Second Appellate Court

PAGE

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

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

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

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.

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

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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).

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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3

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

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).

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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

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

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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).

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).

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

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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).

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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

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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

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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.

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

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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

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.

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

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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.

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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.

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

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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.

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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.

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

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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

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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.

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

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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

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:

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