35-36). He

invested substantially in creating and building up the Oceano Nursery on this property

(Exhibits 1002, 1004-1009; RT Vol. 1 Pg. 40). Plaintiff managed to build a solid reputation

in the Oceano community, and his nursery and gift shop were well-known and loved for its

unique inventory (Exhibit 1003).

The Oceano Nursery opened in July of 2000 (RT Vol. 1 Pg. 35). The nursery operated

without interruption until it was first flooded, on February 25, 2004 (Exhibits 1010-1055; RT

Vol. 1 Pg. 41). The nursery flooded twelve (12) times prior to trial, with the last flood on

February 3, 2008 (Exhibit 1867; RT Vol. 5 Pgs. 1210-1211). This periodical flooding ruined

the Oceano Nursery and its reputation, and the nursery lost its loyal clientele. The Oceano

Nursery finally closed its doors on January 13, 2008 (Exhibit 1867).

The causes of these floods are complex and diversified. Plaintiff filed his complaint

against the Pismo Oceano Vegetable Exchange (“POVE”), CalTrans, County of San Luis

Obispo, Union Pacific Railroad, and the Oceano Community Services District, alleging that

each party bears some responsibility for the flooding of Plaintiff’s property. A settlement

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was achieved with POVE and approved by the Court on July 14, 2008 (RT Vol. 4 Pgs. 962 -

963).

Once a flood pool has formed in front of Plaintiff’s property due to blockages in the

24" culvert going under the Railroad (and its inadequate size), and the flood pool blocks

Highway One adjacent to Plaintiff’s property, stormwater from County property, OCSD

property, CalTrans Property, and Railroad property continue to simultaneously flood

Plaintiff’s property (RT Vol. 6 Pgs. 1606 - 1607). In essence, Defendants use Plaintiff’s

property as a retention basin to cover the inadequacies in their own surface water discharge

systems and practices (RT Vol. 6 Pgs. 1606 - 1607).

 

 

A. Union Pacific Railroad Company

Union Pacific Railroad Company is the owner of a 24" surface water drainage culvert

which runs under their railroad and a drainage channel which leads to the culvert (RT Vol.

4 Pgs. 968 - 973; Exhibits 1268, 1740, 1743 and 1869). The railroad bed acts as a dam

across the former location of drainage in this watershed (RT Vol. 4 Pg. 1246). During small

and heavy rainstorms, this culvert and drainage channel reach their capacity in a relatively

short amount of time and water begins to back up all the way across Highway One to

Plaintiff’s property (RT Vol. 6 Pgs. 1601-1603). During certain flood events, Plaintiff’s

property has been under as much as sixteen to eighteen inches of water (RT Vol. 1 Pgs. 64-

65). The culvert and channel also accumulate debris from the surrounding area which

reduces its capacity (RT Vol. 5 Pg. 1269).

5

The Union Pacific Railroad leased, then sold, the real property on the outfall side of

the culvert to POVE (RT Vol. 2 Pg. 423; RT Vol. 3 Pg. 628). POVE’s involvement is

important in understanding the history of the drainage system in this watershed. As early as

1973, localized flooding conditions on Highway One and 13th Street were reported by

CalTrans (Exhibit 1772; Exhibit 1773). Nonetheless, in 1977, while a tenant of Union

Pacific Railroad and pursuant to permits issued by San Luis Obispo County, POVE altered

the discharge of the culvert by constructing a subsurface junction box, which collects the

storm water drainage from the drainage channel and culvert running from the opposite side

of the railroad, then diverts it 90 degrees over 200 feet through a second 24" pipe to a small

retention pond on POVE’s property (RT Vol. 2 Pgs. 414 - 416; RT Vol. 5 Pg. 1255). This

junction box acts as a receptacle for debris and reduces the capacity of the system,

particularly in the absence of a drainage system maintenance plan (RT Vol. 5 Pg. 1269).

 

 

B. Oceano Community Services District

The Oceano Community Services District owns property in the watershed which

drains to this culvert (RT Vol. 5 Pg. 1245, Exhibit 1315). It uses the drainage culvert to

discharge water from its Water Well #8 (RT Vol. 2 Pgs. 385 - 386). This well discharges at

2500 gallons per minute directly into the undersized culvert blowing in and cementing debris

and silt into the culvert year-around (RT Vol. 2 Pg. 383; RT Vol. 4 Pgs. 1268 - 1269, 1272).

Importantly, this pipe traps debris flowing in the area in front of the 24" pipe inlet,

contributing to blockages in the pipe and junction box outfall (RT Vol. 5 Pg. 1272). OCSD

6

has performed haphazard maintenance of the drainage channel and culvert at certain times

(RT Vol. 2 Pgs. 390-393). These actions have implicated OCSD in this lawsuit, and have

been identified as a substantial cause of the floods (RT Vol. 6 Pg. 1568; Exhibit 1830).

OCSD claims it has no plan whatsoever for maintenance of the channel and culvert it impacts

and uses (RT Vol. 2 Pgs. 390-393).

C. CalTrans

CalTrans is the owner and responsible agency for Highway One (RT Vol. 4 Pg. 910;

Exhibit 1449). CalTrans owns the first four or so feet of the drainage channel as part of its

right-a-way (RT Vol. 4 Pg. 911). It uses the channel and the culvert to drain surface water

from Highway One (RT Vol. 4 Pgs. 921-211, 925; Exhibit 1466). As owner of the right-ofway

which encroaches some four feet into the drainage channel it has exerted some control

of the drainage channel at certain times, and performed haphazard maintenance (Exhibit

1467; RT Vol. 4 Pgs. 911-927; RT Vol. 6 Pgs. 1563-1564). CalTrans impervious surface

(Highway One) is a major contribution of run-off which might otherwise percolate into the

ground, representing 7.3% of the area draining to the culvert. (RT Vol. 6, Pg. 1520).

D. County of San Luis Obispo

The County of San Luis Obispo is the responsible agency for drainage in Oceano (RT

Vol. 2 Pg. 304; Exhibit 1558). It has created a substandard street, curb, gutter, and sidewalk

drainage system in the watershed which drains to the culvert (RT Vol. 2 Pgs. 313-314). This

system funnels the majority of the surface water which floods Plaintiff’s property to the

7

impacted area (RT Vol. 6 Pg. 1528). County Public Works Official, Glenn Priddy, testified

these improvements were part of the County’s drainage system (RT Vol. 2 Pgs. 366-367).

By issuance of building permits and street improvements the County is responsible for the

urbanization of the watershed which reduces the absorption of stormwater and has increased

runoff to the flood location (RT Vol. 6 Pgs. 1528-1529). The County issued building permits

for the POVE junction box and pond, listing various conditions and specifications for the

private work. (RT Vol. 5 Pgs. 1257-1264).

V.

SUMMARY OF ARGUMENT

A. The Trial Court Applied the Incorrect Statute of Limitations for Inverse

Condemnation during the First Phase of the Trial

B. The Trial Court Failed to Use the Date of Stabilization Approach to Determine

the Date of Accrual

C. The Trial Court Failed to Use the Correct Inverse Condemnation Liability

Standards

1. Strict Liability, not the Rule of Reasonableness, Applies in this

Litigation

2. Union Pacific Railroad Company Liability

3. County of San Luis Obispo Liability

4. OCSD Liability

5. CalTrans Liability

D. The Directed Judgment Pursuant to Code of Civil Procedure § 631.8 is Not

Substantiated by the Record

8

E. The Granting of Defendants' Motion for Judgment on the Pleadings Deprived

Plaintiff of his Right of Petition

1. Plaintiff’s Remaining Causes of Action Differ from Inverse

Condemnation

2. The Flooding of Plaintiff’s Property is a Continuing Nuisance

F. The Trial Court Improperly Allowed Evidence into the Record During the First

Phase which was not Produced During Discovery, Substantially Prejudicing

Plaintiff.

VI.

LEGAL DISCUSSION

A. The Trial Court Applied the Incorrect Statute of Limitations For Inverse

Condemnation During the First Phase of the Trial

Judge Tangeman ruled that Code of Civil Procedure § 338(j) governs the inverse

claim, setting a three year statute of limitations (Appendix #13). Plaintiff alleged, and

supported with testimony at trial that his cause of action did not begin to accrue until the

flooding condition had substantially interfered with his use and enjoyment of his property in

2004, leaving his lawsuit filing well within the three year statute for inverse condemnation

(Appendix #9; RT Vol. 1 Pgs. 41-44; RT Vol. 5 Pgs. 1218-1228). (Exhibits 1011, 1022-

1024). Plaintiff disputes that there is substantial evidence establishing an earlier date (and

in particular, objects to the last minute introduction of surprise Exhibit 579 relied upon by

the Court in making its determination). Even assuming, arguendo there is evidence that

9

Plaintiff’s property had first flooded in 2002 from the conditions alleged in the First

Amended Complaint, a five-year statute of limitation applies for inverse condemnation

where, as here, repeated occupation of property has resulted in a total taking of Plaintiff’s

property.

Plaintiff filed this lawsuit on May 2, 2006, approximately two years and two months

from the first time he testified that his property flooded and damaged his property, on

February 25, 2004 (RT Vol. 1 Pgs. 41-44). The Trial Court disagreed, relying on Plaintiff’s

comments on a questionnaire submitted to the County of San Luis Obispo as “evidence” that

his property flooded in 2002, and therefore, his current action is barred by a three-year statute

of limitation (RT Vol. 5 Pgs. 1218-1228; Exhibit 579). In an inverse condemnation action,

if property damage is alleged by a single trespass event, the three-year limitation applies, but

if a property taking has been alleged from a continual and permanent trespass, a five-year

limitation on an action to recover applies. Smith v. Los Angeles (1944) 66 Cal.App.2d 562,

586; Frustuck v. Fairfax (1963) 212 Cal.App.2d 345, 374. “When an act of trespass amounts

to a taking or damaging for a public use it is more than a mere trespass on an interest in land,

but it takes from the owner of the land something necessary and essential to the use and

enjoyment of the property and thus results in the taking away of a valuable property right.”

Frustuck at 374.

In Frustuck, the City of Fairfax was found liable in inverse condemnation for its

failure to appreciate the probability that the drainage system which drained to the plaintiff’s

10

property from a subdivision approved by the City, functioning as deliberately conceived, and

as altered and maintained by the diversion of waters from their normal channels, would result

in damage to private property. Id. at 362. The Court held that the five-year statute of

limitation applied since the defendant in that action had taken the plaintiff’s property for

public use (Id. at 374). Similarly, in the case at hand, the flooding of plaintiff’s property goes

beyond an isolated trespass and has ripened into a taking of his property for a public use, as

evidenced by the twelve floods to the time of trial and the expected continual flooding during

rainstorms in Oceano.

Code of Civil Procedure § 338 codified the three-year statute set forth in Smith v. Los

Angeles (1944) 66 Cal.App.2d 562, dealing with actions for “physical damage to private

party.” California Procedure, § 427. The statute does not abrogate the five-year statute for

a “taking” of private property for a public use, and the five-year statute of limitation should

apply. See e.g. Van Alstyne, Condemnation Practice in California (2007) § 16.4.

B. The Trial Court Failed to Use the Date of Stabilization Approach to Determine

the Date of Accrual

Even assuming the five-year statute of limitations does not apply, Plaintiff’s cause of

action for inverse condemnation is not time barred since the circumstances surrounding the

flooding had not “stabilized” until 2004, and Plaintiff had not recognized the potential for

damage to his property until the first flood on February 25, 2004. He did not have a cause

of action until his property had actually been damaged, and the generalized neighborhood

11

flooding concerns expressed in Exhibit 579 did not ripen his claim in 2002, as held by Judge

Tangeman in his ruling.

Further, the conditions in the watershed continue to change annually. The

development without drainage mitigation upstream, and the haphazard maintenance of all

Defendants continues to de-stabilize the watershed.

The point of accrual must be carefully determined by the court for a cause of action

of a continuing nature, and the court must consider the level of interference with a property

interest when making this determination. Amador Valley Investors v. City of Livermore

(1974) 43 Cal.App.3d 483, 489; Aaron v. City of Los Angeles (1974) 40 Cal.App.3d 471,

491. In fixing the date of accrual of a cause of action for inverse condemnation, Courts have

generally used the “date of stabilization” approach. Pierpont Inn, Inc. v. State of California

(1969) 70 Cal.2d 282, 291, disapproved on other grounds by Los Angeles County

Metropolitan Transportation Authority v. Continental Development Corp. (1997) 16 Cal.4th

694. The date of stabilization method measures the date of the governmental “taking” as of

the point in time when the damaging activity has reached a level which substantially

interferes with the owner’s use and enjoyment of his property. Aaron at 492. Plaintiff did

not suffer any damages from any flooding before 2004 from the culvert and drainage

channel, such as would place this action under a three-year statute of limitation (RT Vol. 1

Pgs. 41-44). Plaintiff did not suffer any damages from the flooding backing up from the

culvert and drainage channel in any years except 2004, 2005, 2006, 2007, 2008, (and on

12

every storm event thereafter) (RT Vol. 5 Pgs. 1219-1225). Plaintiff’s complaint, and the

evidence presented, demonstrated that this case is a taking of private property for public use

as a detention basin for surface water drainage, which did not accrue until 2004.

The Defendants and Judge Tangeman relied upon Exhibit 579 in arguing that

Plaintiff’s property flooded prior to 2004 and that he had suffered damages prior to 2004 (RT

Vol. 5 Pgs. 1218-1228). However, Plaintiff testified in a declaration that he suffered from

“nuisance” water trapped on the east side of Highway One prior to a crown removal by

CalTrans in 2003 (Appendix #9). Spray from this nuisance water affected his inventory

stacked along Highway One (Appendix #9). This was substantiated by the testimony of

CalTrans employees, David Fry (RT Vol. 4 Pgs. 926-927) and Kelly McKinley (RT Vol. 3

Pgs. 643-644). This limited incident did not trigger the statute for the matters alleged in the

First Amended Complain

C. The Trial Court Failed to Use the Correct Inverse Condemnation Liability

Standards

 

 

The California Constitution requires a public entity to pay “just compensation” to

anyone who owns or holds a valuable interest in real or personal property if that interest is

taken or damaged as a result of a public use. Cal. Const., Art. I § 19. Plaintiff must show

that the Defendants planned, approved, constructed, or operated a public project, or was

otherwise engaged (“substantially participated”) in some activity for public use or benefit.

Stoney Creek Orchards v. State (1970) 12 Cal.App.3d 903, 907, emphasis added. As long

13

as there is substantial participation, it is immaterial which public agency has title to the lands

or has responsibility for operation of the project. Stoney at 907. The right to exercise

eminent domain is not required in order to hold a public entity liable for inverse

condemnation. Baker v. Burbank Airport (1985) 39 Cal.3d 862, 867. The liability that

various entities might face in the event of a flood depends on the role that they have played

in the flooded region and the public uses which have caused the taking. In assessing liability

as between various agencies, courts consider which entity has sufficient control and authority

to prevent, remedy, or guard against known danger. Arreola v. County of Monterey (2002)

99 Cal.App.4th 722, 761-763. Each Defendant in this litigation has substantially participated

in some form, shape, or manner in a public use which has taken Plaintiff’s property.

Plaintiff’s expert, Keith Crowe, identified six substantial factors which have caused

this flooding condition to exist (Exhibit 1830; RT Vol. 5 Pg. 1245). These factors are:

(1) Blocking the natural drainage way with a pipe too small for the conditions,

(2) OCSD Well #8 Discharge Pipe adding silt and debris during normal well

operation,

(3) Pipe capacity compromised by poorly designed extension,

(4) Upstream watershed conditions worsened,

(5) Decrease in storage volume at inlet, and

(6) Lack of maintenance.

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These six factors were present during all twelve flooding events and form the basis

for Plaintiff’s expert’s opinion (RT Vol. 5 Pg. 1245, RT Vol. 6 Pg. 1519). Once a plaintiff

has identified the substantial factors which cause the injury, the burden shifts to the public

entity to produce evidence that would show that other forces alone produced the injury.

California State Automobile Assn. v City of Palo Alto (2006) 138 Cal.App.4th 474, 483.

Defendants never entered any contradictory evidence, and never cross-examined Plaintiff’s

expert. The Trial Court inserted its own “expert” opinion for that of Plaintiff’s expert and,

on that basis, erroneously granted the Motion for Judgment after Plaintiff’s case in chief in

the First Phase of the Trial (Appendix #13).

In California State Automobile Assn. v City of Palo Alto, the Trial Court found that

three substantial factors caused a sewage backup, namely tree roots invading the sewer main,

inadequate slope, and standing water in the main. The Court held that the plaintiff did not

have to establish the “how and why” the blockage occurred, but only the substantial factors

which show the public improvement failed to function as intended. Id. Inverse condemnation

liability is still allowed when there are concurrent substantial causes, even if plaintiff was

responsible for one of those factors. Blau v. City of Los Angeles (1973) 32 Cal.App.3d 77,

83-85. The factors identified by Plaintiff’s expert can all be attributed to the public uses by

the named Defendants in this action.

These public entities can also be held liable in inverse condemnation for their

negligent plans of maintenance (or in some instances no plan of maintenance) for the culvert

15

and drainage channel which they use and the other areas under their control contributing to

flooding of Plaintiff’s property. A public entity’s maintenance of a public improvement

constitutes the constitutionally required “public use” so long as it is the entity’s deliberate act

to undertake the particular plan or manner of maintenance. Bauer v. County of Ventura

(1955) 45 Cal.2d 276, 284-285. Damage caused by certain maintenance of an improvement,

rather than the improvement itself, can engender liability for inverse condemnation.

McMahan’s of Santa Monica v. City of Santa Monica (1983) 146 Cal.App.3d 683, 697-698.

The Trial Court in the First Phase never addressed liability for the Defendants’ negligent

plans of maintenance (in the case of CalTrans, the County and OCSD).

In order to prove the type of governmental conduct that will support liability in inverse

condemnation it is enough to show that the entity was aware of the risk posed by its public

improvement and deliberately chose a course of action, or inaction, in the face of that known

risk. Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 744. A negligent

maintenance plan supports inverse condemnation. McMahan’s of Santa Monica v. City of

Santa Monica (1983) 146 Cal.App.3d 683, 696 (failure to replace water mains known to have

limited life); Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596 (no monitoring

program for city water pipes but instead “replace it when it breaks” approach); California

State Auto. Ass’n v. City of Palo Alto (2006) 138 Cal.App.4th 474 (city was liable for

blockage in city sewer main that caused raw sewage to flow into an adjacent residence).

16

Defendants had no adequate plan for maintenance for the drainage from their

properties to the culvert which ultimately floods Plaintiff’s property. (County employee,

Glenn Priddy, RT Vol. 2 Pg. 341; OCSD employee, Phil Davis, RT Vol. 2 Pg. 391; CalTrans

employee, David Fry, RT Vol. 4 Pgs. 911-912, 917, 921-922, Union Pacific Railroad

employee, Javier Sanchez, RT Vol. 4 Pgs. 965-972). Responding to flooding events or

haphazard maintenance is no plan at all. A “replace it when it breaks” maintenance plan has

been held to subject a public entity to inverse condemnation liability as a negligent

maintenance plan. Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596. This is

exactly the type of maintenance plan these Defendants have employed, if they have even

implemented a plan. (RT Vol. 6 Pg. 1568)

 

 

1. Strict Liability, not the Rule of Reasonableness, Applies in this Litigation

 

 

In an inverse condemnation action there are two different analyses to determine if a

public entity is liable. One is the common strict liability standard and the other is the “Rule

of Reasonableness.” The common strict liability standard provides if a public use damages

private property, and a public entity planned, approved, constructed, operated a public

project, or was otherwise engaged in some activity for the benefit of the general public, then

that public entity is liable for all damages caused by that public use. Alternatively, a “Rule

of Reasonableness” was adopted in flood control litigation cases; this test only applies to

public projects which were constructed to protect the public from flood water. The Trial

Court erroneously applied the “Rule of Reasonableness” standard.

17

Arreola v. County of Monterey (2002) 99 Cal.App.4th 722 illustrates this distinction.

This case involved the failure of the Pajaro River Levee Project in 1995 and a separate

inverse condemnation liability finding against the State of California since their drainage

culverts under Highway One obstructed the path of the flood on its way to the sea and

damaged private property. The Appellate Court refused to apply the Rule of Reasonableness

against the State of California in this instance, since the State’s purpose in building the

highway was to benefit the traveling public, not protect it from flood waters. Arreola at 753-

754. The Court concluded that the two sources of the Rule of Reasonableness were

traditional private water law, and Professor Van Alstyne’s public policy balancing analysis,

which both weighed the balance towards strict liability. First, traditional water law does not

privilege downstream obstruction of flood water under any “reasonableness” doctrine, as in

the Arreola. Second, Van Alstyne’s public policy analysis only permits a reasonableness

approach where a project’s primary purpose is to protect plaintiff’s property from flooding

(i.e. flood control).

Another case which addressed this issue was Pacific Bell v. City of San Diego (2000)

81 Cal.App.4th 596. This case involved a corroded cast-iron water pipe owned and

maintained by the City of San Diego which burst and flooded a nearby facility owned by the

plaintiff Pacific Bell. The City of San Diego argued that it was not liable on an inverse

condemnation theory because its maintenance of the pipe which burst was reasonable. The

City acknowledged that the general rule in inverse condemnation case is strict liability, but

18

argued that in water damage cases a rule of reasonableness exception applies. The Appellate

Court held that the City was strictly liable on an inverse condemnation theory even if it

maintained the pipe reasonably. The Court explained that the water law exception, on which

the City relied, applied only to damages caused by public flood control improvements.

Because the subject pipes were not flood control improvements the general rule applied and

the City was strictly liable for the damage to plaintiff’s property. Pacific Bell at 614-615.

In this case, County expert Glenn Priddy confirmed that this is not a flood control case

(RT Vol. 2 Pg. 306) and Plaintiff’s expert engineer confirmed the drainage improvements

are not a flood-control facility (RT Vol. 6 Pg. 1573). Apparently losing sight of this, the

Trial Court improperly applied a “reasonableness” test.

 

 

2. Union Pacific Railroad Company Liability

 

 

The Trial Court ruled the railroad was immune from inverse liability since it claimed

it did not acquire its property by eminent domain. In fact, Union Pacific Railroad’s own

right-of-way map shows it did acquire the property in question by eminent domain (Exhibit

1722). Deeds admitted into evidence confirmed this fact (Exhibits 1724, 1904).

Nonetheless, the Trial Court found the case against the railroad was governed by Canto v.

Pacific Gas and Electric Company (1987) 189 Cal.App.3d. 160. The Trial Court stated that

there is no liability in inverse condemnation of a public utility based upon damages caused

by construction or extension of private facilities on private land, at least where the public

utility does not exercise eminent domain powers to construct or extend those facilities

19

(Appendix #13). The Trail Court was wrong on the law and seems to have forgotten the

evidence put in front of it, which the court admitted.

The Union Pacific Railroad Company is the owner of the raised railroad bed, drainage

channel, and culvert for drainage purposes for the benefit of the public, which has caused

damage to Plaintiff’s property (RT Vol. 4 Pg. 970). The raised railroad bed was constructed

in 1894 and the culvert running underneath it was extended in 1940 (RT Vol. 5 Pg. 1250).

UPRR has also maintained and operated its raised railroad track and drainage system in such

a manner that it promotes surface discharge water to pool and flood Plaintiff’s property (RT

Vol. 5 Pgs. 1276, 1249). These actions by UPRR were a substantial and significant cause

of the damages currently suffered by Plaintiff (RT Vol. 5 Pgs. 1245-1246).

The Trial Court apparently did not believe the Railroad could be liable for inverse

condemnation, ignoring evidence and legal authorities otherwise.

Breidert v. Southern Pacific Company (1964) 61 Cal.2d 659 stands for the principle

of law that a railroad can be held liable in an inverse condemnation action. This case

involved an inverse condemnation action against the Southern Pacific Company railroad for

the closure of a railroad crossing which Plaintiff alleged damaged an important property

right. Breidert at 662. The appeal in front of the Supreme Court was the granting of a

general demurrer in which the railroad defendant claimed it was not a proper party to the

inverse condemnation action. The Supreme Court held that the “defendant railroad

erroneously urges that it is not a proper party defendant to the present action. Since

20

defendant railroad was an active joint participant in closing the crossing, it is a proper party

to the present litigation.” Id. This was confirmed two years later by the California Superior

Court, stating: “It is true that in Breidert v. Southern Pac. Co., supra, 61 Cal.2d 659, 662, we

held that a railroad can be liable in inverse condemnation when it acts alongside the State to

cause an interest in land to be condemned.” City of Manhattan Beach v. Superior Court

(1996) 13 Cal.4th 232, 266; Justice Mosk dissenting opinion.

UPRR has claimed in that in order for the railroad to be liable for inverse

condemnation it must have obtained the property on which a public improvement is located

by way of eminent domain (Appendix #2). This is not a correct statement of the law. A

railroad can still be held liable in inverse condemnation if it acquires the property in fee.

Breidert v. Southern Pacific Company (1969) 272 Cal.App2d 398, 401.

More significantly, Plaintiff submitted evidence, which was admitted, that UPRR

obtained the property by condemnation in 1891 (Exhibit 1904; RT Vol. 6 Pgs. 1608-1611).

This fact was ignored by the Trial Court in its ruling.

The evidence admitted shows that UPRR does not have a maintenance plan for this

improvement (RT Vol. 4 Pgs. 965-972). It further shows UPRR extended the culvert in 1940

and allowed its tenant to expand on its property and alter the outfall without proper

precautions (RT Vol. 5 Pg. 1250). Even in strict liability cases situations that do not involve

flood control, negligent omissions may create inverse liability. McMahan’s of Santa Monica

v. City of Santa Monica (1983) 146 Cal.App.3d 693, 696 (failure to replace water mains

21

known to have limited life). UPRR has failed to properly maintain and control the drainage

system under its railroad, which benefits the public at large at Plaintiff’s expense. This

callous disregard for neighboring property owners subjects UPRR to inverse condemnation

liability.

 

 

3. County of San Luis Obispo Liability

 

 

The Trial Court failed to hold the County of San Luis Obispo liable for inverse

condemnation because of a perceived lack of a cause-and-effect relationship between the

County’s conduct and Plaintiff’s damages. (Appendix #13)

The evidence and uncontroverted expert opinion testimony shows the County of San

Luis Obispo is liable for inverse condemnation since its storm water drainage system collects

and carries stormwater to, through, and from the culvert in question as part of its “drainage

system” (RT Vol. 2 Pg. 367). The County’s impermeable system of streets, curbs, gutters,

and sidewalks reduce the infiltration rate of stormwater in the watershed and funnels

extraordinary and unnatural amounts of stormwater toward Plaintiff’s property and the

undersized culvert (RT Vol. 5 Pgs. 1245, RT Vol. 6 Pg. 1519-1520). The County’s drainage

system has further contributed to the dirt and debris which has reduced the storage volume

in the drainage channel and near the inlet of the culvert (RT Vol. 5 Pgs. 1520-1521). Even

though the County uses the drainage channel and culvert to dispose of its storm water it has

not properly undertaken any type of maintenance plan to insure its storm water does not harm

private property (RT Vol. 2 Pg. 391).

22

The Trial Court failed to rule on an additional principal theory of inverse

condemnation briefed and pled by Plaintiff. Approval and acceptance (sometimes by mere

use) of a private improvement, such as a street or drainage system, may subject the public

entity to liability to a third party whose property is damaged. Approval and acceptance by

the public agency may be implied by official acts of dominion or control of the property and

by continued use of the improvement by that agency for many years. Sheffet v. County of Los

Angeles (1970) 3 Cal.App.3rd 720, 735; Marin v. City of San Rafael (1980) 111 Cal.App.3d

591, 596, disapproved on other grounds by Bunch v. Coachella Valley Water Dist. (1997)

15 Cal.4th 432, but recently cited with approval on the issues at hand in Paterno v. State

(2003) 113 Cal.App.4th 998, 1029.

Substantial participation includes the approval of plans and acceptance of streets by

a Defendant, although a private contractor actually planned and constructed the streets, if a

necessary consequence of the tract design, creation, and improvement of the streets was an

increased burden on drainage system affecting Plaintiff’s property. Sheffet v. County of Los

Angeles (1970) 3 Cal.App.3d 720, 734-735. Substantial participation also includes the

approval of subdivision maps and drainage system plans if a Defendant failed to appreciate

the probability that the drainage system, as conceived and while functioning, would damage

Plaintiff’s property. Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345, 362-363.

Privately owned drainage systems permitted by a public entity and operating as part

of a public drainage system can subject a public entity to inverse condemnation, either

23

explicitly or by continued use of the drainage system over time. See Marin v. San Rafael

(1980) 111 Cal.App.3d 591; Frustuck v. City of Fairfax, supra; Steiger v. City of San Diego

(1958) 163 Cal.App.2d 110. Use of the land (for a public purpose) over a reasonable period

of time constitutes acceptance, without any formal action in relation thereto by governmental

authority. McKinney v Ruderman (1962) 203 Cal.App.2d 109, 115.

The County’s Glenn Priddy testified that the County’s collection of gutters, street and

drainage courses was a “drainage system” (RT Vol. 2 Pg. 367). This system includes the 24"

culvert, POVE junction box and pad, through which all water from the drainage above

Plaintiff’s property rushes. This Defendant’s use of the channel and culvert to drain their

surface water away from their public uses is an acceptance of the public improvement, which

subjects them to inverse condemnation liability since this improvement has damaged

Plaintiff’s property. Ignored by the Trial Court was the County’s direct approval of POVE’s

plans and direction to POVE concerning the most controversial part of the drainage outfall,

the junction box, its 90E turn and the retention pond’s construction and design (RT Vol.5

Pgs. 1257-1264). (Exhibits 1874, 1875) This puts the facts squarely on line with Marin v.

San Rafael, supra. The Trial Court completely overlooks this theory of recovery and does

not discuss or respond to the unrefuted evidence of the County’s admitted ownership of and

involvement in the “drainage system” at issue.

///

///

24

4. OCSD Liability

The Trial Court held that the Plaintiff failed to prove that OCSD’s conduct had a

“substantial cause-and-effect relationship” to Plaintiff’s property damage, especially given

the likelihood that “other forces along produced the injury.” (Appendix #13) The Trial Court

does not indicate what those “other forces” are.

Plaintiff proved that OCSD has extensively used and controlled the drainage channel

which leads to the culvert (RT Vol. 2 Pgs. 383-403). OCSD has been discharging well water

from their Discharge Water Well #8 into the channel and culvert, which has been identified

as a major contributing factor to the flooding (RT Vol. 5 Pgs. 1272-1273). Moreover,

uncontroverted expert testimony opined that the pipe trapped debris, helping to clog 24" pipe

(RT Vol. 5 Pg. 1269). OCSD official Phil Davis testified to haphazard maintenance of the

channel and weed abatement of the immediate surrounding area on several occasions (RT

Vol. 2 Pgs. 387-403, RT Vol. 6 Pgs. 1552-1553). OCSD’s use and maintenance contributed

to the overall decrease in the storage volume at the inlet, which is also another substantial

factor is causing the flooding (RT Vol. 6 Pg. 1545). This subjects OCSD to inverse

condemnation liability under the undisputed facts admitted at trial.

 

 

5. CalTrans Liability

 

 

The Trial Court held that there was no casual connection between the conduct by the

State of California on Plaintiff’s damages. (Appendix #13)

25

Plaintiff proved that CalTrans owns the first 4 feet of the drainage channel connecting

Highway One to the culvert (RT Vol. 4 Pg. 911). It has exerted control and dominion of the

drainage channel (RT Vol. 4 Pgs. 921-925). It uses the drainage channel and culvert to drain

their surface water from Highway One in this watershed (RT Vol. 4 Pgs. 917 - 922). Among

other actions, Caltrans has twice performed an asphalt overlay on Highway One as it travels

in front of Plaintiff’s property, which overlay has reduced the storage volume in the drainage

basin, altered the drainage channel inlet. CalTrans removed a protective retaining wall near

the drainage channel, causing large amounts of silt sediment to reach the culvert (RT Vol.

6 Pgs. 1521-1526, 1548). CalTrans has performed several acts of haphazard maintenance

in the drainage channel and on Highway One, such as bulldozing a channel and shoveling

mud, sediment, and eucalyptus debris into the channel (RT Vol. 4 Pgs. 912-917; Exhibits

1466 - 1467; Exhibits 1513 - 1519), pursuant to a virtually non-existent, negligently drawn

maintenance plan (RT Vol. 6 Pgs. 1555, 1563-1564). CalTrans is liable for inverse

condemnation for their actions in the drainage channel, the construction of Highway One and

their negligent (non-existent) maintenance plan for the channel. A public body may be liable

for flood damage to private property caused by steepening a road grade or paving a road,

resulting in less absorption and more runoff of water. Newman v. City of Alhambra (1918)

179 Cal. 42; Andrew Jergens Co. v. City of Los Angeles (1951) 103 Cal.App.2d 232, 229.

CalTrans created and contributed to a drainage basin on Highway One. It cannot now deny

26

its impact on neighbors (expanding this basin) as anything but a taking since this public

improvement is functioning as designed and intended.

 

 

D. The Directed Judgment Pursuant to Code of Civil Procedure § 631.8 is Not

Substantiated by the Record

 

 

 

After Plaintiff’s case-in-chief all four remaining Defendants moved the Court for a

Motion for Judgment. The Court entertained argument and supplemental briefing before

granting the Defendants’ motion. The Court disregarded Plaintiff’s uncontroverted expert

witness opinion, percipient witnesses, and adverse witness testimony, substituting its own

“expert” opinion. The only Exhibit submitted by the Defendants was Exhibit 579. Plaintiff’s

expert opinion was not controverted (nor even cross-examined). A fact trier normally may

not ignore testimony that is neither impeached nor contradicted: “It is the general rule that

the ‘uncontradicted testimony of a witness to a particular fact may not be disregarded, but

should be accepted as proof of the fact’.” Joseph v. Drew (1950) 36 Cal.2d 575, 579.

The standard of review of a judgment and its underlying findings entered pursuant to

§ 631.8 is the same as a judgment granted after a trial in which evidence was produced by

both sides. San Diego Metropolitan Transit Develop. Bd. v. Handlery Hotel, Inc. (1999) 73

Cal.App.4th 517, 528. Therefore, a judgment rendered under § 631.8 is reviewed under the

usual “substantial evidence” standard. Charles C. Chapman Bldg. Co. v. California Mart

(1969) 2 Cal.App.3d 846, 853. Plaintiff presented overwhelming evidence of the causes and

effects of the flooding of Plaintiff’s property. This included over 500 photographs of the

27

flooding and surrounding property (Exhibits 1000 - 1665), a video of the flooding condition

(Exhibit 1816), a video of the OCSD Well #8 operating in a dry condition (Exhibit 1816),

several hundred documents showing the dominion and control of each Defendant in relation

to the drainage facilities which cause the flooding, the testimony of several percipient and

adverse witness, and the testimony of Plaintiff’s expert, Keith Crowe. As this Motion was

granted after Plaintiff’s case-in-chief, there was no substantial conflicting or contradictory

evidence submitted by the Defendants which could support the ruling granting Defendant’s

Motion for Judgment on the First Phase for Inverse Condemnation Liability. The Trial Court

simply substituted its “expert” opinion for that of Plaintiff’s expert.

 

 

E. The Granting of Defendants' Motion for Judgment on the Pleadings Deprived

Plaintiff of his Right of Petition

 

 

 

 

The Trial Court found that Plaintiff’s cause of action for inverse condemnation

accrued sometime before May 2, 2003 (Appendix #13). This ruling should not have

prevented Plaintiff from bringing his remaining causes of action in the Second Phase of this

litigation, as the statute of limitations are completely different, and the First Phase did not

address important non-inverse liability issues, such as negligent maintenance by UPRR.

1. Plaintiff’s Remaining Causes of Action Differ from Inverse Condemnation

The accrual date for Plaintiff’s remaining causes of action for nuisance, negligence,

dangerous condition of public property and trespass differ from the accrual date for inverse

condemnation since there is a repetitive and continuous flooding condition at Plaintiff’s

28

property. Plaintiff’s expert, Keith Crowe, testified that Defendants’ continued negligent or

non-maintenance of the drainage system as well as negligent or non-weed abatement

practices continued to increase the severity and frequency of flooding at Plaintiff’s property

(RT Vol. 6 Pg. 1568). The conditions are in no way static in this drainage basin, and actions

by these Defendant’s continue to harm, interfere, and damage Plaintiff. As such they are

actionable under the remaining non-inverse condemnation causes of action.

Defendants conceded that the standards for causation for inverse condemnation are

different from tort causation (Appendix 17, Page 5). In all the remaining causes of action,

Plaintiff must prove that “the defendant’s conduct was a substantial factor in causing

Plaintiff’s harm.” See CACI 400, 1100, 2000, and 2001. In a non-inverse condemnation

multiple party, multiple concurrent causes case, substantial factor has been defined as

follows:

“[a] person’s negligence may combine with another factor to cause harm. If

you find that [defendant’s] negligence was a substantial factor in causing

[plaintiff’s] harm, then [defendant] is responsible for the harm. [Defendant]

cannot avoid responsibility just because another person, condition, or event

was also a substantial factor in causing [plaintiff’s] harm.”

See CACI 431. This standard of proof differs from causation for inverse

Condemnation. Therefore, Judge Tangeman’s ruling in the First Phase does not bar Plaintiff

from proving his causation case for negligence, nuisance, trespass, and dangerous condition

of public property in Phase Two. This distinction is not adequately addressed by Judge

Estrada-Mullaney.

29

It is error to deprive Plaintiff the chance to prove negligence or other bifurcated

claims, as the causation principles are far more liberal for Plaintiff’s remaining causes of

action.

2. The Flooding of Plaintiff’s Property is a Continuing Nuisance

Judge Estrada-Mullaney misconstrued Judge Tangeman’s decision on inverse

condemnation liability and its effect on Phase Two of this bifurcated trial. Judge

Tangeman’s ruling is not collateral estoppel for the Plaintiff’s remaining causes of action

since these causes of action were pled based on the allegations and testimony regarding

repetitious and continuous nature of the flooding at Plaintiff’s property, whereas Inverse

Condemnation law sets a fixed date for accrual of the statute of limitations.

The Plaintiff testified that his property has flooded at least twelve (12) times since

2004 (Exhibit 1867; RT Vol. 5 Pgs. 1210-1211). Each event, it is alleged, is caused by

inadequate, negligent, or non-existent maintenance, among other factors. That lack of

maintenance resulted in flooding, according to Plaintiff’s expert. Each year’s maintenance

failure sets a new accrual time for the remaining causes of action. The flooding of Plaintiff’s

property is, therefore, a continuing nuisance and trespass. Upon each separate and individual

flood event a new cause of action accrues which supports Plaintiff’s current causes of action

for nuisance and trespass against the remaining Defendants. Phillips v. City of Pasadena

(1945) 27 Cal.2d 104, 107-108. This is true even if the original action is barred by the statute

of limitations. Id. Each time Plaintiff’s property floods, a new cause of action for private

30

nuisance is created. A nuisance is continuing if it may be discontinued at any time and is an

ongoing or repeated disturbance. Baker v. Burbank-Glendale-Pasadena Airport Authority

(1985) 29 Cal.3d 862, 869. The continuing nature of a nuisance refers to the continuing

damage caused by the offensive condition, not to the acts causing the offensive condition to

occur. Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1147.

Similarly, Plaintiff’s claim for continuing trespass is not barred from proceeding in

this second phase of the trial. The application of the statute of limitations for trespass is the

same as for nuisance, dependent on whether the trespass is continuing or permanent.

Spaulding v. Cameron (1952) 38 Cal.2d 265, 268. The test of the permanency of a trespass

or nuisance is whether the trespass or nuisance can be discontinued or abated. The theory

of continuing trespass is sanctioned by the Restatement (Second) of Torts. Mangini v.

Aerojet-General Corp, supra, at 1148. As with nuisance, the continuing nature of these

floods creates a new accrual date for trespass every time the property floods.

Similarly, Plaintiff’s final two causes of action for negligence and dangerous

condition of public property are also not time barred by Judge Tangeman’s ruling. Each

flood at Plaintiff’s property is caused by different negligent factors by these Defendants;

most notably the negligent lack of maintenance or a maintenance plan, the negligent

performance of maintenance, and the haphazard weed abatement in the drainage basin. The

repetitious nature of Plaintiff’s damages creates repeating causes of action for negligence and

dangerous condition of public property upon each flooding event.

31

Judge Estrada-Mullaney cites Lee v. Los Angeles County Metropolitan Transportation

Authority (2003) 107 Cal.App.4th 848, for the principle that since Plaintiff’s cause of action

for inverse condemnation is time barred, then Plaintiff’s remaining causes of action are also

time barred. This is an incorrect statement of the law and her cite is actually quite helpful

to supporting Plaintiff’s position. In Lee, the Court actually found that the plaintiff had

adequately alleged a continuous and repeated course of conduct causing damages to her

property which had not stabilized at the time plaintiff’s complaint was filed and, therefore,

plaintiff’s causes of action had not yet accrued and were not time barred. Lee at 858.

Similarly, the repetitive nature of the flooding at Plaintiff’s property in this litigation is

continuous, and not barred by the initial accrual or the original flooding date finding made

by Judge Tangeman.

F. The Trial Court Improperly Allowed Evidence into the Record During the First

Phase which was not Produced During Discovery, Substantially Prejudicing

Plaintiff

The Trial Court admitted and relied upon Defense Exhibit 579, a County record

previously undisclosed and introduced by Co-Defendant UPRR, over objection of counsel

(RT Vol. 5 Pgs. 1226-1228). Defense Exhibit 579 was an unsolicited questionnaire from the

County of San Luis Obispo in support of its drainage study published in 2004 (Exhibit 579).

This evidence was admitted over Plaintiff’s objection to the withholding of the evidence

during the discovery process, as the first time it was shown to Plaintiff was at trial. Plaintiff

32

had specifically requested this type of evidence in discovery, and it was not produced by any

party (RT Vol. 6 Pgs. 1614-1618). After the ruling was entered on August 5, 2008,

Defendant County of San Luis Obispo, sent Plaintiff its entire set of responses to the

Drainage Study questionnaires (Appendix 15). These responses clearly show the County of

San Luis Obispo’s “received” stamp in the upper right hand corner. These documents, as

well as the Plaintiff’s own written response, were never produced in discovery and should

not have been allowed to be used in this trial. The responses listed numerous statements and

witnesses not previously disclosed or produced, even though Plaintiff requested such

information from UPRR and the County during discovery (Appendix #14).

The Trial Court has the power to exclude documents at trial that have been concealed

or that counsel failed to produce in response to discovery requests that would cause “unfair

surprise” at trial. Deeter v. Angus (1986) 179 Cal.App.3d 241, 255; Vallbona v. Springer

(1996) 43 Cal.App.4th 1525, 1547-1548; Pate v. Channel Lumber Co. (1997) 51 Cal.App.4th

1447, 1455. Documents concealed during discovery may be excluded at trial even where

there was no prior order compelling production. The propounding party would have no

reason to seek such an order where discovery responses falsely state such documents do not

exist. Pate v. Channel Lumber Co., supra, 51 Cal.App.4th at 1456.

Plaintiff sent the following two document requests to Defendant County of San Luis

Obispo (Appendix 15):

1. True and correct copies of all writings, documents, statements, reports,

recordings or other items that deal with, document, refer to or

33

memorialize all statements or utterances made by or on behalf of this

plaintiff concerning any of the allegations contained in plaintiff’s

Complaint.

2. True and correct copies of all writings, documents, statements, reports,

recordings or other items that deal with, document, refer to or

memorialize any statements, comments or writings by any witness or

any individual who purports to be a witness or to have any information

relative to the incidents referred to in plaintiff’s Complaint.

These requests clearly ask for the type of document which was presented at trial and

relied upon by the Trial Court. This was an abuse of the Discovery Act and the document

at issue, and any testimony related to it, should have been excluded from the trial.

After trial, Defendant County of San Luis Obispo sent Plaintiff all the responses to

the questionnaires it had in its possession. (Appendix 14). These were attached to the Exhibit

Package to Declaration of John W. Belsher re: Motion for New Trial. (Appendix #15). These

documents show the “received” stamp by the County of San Luis Obispo and disclose

numerous statements by other potential witnesses and the statements of Plaintiff. Defendant

County of San Luis Obispo further redacted the names on these responses to prevent Plaintiff

from identifying possible new witnesses to the flooding conditions near Plaintiff’s property,

another abuse of the Discovery Act. These witnesses could possibly have new information

relevant to the litigation, and could have been used by Plaintiff in his “offer of proof” to

show the flooding of Plaintiff’s property did not begin until the year 2004.

In terms of fairness, Defendants cannot be allowed to violate the Discovery Act and

secrete documents by just handing them to a co-defendant at trial, when that document was

34

never produced in response to Plaintiff’s discovery requests. The sanction should have been

exclusion. Its admission constituted unfair surprise and was extremely prejudicial, as

selectively and incompletely submitted and argued by UPRR. Its admission was reversible

error, as it led directly to the Court’s ruling of dismissal on statute of limitation grounds.

VII.

CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that this Court reverse Judge

Tangeman’s ruling for Judgment on the First Phase of the trial for Inverse Condemnation

Liability, reverse Judge Estrada-Mullaney’s ruling for Judgment on the Pleadings for the

Second Phase of the trial, and order a re-trial of this case and the issue presented therein.

Dated: October ___, 2009 BELSHER & BECKER

By: ______________________

JOHN W. BELSHER

Attorneys for Appellant WILLIAM

BOOKOUT dba OCEANO NURSERY

35

CERTIFICATE OF WORD COUNT

(Cal. Rules of Court, rule 14(c)(1))

The text of this brief consists of 8,609 words as counted by the Corel WordPerfect

version X3 word-processing program used to generate the brief.

Dated: October ___, 2009 BELSHER & BECKER

By: ______________________

JOHN W. BELSHER

Attorneys for Plaintiff/Appellant

WILLIAM BOOKOUT dba OCEANO

NURSERY

36

PROOF OF SERVICE

STATE OF CALIFORNIA )

) ss.

COUNTY OF SAN LUIS OBISPO )

I, ANGELA M. BREZDEN, declare as follows:

I am a citizen of the United States and an employee in the County of San Luis Obispo.

On the date set forth below, I caused the document(s) described below to be served:

APPELLANT’S OPENING BRIEF

on the interested parties in this action addressed as follows:

SEE ATTACHED SERVICE LIST

[X ] BY UNITED STATES MAIL: I am readily familiar with the firm’s practice of

collection and processing documents for mailing. Under that practice, the envelopes

are sealed and, with postage thereon fully prepaid, deposited with the United States

Postal Service on that same day at San Luis Obispo, California, in the ordinary course

of business. I am aware that, on motion of the party served, service is presumed

invalid if the postal cancellation date or postage meter date is more than one day after

the date of deposit for mailing in this affidavit.

[ ] BY HAND DELIVERY: I personally delivered such envelope to the offices of the

addressee, following ordinary business practices.

[ ] BY FACSIMILE: I caused the above-described document(s) to be sent via facsimile

transmission to the offices of the addressee, following ordinary business practices.

[ ] BY OVERNIGHT COURIER: I caused such document(s) to be delivered by

overnight mail to the offices of the addressee by placing it for collection by Federal

Express following ordinary business practices, to wit, that package(s) will either be

picked up from the firm by the courier service, and/or delivered to the courier’s office.

[ ] BY E-MAIL: On the above-date at _____a.m., I electronically served the

above-described document(s) to the offices of the above.

37

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct.

Executed and served on October __, 2009 at San Luis Obispo, California.

_______________________________

ANGELA M. BREZDEN

38

 

 

BOOKOUT et al. v. OCEANO COMMUNITY SERVICES DISTRICT

APPEAL CASE NO. B214906

PARTY LIST

 

 

Adam Daner, Esq. (SBN 171886)

Daner Law Firm

5855 Capistrano Ave., Suite G

Atascadero, CA 93422

Tel: 805-464-5003

Fax: 805-464-5004

Email: unlisted

Attorney for Respondent OCEANO

COMMUNITY SERVICES DISTRICT

Thomas A. Cregger, Esq. (SBN 124402)

Randolph, Cregger & Chalfant, LLP

1030 G. Street

Sacramento, CA 95814

Tel: 916-443-4443

Fax: 916-443-2124

Email: tac@randolphlaw.net

Attorney for Respondent UNION

PACIFIC RAILROAD COMPANY

David Sullivan, Esq. (SBN 142881)

Derek VanHoften, Esq. (SBN 226880)

P.O. Box 7444

San Francisco, CA 94120-7444

Tel: 415-904-5700

Fax: 415-904-2333

Email: unlisted

Attorney for Respondent STATE OF

CALIFORNIA DEPT. OF

TRANSPORTATION

Molly Thurmond, Esq. (SBN 104973)

Hall, Hieatt & Connely

1319 Marsh Street, Second Floor

San Luis Obispo, CA 93401

Tel: 805-544-3830

Fax: 805-544-5329

Email: unlisted

Attorney for COUNTY OF SAN LUIS

OBISPO

 

 

Supreme Court of California

303 Second Street

South Tower, Eighth Floor

San Francisco, California 94107

 

 

4 copies
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Judge Estrada-Mullaney

San Luis Obispo Superior Court

1055 Monterey St., Dept. 3

San Luis Obispo, CA 93408

Judge Martin Tangeman

San Luis Obispo Superior Court

1055 Monterey St., Dept. 3

San Luis Obispo, CA 93408

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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