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The Five Cities Times Press Recorder inspecting the OCSD Well # 8 Discharge into the Oceano Communities Storm Water Drainage System! November 30, 2008
When our California Constitutional Rights are taken away from us and our property is taken for a dangerous public use, as Caltrans raising a State Highway and then shoveling and Grading Contaminated Storm Water Debris into a Storm Water Drainage Channel, it is our duty to make the public aware; especially when their public safety has been endangered! Please View Caltrans and County using State Hwy 1 for a storm water retention. The San Luis Obispo Superior Court has stated August 5, 2008 regarding the flooding of State Highway 1 and Oceano Nursery: "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance"
JAMES ARREOLA et al., Plaintiffs and Respondents, v. -- San Luis Obispo County Drainage Changes dating back to the early 1950's.
If the San Luis Obispo Superior Courts decision stands, then all California Inverse Condemnation case law will change
6.5.3 Property Historically Subject to Flooding
Public projects not related to flood control trigger strict liability when they cause water damage to property, even if it is historically subject to flooding.
A state highway backed up flood water onto plaintiffs' property. The appellate court concluded that the two sources of the rule of reasonableness--traditional private water law, and Professor Van Alstyne's balancing analysis--both weighed towards strict liability. First, traditional water law does not privilege downstream obstruction of flood water, as in the instant case. Second, Van Alstyne's public policy analysis only permits a reasonableness approach where a project's primary purpose is to protect plaintiffs' property. Here, the State's purpose in building the highway was to benefit the traveling public.
Arreola v. Monterey County (2002) __Cal.App.4th__ [2002 Cal. App. LEXIS 4319].
Can a San Luis Obispo Superior Court Judge allow the County of San Luis Obispo to withhold evidence affecting public Health Safety with full knowledge of the documents that where withheld from discovery and trial? The County of San Luis Obispo withholding of evidence from discovery until December 2, 2008 should not be allowed!
Caltrans after trial shoveling storm water debris into the Oceano Communities storm water drainage channel as can be seen at http://www.oceanonurseryflooding.blogspot.com/ in video!
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Oceano Nursery Contaminated Storm Water outside damage!
Two Feet plus of contaminated storm water in 2004
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OCSD Well # 8 PVC pipe that Judge Tangeman stated: "In the case of OCSD, the evidence largely consisted of the construction of the drainage outfall from Well No. 8 In the vicinity of the culvert. While there was evidence of substantial amounts of water being discharged from well # 8, there was an absence of evidence that such discharges occurred contemporaneously with heavy rains and flooding problems."
OCSD Well # 8 debris dredged into the Oceano Communities drainage system.
OCSD Fire Department having to drive through flooded waters!
Superior Court Judge Martin J. Tangeman in his August 5, 2008 Trial Court decision regarding Caltrans Maintenance stated: "Mr. Fry testified that any work undertaken by Cal Trans employees in the channel to help clear the channel were most likely undertaken solely as a "good neighbor" practice by a "conscientious employee."
The State of California, Caltrans at trial Stated on page 920-921 of the Court Reportor's transcript, for July 14, 2008 regarding their shoveling dirt and debris inside the Oceano Community’s Storm Water drainage channel as seen above: “I’m not sure what they’re doing in this picture. It appears that they’re throwing dirt up on the bank at the base of the tree.” Question: “Is this anything related to the buildup of sediment at the mouth of the drainage channel?” Answer. “Well it’s more grass. Well, Yeah, sediment and grass.” Question: And where’s this material removed to when you engaged in this particular activity? Answer. “Based on the Mud behind me at the base of the tree, I would say we where throwing it up on the bank.” Question: So you were keeping it in the four feet that you consider to be Caltrans right-of-way? Answer. “YES” Question: And how often have you engaged – You or your staff engaged in the particular activity? Answer. “How often does it rain down there?” Question: Is it fairly often – Answer: “YES” Question: Based on the rainfall. Answer. “YES, just about every time it rains.” Judge Tangeman Exhibits presented to him during trial showing Caltrans endangering public Safety!...
Caltrans shoveling debris into drainage system!
Caltrans at drainage inlet, shoveling debris into storm water drainage channel
View Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Arreola v. Monterey County (6th Dist. June 25, 2002) 99 Cal.App.4th 722 [122 Cal.Rptr.2d 38]. Caltrans actions as seen in the video above goes against California Streets and Highway code sections 720-734 particular, section 725 (Prejudical error) Arreola v. Monterey shows “An entity with the power to control a project need not actively participate in it to suffer liability. Proof that an entity signed a contract assuming responsibility for the project, shared a common governance with an active participant, or provided an exclusive revenue source for the project, can establish control.”Arreola v. Monterey County (2002) Cal.App.4th[2002 Cal. App. LEXIS 4319].
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Judge Tangeman Stated page 1226 regarding the photo evideence above witheld from disciovery by the County of San Luis Obispo “Another question is, I’m not sure we laid a foundation as to anything more than the first page. I don’t know what the second
and third pages are.” Page 1227 The Court States “Oh, I think a foundation was laid
as to pages 1 and 2. I do note that page 2 is referenced in page 1. But page 3 we
didn’t address.” The Railroad then states: “And for the purpose of the exhibits
we don’t need the photographs.” The Court “All Right------
Judge_Mullaney_Judgement_Februar... Blames POVE 100%. Under Causation the Skoumbas case, citing Locklin v. Lafayette (1994) 7 Cal. 4th 327, 367 added --leaving out Belair, Lockilin and Bunch embody policies that recognize inverse condemnation!
In Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. As cited to the Trial Court. “We conclude that 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.”Judge Tangeman Exhibits presented to him during trial showing Caltrans County and OCSD aware of the risk posed by their improvements Safety!...
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Caltrans Raising State Highway 1!
The Trial Court erred regarding Inverse Condemnation and "date of Stabilization" with the evidence above. The San Luis Obispo Court has ignored our California Constitution (Property Rights Article I Section 19) The Trial Court Stated "Finally,the Court does not find a factual basis to impose liability based upon allegedly increasing elevations of Highway 1 resulting from overlay projects. First, the evidence was mixed at best as to weather the absolute elevation of Highway 1 changed in a substantial way as a result of the "remove and replace" projects." Caltrans had previously addressed their drainage at this location and were aware of their actions as seen in Exhibit # 579 "Overlay From Caltrans in 2001 on HWY 1." At Trial an in exhibits drainage changes by Caltrans are seen in 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008 showing no Stabilization! The County of San Luis Obispo withheld part of their knowledge of these drainage changes from discovery Exhibit # 579 states: "Caltrans raising Highway 1 at 13th Street (summer 2002) Contributing to elevated flooding (inability for water to cross roadway) on northeast side of Highway 1 (at Oceano Nursery)"County withholding evidence from discovery until December 2, 2008 of flooding before Hwy 1 Baughman
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Superior Court Judge Teresa Estrada-Mullaney in her February 2, 2009 Judgment Decision "Notice of Judgment" States: "Judge Tangeman determined the flooding problem was "static" for several years prior to Plaintiff's purchase of his property. Plaintiff contends the flooding is continuous and can be abated. Plaintiff argues Defendants negligent maintenance of the drainage system increases the frequency and severity of the flooding. That is inconsistent with Judge Tangeman's determination that the primary culprit was POVE's improvements, rather than negligent maintenance of the drainage system. There was no showing that Union's operation of Well No. 8 contributed to the blockage. There was no showing of the County's responsibility for maintaining the drainage channel. There was no evidence that any accumulated debris in State's right of way contributed to the problems in the operation of the drainage system. County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" View Judge Tangeman Exhibits presented to him during trial showing Caltrans, County and OCSD continuous and repeated conduct endangering public Safety, with no Stabilization in this drainage system pdf...
OCSD at trial July 10, 2008 acknowledged that this type of discharge runs back to State Highway 1! View Photo Exhibit #1342 presented to Judge Tangeman of OCSD Drainage Improvements, changes and"obstacles" dredging 4500 Gallons of their Well #8 Water and debris into the Railroads Storm Water Drainage channel daily. This is a substantial cause of how debris gets packed into the Railroads storm water drainage system. The County Health Department has approved this according to OCSD P. 85 July 10, 2008 testimony. See Exhibit Evidence_presented_to_Judge Tangeman showing the effects of OCSD pipe during storms# 1278, 1337, 1338.1342..
Judge Tangeman erred in his August 5, 2008 decision regarding Cal Trans as he States: "There Was Insufficent Evidence To Hold The State of California Liable For Inverse Condemnation" The Court then States. "Nor was there substantial evidence that debris accumulated within the State's right-of-way (as opposed to the debris accumulated on private property outside the boundaries of the right-of -way) contributed in any meaningful way to the problems in the operation of the drainage facilities on Railroad and POVE properties." SeeTrial Exhibits seen by Judge Tangeman...
Judge Martin J. Tangeman in his August 5, 2008 decision stated: "Plaintiff also alleged that OCSD should be liable because its outfall pipe acted as a dam to capture debris in times of flooding, and/or that at times of discharge from its outfall pipe, debris may have been pushed into the culvert." "In each of these cases, the Court finds that the evidence is too speculative to support liability for inverse condemnation. No studies were undertaken or evidence provided showing the effect, if any, of either of these factors during times of flooding." These photos evidence were presented to the Trial Court showing the Nursery not flooding in December 2002 with this OCSD pipe damming debris! The Trial Court Stated this Pipe was not in this drainage channel is wrong as seen in these photos. View exhibit evidence presented to Judge tangeman... Recent Developments in Inverse Condemnation Law
The Trial Court Erred in ignoring P. 55 of the July 10, 2008 trial transcript with OCSD requesting of the County of San Luis Obispo to change the drainage system used by the County, Caltrans and Railroad Exhibit # 1756 The Oceano Community Service District Letter to The County of San Luis Obispo and Southern Pacific Railroad April 21, 1983 stated in Quotes "This Channel has been protected by use of a culvert that would conduct surface waters under Southern Pacific tracks to what may be a bunker under the loading docks of the Pismo-Oceano Vegetable Exchange (POVE) . The water, then, might flow to a small retention basin maintained by POVE."Caltrans and County using State Hwy 1 for a storm water retention basin Exhibit #1756 OCSD Prescriptive Easment.
"Because this is an established drainage channel. The District feels that its full design capacity should be available for use. Reserch, however has not clearly revealed the agency responsible for the maintenance of the channel. Consequently , we have no idea the condition of the channel and wheather, in its present state of maintenance, it can adequately carry the quantity of water that will be discharged. The District is therefore notifying all those agencies that may be involved in the channel's maintenance of its possible impending use and the degree to which it may be used."
The Trial Court in their quote "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" Erred in ignoring P. 55 of the July 10, 2008 trial transcript with Oceano Community Service District requesting of the County of San Luis Obispo to change the drainage system used by the County, Caltrans and Railroad Exhibit # 1756 The Oceano Community Service District Letter to The County of San Luis Obispo and Southern Pacific Railroad April 21, 1983 stated in Quotes "This Channel has been protected by use of a culvert that would conduct surface waters under Southern Pacific tracks to what may be a bunker under the loading docks of the Pismo-Oceano Vegetable Exchange (POVE) . The water, then, might flow to a small retention basin maintained by POVE."Caltrans and County using State Hwy 1 for a storm water retention basin Exhibit #1756 OCSD Prescriptive Easment. "Because this is an established drainage channel. The District feels that its full design capacity should be available for use. Reserch, however has not clearly revealed the agency responsible for the maintenance of the channel. Consequently , we have no idea the condition of the channel and wheather, in its present state of maintenance, it can adequately carry the quantity of water that will be discharged. The District is therefore notifying all those agencies that may be involved in the channel's maintenance of its possible impending use and the degree to which it may be used."
The Trial Court erred with Exhibits 1874 and 1875--County Building and Construction Permits-This is where the County of San luis Obispo required the Oceano Community's Storm Water Retention pond changed March 27, 1985 after the County approved POVE to use the retention pond December 13, 1984 after OCSD had informed the County that POVE could not use the Sanitary Sewer system for wash water from POVE vegetables. The County's letter December 26, 1984 talks about County of San Luis Obispo hazard to health toxic pesticide in a storm water retention. "To be sure there is no hazard to health from possible concentrated amounts of toxic pesticide, we will require a written approval by the County health Department of this on-site retention basin." Please ask questions of Regional Water Quality Control Board?
These are quotes from Exhibits presented to the Trial Court exhibit # 1785 May 14, 1987 This is after the County had required drainage improvement changes in 1985 on Railroad property for the retention pond used by the County, Caltrans and OCSD after issueing building permits to POVE! “We decided that there were two basic solutions to the problem. They are:” “# 2 Construct a detention or retention basin above the Railroad on their property and leave the existing culvert as is.” “Tim Smith and Glenn Priddy we discussed the flooding problems that would be created by passing the water under the railroad through a new culvert. That would require the County buy an easement south and west of the railroad to maintain a channel to protect the residences in the low lands.”Cal_Trans_Documents.pdf
The Trial Court erred in ignoring expert testomony "OCSD well pipe adding silt and debris during well operation" as OCSD has testified to discharging 4500 gallons of well water daily into this storm water drainage system!Judge Tangeman Exhibits presented to him during trial showing Caltrans County and OCSD aware of the risk posed by their improvements Safety!...
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The Trial Court erred as Caltrans' NPDES stormwater permit prohibits the discharge of wastes or wastewater from road sweeping vehicles or from other maintenance or construction activities to any surface waters or to any storm drain leading to surface water bodies. The Trial Court viewed the Videos and Photos of Caltrans actions! See Judge Tangeman Exhibits presented to him during trial showing Caltrans endangering public Safety!...
As in Arreola v. County of Monterey County trying to make a Deal ignoring public Safety of County residents .pdf County of San Luis Obispo knowing of theirs and Caltrans responsibilities for their drianage changes! This is a question for our State Representatives and news media to make public as seen in these documents.
The Trial Court erred as seen in the County's February 6, 2007 letter above. “As to the “fix” the defendants did agree that it does not make sense to resolve the plaintiff’s damage claim unless the problem has bee rectified. Otherwise, subsequent flooding will cause subsequent litigation.” The County's Attorney's previously stated July 18, 2006 "It remains my position that the County has a Right to allow its water to flow downhill and it is the responsibility of the downhill property owners to dispose of that water in an appropriate fashion." See Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. As to government liability! The February 2, 2009 Trial Court decision has taken away this ability to stand up to Constitutional Rights in California!
The Trial Court erred in exhibit #1816 showing Caltrans shoveling storm water debris into the Oceano Community's Storm Water drainage Channel outside of Catrans 4 FT Right of way changing the date of Stabilization with Caltrans Maintenance changes. As stated by the Trial Court "Mr. Fry testified that any work undertaken by Cal Trans employees in the channel to help clear the channel were most likely undertaken solely as a "good neighbor" practice by a "conscientious employee." Exhibit #579 withheld from discovery shows photo Exhibits of Caltrans removing debris until 2002! See PDF of Exhibits.County withholding evidence from discovery until December 2, 2008 of flooding before Hwy 1 Baughman Read the Baughman Questionnaire of County Drainage
Caltrans_with_County_of_San_Luis... OCSD_Attorney_Conflict_Phillips-... Hiring bookkeeper fiancee Judge_Final_Ruling_by_County_Feb... Decision February 2, 2009
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 OPENING 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 OPENING 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
State of California
Court of Appeal
Second Appellate District
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
California Rules of Court, rules 8.208, 8.490(i), 8.494(c), 8.496(c), or 8.498(d)
The following entities or persons have either (1) an ownership interest of 10 percent
or more in the party or parties filing this certificate (Cal. Rules of Court, rule 8.208(e)(1)),
or (2) a financial or other interest in the outcome of the proceeding that the justices should
consider in determining whether to disqualify themselves (Cal. Rules of Court, rule
8.208(e)(2)):
- William Bookout is the sole owner and proprietor of Oceano Nursery
Dated: October __, 2009 BELSHER & BECKER
By: ______________________
JOHN W. BELSHER
Attorneys for Plaintiff/Appellant WILLIAM
BOOKOUT dba OCEANO NURSERY
i
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).
///
///
3
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
4
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 Complaint.
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.
14
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
39
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
When our California Constitutional Rights are taken away from us and our property is taken for a dangerous public use, as Caltrans raising a State Highway and then shoveling and Grading Contaminated Storm Water Debris into a Storm Water Drainage Channel, it is our duty to make the public aware; especially when their public safety has been endangered! Please View Caltrans and County using State Hwy 1 for a storm water retention. The San Luis Obispo Superior Court has stated August 5, 2008 regarding the flooding of State Highway 1 and Oceano Nursery: "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance"
JAMES ARREOLA et al., Plaintiffs and Respondents, v. -- San Luis Obispo County Drainage Changes dating back to the early 1950's.
If the San Luis Obispo Superior Courts decision stands, then all California Inverse Condemnation case law will change
6.5.3 Property Historically Subject to Flooding
Public projects not related to flood control trigger strict liability when they cause water damage to property, even if it is historically subject to flooding.
A state highway backed up flood water onto plaintiffs' property. The appellate court concluded that the two sources of the rule of reasonableness--traditional private water law, and Professor Van Alstyne's balancing analysis--both weighed towards strict liability. First, traditional water law does not privilege downstream obstruction of flood water, as in the instant case. Second, Van Alstyne's public policy analysis only permits a reasonableness approach where a project's primary purpose is to protect plaintiffs' property. Here, the State's purpose in building the highway was to benefit the traveling public.Arreola v. Monterey County (2002) __Cal.App.4th__ [2002 Cal. App. LEXIS 4319].
Can a San Luis Obispo Superior Court Judge allow the County of San Luis Obispo to withhold evidence affecting public Health Safety with full knowledge of the documents that where withheld from discovery and trial? The County of San Luis Obispo withholding of evidence from discovery until December 2, 2008 should not be allowed!
Caltrans after trial shoveling storm water debris into the Oceano Communities storm water drainage channel as can be seen at http://www.oceanonurseryflooding.blogspot.com/ in video!
.JPG)
Oceano Nursery Contaminated Storm Water outside damage!
Two Feet plus of contaminated storm water in 2004
.JPG)
OCSD Well # 8 PVC pipe that Judge Tangeman stated: "In the case of OCSD, the evidence largely consisted of the construction of the drainage outfall from Well No. 8 In the vicinity of the culvert. While there was evidence of substantial amounts of water being discharged from well # 8, there was an absence of evidence that such discharges occurred contemporaneously with heavy rains and flooding problems."
OCSD Well # 8 debris dredged into the Oceano Communities drainage system.
OCSD Fire Department having to drive through flooded waters!
Superior Court Judge Martin J. Tangeman in his August 5, 2008 Trial Court decision regarding Caltrans Maintenance stated: "Mr. Fry testified that any work undertaken by Cal Trans employees in the channel to help clear the channel were most likely undertaken solely as a "good neighbor" practice by a "conscientious employee."
The San Luis Obispo Superior Court misheard the testimony as truly stated by Caltrans in the Court Reporters Transcripts: “I would imagine that the loader was working in the area. The employee who was running the loader was probably a conscientious employee and wanted to try to help.” Court Reporters Transcripts showing Caltrans intentionally shoveling debris into this drainage channel... November 26, 2008 photos of Caltrans actions after trial.
The State of California, Caltrans at trial Stated on page 920-921 of the Court Reportor's transcript, for July 14, 2008 regarding their shoveling dirt and debris inside the Oceano Community’s Storm Water drainage channel as seen above: “I’m not sure what they’re doing in this picture. It appears that they’re throwing dirt up on the bank at the base of the tree.” Question: “Is this anything related to the buildup of sediment at the mouth of the drainage channel?” Answer. “Well it’s more grass. Well, Yeah, sediment and grass.” Question: And where’s this material removed to when you engaged in this particular activity? Answer. “Based on the Mud behind me at the base of the tree, I would say we where throwing it up on the bank.” Question: So you were keeping it in the four feet that you consider to be Caltrans right-of-way? Answer. “YES” Question: And how often have you engaged – You or your staff engaged in the particular activity? Answer. “How often does it rain down there?” Question: Is it fairly often – Answer: “YES” Question: Based on the rainfall. Answer. “YES, just about every time it rains.” Judge Tangeman Exhibits presented to him during trial showing Caltrans endangering public Safety!...
Caltrans shoveling debris into drainage system!
Caltrans at drainage inlet, shoveling debris into storm water drainage channel
View Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Arreola v. Monterey County (6th Dist. June 25, 2002) 99 Cal.App.4th 722 [122 Cal.Rptr.2d 38]. Caltrans actions as seen in the video above goes against California Streets and Highway code sections 720-734 particular, section 725 (Prejudical error) Arreola v. Monterey shows “An entity with the power to control a project need not actively participate in it to suffer liability. Proof that an entity signed a contract assuming responsibility for the project, shared a common governance with an active participant, or provided an exclusive revenue source for the project, can establish control.”Arreola v. Monterey County (2002) Cal.App.4th[2002 Cal. App. LEXIS 4319].
Superior Court Judge Martin J. Tangeman has stated: "The "Date of Stabilization" approach does not apply in this case. The evidence showed that the last improvements made to the drainage systems were constructed by Pismo Oceano Vegetable Exchange ("POVE") in the late 1970s”
These maintenance actions by Caltrans have changed the Stabilization of this drainage channel. Caltrans has intentionally raised the State Highway in December 2000 changing the Stabilization of this drainage channel. Caltrans has then raised and lowered this State Highway in 2001, 2002, 2003, 2006 again changing the Stabilization. Caltrans was well aware of their changing the drainage stabilization of this drainage system with exhibit # 1757 a March 13, 1985 signed agreement with OCSD. Please view this evidence presented to the San Luis Obispo Superior Court in this PDF file!Caltrans_intentionaly allowing State Highway 1 to flood instead of west side of Oceano Documents.pdf The Residents of Oceano at this time payed in full $5,000.00 Dollars for Caltrans to take full responsibility for this drainage system used by Caltrans.These actions go against California Appeals Arreola v. Monterey County (6th Dist. June 25, 2002) 99 Cal.App.4th 722 [122 Cal.Rptr.2d 38 ----Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. These two Appeal case's show this Trial Courts Prejudicial Errors.
In Skoumbas v. City of Orinda as noted by the Court January 5, 2009 the Plaintiff Appealed the Courts Decision and Won showing government wrong doing! I have included this case as this shows inverse condemnation, causation and liability issues not addressed by the SLO Court.! Filed 7/31/08 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF ... Judge_Final_Ruling_by_County_Feb... misstates Skoumbas v.City of Orinda 371-375 "The City argues for some type of whole ownership rule, asserting that an entire drainage system must be a public improvement in order to find a government agency liable in inverse condemnation for downstream damage caused by diverted surface water. Such a whole ownership requirement is not found in the standard that applies to cases asserting inverse condemnation as a result of diverted surface water, and is belied by the facts in the leading cases in this area. (See, e.g., Locklin v. City of Lafayette, supra, 7 Cal.4th at pp. 371-375 [discussing liability of the city, Caltrans, BART, the county and flood control district]; id. at p. 378 (conc. opn. of Mosk, J.).) We will not adopt such a rule.[1]"
These maintenance actions by Caltrans have changed the Stabilization of this drainage channel. Caltrans has intentionally raised the State Highway in December 2000 changing the Stabilization of this drainage channel. Caltrans has then raised and lowered this State Highway in 2001, 2002, 2003, 2006 again changing the Stabilization. Caltrans was well aware of their changing the drainage stabilization of this drainage system with exhibit # 1757 a March 13, 1985 signed agreement with OCSD. Please view this evidence presented to the San Luis Obispo Superior Court in this PDF file!Caltrans_intentionaly allowing State Highway 1 to flood instead of west side of Oceano Documents.pdf The Residents of Oceano at this time payed in full $5,000.00 Dollars for Caltrans to take full responsibility for this drainage system used by Caltrans.These actions go against California Appeals Arreola v. Monterey County (6th Dist. June 25, 2002) 99 Cal.App.4th 722 [122 Cal.Rptr.2d 38 ----Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. These two Appeal case's show this Trial Courts Prejudicial Errors.
In Skoumbas v. City of Orinda as noted by the Court January 5, 2009 the Plaintiff Appealed the Courts Decision and Won showing government wrong doing! I have included this case as this shows inverse condemnation, causation and liability issues not addressed by the SLO Court.! Filed 7/31/08 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF ... Judge_Final_Ruling_by_County_Feb... misstates Skoumbas v.City of Orinda 371-375 "The City argues for some type of whole ownership rule, asserting that an entire drainage system must be a public improvement in order to find a government agency liable in inverse condemnation for downstream damage caused by diverted surface water. Such a whole ownership requirement is not found in the standard that applies to cases asserting inverse condemnation as a result of diverted surface water, and is belied by the facts in the leading cases in this area. (See, e.g., Locklin v. City of Lafayette, supra, 7 Cal.4th at pp. 371-375 [discussing liability of the city, Caltrans, BART, the county and flood control district]; id. at p. 378 (conc. opn. of Mosk, J.).) We will not adopt such a rule.[1]"
Skoumbas v. City of Orinda cited Keys v. Romley at the bottom in which showed. "The Keys court declared that surface water cases should not be decided by an unvarying rule, but rather by the facts of the particular case, as determined by a jury.” Filed 12/21/01 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF ... - other developments[PDF]
County of San Luis Obispo Document withheld from Discovery.
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Evidence_Exhibits_presented_to_Judge Tangeman Baughman Property flooding Exhibit # 1278, 1337, 1338... Exhibits presented to the Court 1278 shows a train de-railment with the OCSD pipe directly in the Railroads drainage pipe inlet! Exhibit #1337 dated during a storm event in 2002 shows the OCSD pvc pipe directly in the Railroad drainage inlet pipe with a water line on the pipe showing Oceano Nursery not flooding. Exhibit # 1338 is immediatly after a rain event showing debris blocked at the OCSD PVC pipe with the OCSD pipe in the Railroads storm water pipe inlet!
Bookout_-_Public_Record_Request_... After trial for documents withheld from discovery by County of San Luis Obispo. Photos of Caltrans maintaining Storm water drainage channel in 2002 and OCSD Director Baughman Property flooding west of State Highway 1 as stated in questionnaire redacted by County his name and address. County changed his statement in their drainage survey from 2002!
The Trial Court erred with allowing the County of San Luis Obispo withholding and changing of evidence Defendant_County August 22, 2008_of_SLO_Oppositi... County of San Luis obispo chose not to provide all requested information in discovery until December 2, 2008 several months after trial showing why the County and Caltrans were using State Highway 1 13th and Paso Robles Streets along with Oceano Nursery for storing contaminated storm water.
County of San Luis Obispo Documents withheld from Discovery by the County of San Luis Obispo--Exhibit # 579
County of San Luis Obispo Documents withheld from Discovery by the County of San Luis Obispo--Exhibit # 579
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Judge Tangeman Stated page 1226 regarding the photo evideence above witheld from disciovery by the County of San Luis Obispo “Another question is, I’m not sure we laid a foundation as to anything more than the first page. I don’t know what the second
and third pages are.” Page 1227 The Court States “Oh, I think a foundation was laid
as to pages 1 and 2. I do note that page 2 is referenced in page 1. But page 3 we
didn’t address.” The Railroad then states: “And for the purpose of the exhibits
we don’t need the photographs.” The Court “All Right------
Judge_Mullaney_Judgement_Februar... Blames POVE 100%. Under Causation the Skoumbas case, citing Locklin v. Lafayette (1994) 7 Cal. 4th 327, 367 added --leaving out Belair, Lockilin and Bunch embody policies that recognize inverse condemnation!
In Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. As cited to the Trial Court. “We conclude that 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.”Judge Tangeman Exhibits presented to him during trial showing Caltrans County and OCSD aware of the risk posed by their improvements Safety!...
Exhibit #1758 easment, along with Caltrans Drainage changes Exhibits 1554-1622, 1766, 1767, February 5, 1999 drainage meeting Fred Brebes Exhibit #1767 County_Discovery_Abuse_Baughman
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Caltrans Raising State Highway 1!
The Trial Court erred regarding Inverse Condemnation and "date of Stabilization" with the evidence above. The San Luis Obispo Court has ignored our California Constitution (Property Rights Article I Section 19) The Trial Court Stated "Finally,the Court does not find a factual basis to impose liability based upon allegedly increasing elevations of Highway 1 resulting from overlay projects. First, the evidence was mixed at best as to weather the absolute elevation of Highway 1 changed in a substantial way as a result of the "remove and replace" projects." Caltrans had previously addressed their drainage at this location and were aware of their actions as seen in Exhibit # 579 "Overlay From Caltrans in 2001 on HWY 1." At Trial an in exhibits drainage changes by Caltrans are seen in 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008 showing no Stabilization! The County of San Luis Obispo withheld part of their knowledge of these drainage changes from discovery Exhibit # 579 states: "Caltrans raising Highway 1 at 13th Street (summer 2002) Contributing to elevated flooding (inability for water to cross roadway) on northeast side of Highway 1 (at Oceano Nursery)"County withholding evidence from discovery until December 2, 2008 of flooding before Hwy 1 Baughman
Catrans grading debris into their four foot right-a -way
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Superior Court Judge Teresa Estrada-Mullaney in her February 2, 2009 Judgment Decision "Notice of Judgment" States: "Judge Tangeman determined the flooding problem was "static" for several years prior to Plaintiff's purchase of his property. Plaintiff contends the flooding is continuous and can be abated. Plaintiff argues Defendants negligent maintenance of the drainage system increases the frequency and severity of the flooding. That is inconsistent with Judge Tangeman's determination that the primary culprit was POVE's improvements, rather than negligent maintenance of the drainage system. There was no showing that Union's operation of Well No. 8 contributed to the blockage. There was no showing of the County's responsibility for maintaining the drainage channel. There was no evidence that any accumulated debris in State's right of way contributed to the problems in the operation of the drainage system. County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" View Judge Tangeman Exhibits presented to him during trial showing Caltrans, County and OCSD continuous and repeated conduct endangering public Safety, with no Stabilization in this drainage system pdf...
OCSD at trial July 10, 2008 acknowledged that this type of discharge runs back to State Highway 1! View Photo Exhibit #1342 presented to Judge Tangeman of OCSD Drainage Improvements, changes and"obstacles" dredging 4500 Gallons of their Well #8 Water and debris into the Railroads Storm Water Drainage channel daily. This is a substantial cause of how debris gets packed into the Railroads storm water drainage system. The County Health Department has approved this according to OCSD P. 85 July 10, 2008 testimony. See Exhibit Evidence_presented_to_Judge Tangeman showing the effects of OCSD pipe during storms# 1278, 1337, 1338.1342..
Judge Tangeman erred in his August 5, 2008 decision regarding Cal Trans as he States: "There Was Insufficent Evidence To Hold The State of California Liable For Inverse Condemnation" The Court then States. "Nor was there substantial evidence that debris accumulated within the State's right-of-way (as opposed to the debris accumulated on private property outside the boundaries of the right-of -way) contributed in any meaningful way to the problems in the operation of the drainage facilities on Railroad and POVE properties." SeeTrial Exhibits seen by Judge Tangeman...
Judge Martin J. Tangeman in his August 5, 2008 decision stated: "Plaintiff also alleged that OCSD should be liable because its outfall pipe acted as a dam to capture debris in times of flooding, and/or that at times of discharge from its outfall pipe, debris may have been pushed into the culvert." "In each of these cases, the Court finds that the evidence is too speculative to support liability for inverse condemnation. No studies were undertaken or evidence provided showing the effect, if any, of either of these factors during times of flooding." These photos evidence were presented to the Trial Court showing the Nursery not flooding in December 2002 with this OCSD pipe damming debris! The Trial Court Stated this Pipe was not in this drainage channel is wrong as seen in these photos. View exhibit evidence presented to Judge tangeman... Recent Developments in Inverse Condemnation Law
The Trial Court Erred in ignoring P. 55 of the July 10, 2008 trial transcript with OCSD requesting of the County of San Luis Obispo to change the drainage system used by the County, Caltrans and Railroad Exhibit # 1756 The Oceano Community Service District Letter to The County of San Luis Obispo and Southern Pacific Railroad April 21, 1983 stated in Quotes "This Channel has been protected by use of a culvert that would conduct surface waters under Southern Pacific tracks to what may be a bunker under the loading docks of the Pismo-Oceano Vegetable Exchange (POVE) . The water, then, might flow to a small retention basin maintained by POVE."Caltrans and County using State Hwy 1 for a storm water retention basin Exhibit #1756 OCSD Prescriptive Easment.
"Because this is an established drainage channel. The District feels that its full design capacity should be available for use. Reserch, however has not clearly revealed the agency responsible for the maintenance of the channel. Consequently , we have no idea the condition of the channel and wheather, in its present state of maintenance, it can adequately carry the quantity of water that will be discharged. The District is therefore notifying all those agencies that may be involved in the channel's maintenance of its possible impending use and the degree to which it may be used."
The Trial Court in their quote "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" Erred in ignoring P. 55 of the July 10, 2008 trial transcript with Oceano Community Service District requesting of the County of San Luis Obispo to change the drainage system used by the County, Caltrans and Railroad Exhibit # 1756 The Oceano Community Service District Letter to The County of San Luis Obispo and Southern Pacific Railroad April 21, 1983 stated in Quotes "This Channel has been protected by use of a culvert that would conduct surface waters under Southern Pacific tracks to what may be a bunker under the loading docks of the Pismo-Oceano Vegetable Exchange (POVE) . The water, then, might flow to a small retention basin maintained by POVE."Caltrans and County using State Hwy 1 for a storm water retention basin Exhibit #1756 OCSD Prescriptive Easment. "Because this is an established drainage channel. The District feels that its full design capacity should be available for use. Reserch, however has not clearly revealed the agency responsible for the maintenance of the channel. Consequently , we have no idea the condition of the channel and wheather, in its present state of maintenance, it can adequately carry the quantity of water that will be discharged. The District is therefore notifying all those agencies that may be involved in the channel's maintenance of its possible impending use and the degree to which it may be used."
The Trial Court erred with Exhibits 1874 and 1875--County Building and Construction Permits-This is where the County of San luis Obispo required the Oceano Community's Storm Water Retention pond changed March 27, 1985 after the County approved POVE to use the retention pond December 13, 1984 after OCSD had informed the County that POVE could not use the Sanitary Sewer system for wash water from POVE vegetables. The County's letter December 26, 1984 talks about County of San Luis Obispo hazard to health toxic pesticide in a storm water retention. "To be sure there is no hazard to health from possible concentrated amounts of toxic pesticide, we will require a written approval by the County health Department of this on-site retention basin." Please ask questions of Regional Water Quality Control Board?
These are quotes from Exhibits presented to the Trial Court exhibit # 1785 May 14, 1987 This is after the County had required drainage improvement changes in 1985 on Railroad property for the retention pond used by the County, Caltrans and OCSD after issueing building permits to POVE! “We decided that there were two basic solutions to the problem. They are:” “# 2 Construct a detention or retention basin above the Railroad on their property and leave the existing culvert as is.” “Tim Smith and Glenn Priddy we discussed the flooding problems that would be created by passing the water under the railroad through a new culvert. That would require the County buy an easement south and west of the railroad to maintain a channel to protect the residences in the low lands.”Cal_Trans_Documents.pdf
The Trial Court erred in ignoring expert testomony "OCSD well pipe adding silt and debris during well operation" as OCSD has testified to discharging 4500 gallons of well water daily into this storm water drainage system!Judge Tangeman Exhibits presented to him during trial showing Caltrans County and OCSD aware of the risk posed by their improvements Safety!...
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The Trial Court erred as Caltrans' NPDES stormwater permit prohibits the discharge of wastes or wastewater from road sweeping vehicles or from other maintenance or construction activities to any surface waters or to any storm drain leading to surface water bodies. The Trial Court viewed the Videos and Photos of Caltrans actions! See Judge Tangeman Exhibits presented to him during trial showing Caltrans endangering public Safety!...
As in Arreola v. County of Monterey County trying to make a Deal ignoring public Safety of County residents .pdf County of San Luis Obispo knowing of theirs and Caltrans responsibilities for their drianage changes! This is a question for our State Representatives and news media to make public as seen in these documents.
The Trial Court erred as seen in the County's February 6, 2007 letter above. “As to the “fix” the defendants did agree that it does not make sense to resolve the plaintiff’s damage claim unless the problem has bee rectified. Otherwise, subsequent flooding will cause subsequent litigation.” The County's Attorney's previously stated July 18, 2006 "It remains my position that the County has a Right to allow its water to flow downhill and it is the responsibility of the downhill property owners to dispose of that water in an appropriate fashion." See Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. As to government liability! The February 2, 2009 Trial Court decision has taken away this ability to stand up to Constitutional Rights in California!
The Trial Court erred in exhibit #1816 showing Caltrans shoveling storm water debris into the Oceano Community's Storm Water drainage Channel outside of Catrans 4 FT Right of way changing the date of Stabilization with Caltrans Maintenance changes. As stated by the Trial Court "Mr. Fry testified that any work undertaken by Cal Trans employees in the channel to help clear the channel were most likely undertaken solely as a "good neighbor" practice by a "conscientious employee." Exhibit #579 withheld from discovery shows photo Exhibits of Caltrans removing debris until 2002! See PDF of Exhibits.County withholding evidence from discovery until December 2, 2008 of flooding before Hwy 1 Baughman Read the Baughman Questionnaire of County Drainage
Caltrans_with_County_of_San_Luis... OCSD_Attorney_Conflict_Phillips-... Hiring bookkeeper fiancee Judge_Final_Ruling_by_County_Feb... Decision February 2, 2009
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 OPENING 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 OPENING 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
State of California
Court of Appeal
Second Appellate District
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
California Rules of Court, rules 8.208, 8.490(i), 8.494(c), 8.496(c), or 8.498(d)
The following entities or persons have either (1) an ownership interest of 10 percent
or more in the party or parties filing this certificate (Cal. Rules of Court, rule 8.208(e)(1)),
or (2) a financial or other interest in the outcome of the proceeding that the justices should
consider in determining whether to disqualify themselves (Cal. Rules of Court, rule
8.208(e)(2)):
- William Bookout is the sole owner and proprietor of Oceano Nursery
Dated: October __, 2009 BELSHER & BECKER
By: ______________________
JOHN W. BELSHER
Attorneys for Plaintiff/Appellant WILLIAM
BOOKOUT dba OCEANO NURSERY
i
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).
///
///
3
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
4
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 Complaint.
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.
14
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
39
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
