California Supreme Court--Inverse Condemnation Caltrans Steve Price, deputy district director for area operations and maintenance talks about the fix of the flooding of State Highway 1 would showing that this flooding can be abated!...
Supreme Court Of California
The Second Appellate Court of California Changes California Case Law Bookout et al. v. State of California Dept. of Transportation Court of Appeal Opinion:
[PDF] Filed 6/28/10 Modified and certified for publication 7/28/10 (order attached)
Supreme Court Of California Appeal Brief Bookout v. State of California S...
The Second Appellate Court of Californa changes Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848
The Supreme Court Of California needs to review why the Second Appellate Court Does Not Feel that Exhibit # 1756 Is Causation or a change in the Date of Stabilization with our State Highway 1 Flooding! This OCSD Well # 8 Pipe Dredging Debris every day into this County, State, OCSD Storm Water Drainage Channel Should Not Be Permanent or Legal In the State of California for Government USE! The Supreme Court Of California will have to make a ruling as to if this use is legal in California. Are California Judges allowed to withhold evidence from trials as talked about by Judge Martin J. Tangeman after trial? Why does Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848 No longer have any merit in California?
The Second Appellate Court Justices--Steven Z. Perren, Kenneth R. Yegan and Arthur Gilbert State on P. 2 and 3 of their July 28, 2010 published California Case law Decision; State: "The Oceano Community Services District (District) owns a water well. From time to time, the well discharges water into the drainage channel that leads to the culvert under the rail bed. Exchange employee, Dan Sutton, testified Bookout discussed the flooding with him shortly after the nursery opened. District employee, Phillip Davis, testified Bookout complained about flooding every time it rained. Davis recalled receiving a complaint from Bookout about flooding in December 2002. Davis's daily log for that year makes reference to a meeting with 3
Bookout on December 20, 2002. Bookout took a picture of the pipe going into the drainage channel in the aftermath of a rain event in 2002. The picture included a District employee. Caltrans employee, Fred Brebes, testified that before he retired in 2002 he met with Bookout about damage to his property due to flooding." Exhibit # 1768 mentioned above by the Appellate Court shows that there is no Date of Stabilization
Please review the following websites: www.governorarnoldschwarzenegger.net
www.inversecondemnation.net www.californiasupremecourt.info
www.californiasupremecourts.com www.secondappellatecourt.com www.oceanonursery.com www.supremecourtofcalifornia.com www.supremecourtcalifornia.com www.supremecourtjustices.net
www.heritageoaksbankquestions.com www.unitedstatessupremecourt.net
www.governormegwhitman.co www.unitedstatessupremcourt.com
www.governorbrown.net www.lieutenantgovernorabelmaldonado.com
www.senatorsamblakeslee.com www.governorjerrybrown.net
www.governormegwhitmancalifornia.com www.assemblymankatchoachadjian.com www.governorabelmaldonado.com
www.californiasupremecourt.co
Justices--Steven Z. Perren, Arthur Gilbert and Kenneth R. Yegan State:
"Bookout points to no findings of fact in his favor. Instead, he relies on over 500 photographs and videos showing the flooding, several hundred documents which he claims show each defendant exercised dominion and control over the drainage facilities, and the testimony of his expert engineer, Keith Crow. He believes the evidence against the defendants was overwhelming.
Bookout claims the evidence is
credible because it is uncontradicted. He cites Joseph v. Drew (1950) 36 Cal.2d
575, 579, for the proposition that uncontradicted testimony of a witness may not
be disregarded, but should be accepted as proof of the fact to which the witness
testified. Indeed, there are no doubt cases where the uncontradicted testimony
of a witness is so credible that no reasonable trier of fact could reject it.
But this is not such a case.
Here
there is an obvious cause of the flooding. The Exchange modified the drainage by
constructing a junction box and pipeline that redirected the flow of water by 90
degrees."
The Second Appellate Court Justices--Steven Z. Perren, Arthur Gilbert and Kenneth R. Yegan are fully aware of Judge Martin J. Tangemans exhibits/statements in his August 5, 2008 inverse condemnation decision on P. 7 per photo exhibits # 1278-1337 and 1338 of this OCSD pipe directly inside the Railroad Culvert! They now allow Government to block and dam storm water drainage systems as seen in these exhibit photos! Photo Evidence/Exhibits presented to Judge Martin J. Tangeman 1278-1337-1338 pdf...
The Supreme Court Of California will need to review the Oceano Community Service District-and-Union Pacific Rail Road Exhibit # 1756 to the Second Appellate Court-As Stated:-"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 whether, in its present state of maintenance, it can adequately carry the quantity of water that will be discharged."
Flooding Photo in 2002 complained about to Caltrans and the Oceano Community Service District. fixed December 20, 2002---Caltrans and OCSD corrected this drainage problem as seen in APPELLANT’S REPLY BRIEF Exhibit # 1768 as stated by OCSD "I had to meet with Bill Bookout and a couple of guys from cal trans about the 6 inch line from well 8 that ends at the culvert by the railroad tracks. I had Dan saw off the 6 inch pipe and end it in front of the culvert so that there will be no danger of the pipe plugging debris at the entrance to the culvert." The Next OCSD log of this drainage system is February 9, 2004 before the first flooding of Oceano Nursery. OCSD States: "Then Joe had him cleaning out the drainage ditch by the railroad track down at 13th and Front Street"
The Supreme Court Of California will need to review this video presented to Judge Martin J. Tangeman and the Second Appellate Court Justices--Steven Z. Perren, Kenneth R, yegan and Arthur Gilbert. The Second Appellate Court in their July 28, 2010 Inverse Condemnation Decision believes this Government use is legal in California!
1:16 The California Second Appellate Court Justices--Steven Z. Perren Kenneth R. Yegan and Arthur Gilbert Ignore California Case law as seen in this video presented to them and Superior Court Judge Martin J. Tangeman, per Akins v State (1998) 61 Cal.App.4th 1, Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, Belair v. Riverside County Flood Control District (1988) 47 Cal.3d 550, Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848, Lyles v. State of California (2007) 153 Cal.App.4th 281, Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596, Skoumbas v City of Orinda (2008) 165 Cal.App.4th 783, Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.)
Oceano Community Service District Well # 8 January 13, 2007
Video Presented to Judge Martin J. Tangeman now seen on YOUTUBE for all California Residents knowledge of Inverse Condemnation! Skoumbas v City of Orinda (2008) 165 Cal.App.4th 783
County Of San Luis E-Mail Deal and Withholding of Evidence
The Second Appellate Court has allowed Caltrans to Raise and flood State Highway 1 13th and Paso Robles Streets in Oceano California since 2000 and then Grade and shovel debris into the Oceano Communities Storm Water Drainage Channel putting blame on a produce company for 1977 construction on Union Pacific Rail Road property! They Allow withholding of evidence stating "The Trial Court did not abuse its discreation."
Judge Martin J. Tangeman stated in a request for rehearing for a new trial about this evidence withheld from discovery and at the time of trial pertaining to Brebes and Davis statements September 12, 2008.---"No further information was forthcoming and now the questionnaires are here I guarantee they are voluminous, I haven't even read through all of them." "But I think it's imcumbent to demonstrate to the court exactly which factual assertation and which witness would actually produce evidence which would result in a basis for a new trial." County Discovery Abuse Brebes--Sutton per the Baughman Property--Highway 1 PDF File...
Lieutenant Governor, Abel Maldonado stated in a letter May 12, 2009
"I hope that you continue to seek legal counsel and that this very difficult situation will be resolved soon."
Being an elected OCSD Director--Whistleblower in California Per the flooding of our State Highway-as seen in this March 1, 2007 E-Mail to Scott Radovich and the February 6, 2007 Clayton U. Hall letter To: Ms. Mauri McGuire, Carl Warren & Company CC-Rita L. Neal ESQ--Debra A Hessli-Risk Manager County of San Luis Obispo--Trying to Make A Deal in regards to the Evidence that they Withheld From Discovery involving their County Insurance. Plus their Documents presented to Judge Tangeman showing that Flooding Could Be Abated for $43,295.00---pdf County December 18, 2006 Statement-("Potentially Dangerious Situation") involves public safety to our Pacific Ocean!
Caltrans, County of San Luis Obispo and OCSD. 
California State Highway Patrol Put in Danger with flooding--Toxic Waste
The Second Appellate Court Justices--Steven Z. Perren, Kenneth R. Yegan and Arthur Gilbert do not believe as seen in the video above, that the County, and Caltans storm water from State Highway 1 --13th and Paso Robles Streets inside the Oceano Nursery property is the use of a "Public Enity Physically entered Bookout's land or maintained possession and control over any portion of it." They Believe--"The Trial Court correctly concluded the three-year statute applies." The Second Appellate Court States this even after seeing photos and videos and hearing Caltrans testomony of their shoveling and grading Caltrans storm water debris into the Oceano Community's storm water drainage channel!
The Second Appellate Court Justices--Steven Z. Perren, Kenneth R. Yegan and Arthur Gilbert Ignore what is stated in Lyles per (Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848, 857-858 (Lee).) "ongoing activities of the public entity related to construction of a public work of improvement. In other words, it was the deliberate and ongoing conduct of the entity in the course of construction that had caused, and would continue to cause, damage to the property." Caltrans raising State Highway 1 from 2000 to 2006 and OCSD drainage changes in 2001 per exhibit # 1768 and then their fix in December 2002 from complaint in exhibit # 579
"Plaintiffs urge that the statute of limitations did not begin because their property suffers continuous and repeated damage that has not stabilized. (Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848, 857-858 (Lee).) According to plaintiffs, State has never modified the essential condition of the culvert and, thus, the condition continues to threaten their property. There is no merit to this point. In Lee, the county transportation authority began constructing the Metro Rail Red Line underneath Hollywood Boulevard in 1992. The plaintiff observed that water had accumulated on or around her Hollywood Boulevard property in 1995. She suspected that plumbing in her building was the source of the problem and informed her insurance carrier. An inspection determined that the city’s water pipes were undermining the sidewalk and Hollywood Boulevard. At that point, there had been no apparent damage to plaintiff’s building. In 1996, the sidewalks and roadbed directly in front of plaintiff’s property buckled. The plaintiff notified a city inspector about her observations and requested the city to address the pipe problem because it was affecting her business. FEMA told her that earthquake was not the cause of the pipe problem. In 1997, a city building inspector told the plaintiff that the problem was not on her property but that the damage could be related to activities of the transportation authority. The plaintiff then received geological and engineering reports from experts she had hired. The reports concluded that the damage to her building was caused by subway construction activities and recommended that mitigation measures include a new foundation. Throughout the 9 fall of 1997, the plaintiff had contact with the transportation authority’s insurance adjustors. She filed her inverse condemnation and related tort action against the transportation authority in May 2000 alleging that her property had been damaged by ongoing construction of the subway. The transportation authority demurred on statuteof- limitation grounds. The parties accepted that the inverse condemnation action accrued when the plaintiff either knew or reasonably should have known of the damage to her property. The trial court sustained the demurrer. But the court reversed after relying on Pierpont Inn, Inc. v. State of California (1969) 70 Cal.2d 282, disapproved on another ground in Los Angeles County Metropolitan Transportation Authority v. Continental Development Corp. (1997) 16 Cal.4th 694, and Stonewall Ins. Co. v. City of Palos Verdes Estates (1996) 46 Cal.App.4th 1810.
It held that, where property damage incident to a work of public improvement is continuous and repeated, the limitations period does not begin to run until the damage has “stabilized.” (Lee, supra, 107 Cal.App.4th at pp. 856- 857.) The court based its holding on plaintiff’s allegation that the “construction of the subway rail system ‘is and/or will be continuing in the future’ [and that the] ‘[t]he ongoing construction has damaged and Plaintiffs are informed and believed will continue to damage Plaintiff’s businesses and properties’ ” by activities that did cause and “ ‘will continue to cause ongoing interference’ ” with plaintiff’s use of the property. (Id. at p. 858.) The court concluded that the “plaintiff ha[d] adequately alleged a continuous and repeated course of conduct causing damages to her property, which had not stabilized at the time” the action was filed. (Ibid.) The key distinction between this case and Lee is that Lee involved alleged damage caused by the ongoing activities of the public entity related to construction of a public work of improvement. In other words, it was the deliberate and ongoing conduct of the entity in the course of construction that had caused, and would continue to cause, damage to the property.
March 1, 2007 E-Mail "It is unfortunate that i'm the one that has to be the whistleblower on the County/State/OSD-Cover-up. This has had a Defamation on my reputation, tremendous financial losses and caused a stigma on my Business that will last forever. You initially took this case on a inverse condemnation assumption and I still feel, that's the case. P.O.V.E. and Union Pacific is purely irresponsible and negligent."
March 1, 2007 E-Mail County in 2007 Withholding of Evidence! "The County Of San Luis Obispo has withheld key information regarding flooding and prior actions of other agencies this has cost the County Tax payers thousands of dollars as drainage studies have been done without this information being provided."
Video --
The Second Appellate Court has ruled July 28, 2010 that this 2001-2002 Oceano Community Service District drainage change is not Causation of our State Highway Flooding! The Appellate Court has seen the videos of this OCSD pipe inside a storm water drainage channel discharging well water and debris daily into a storm water drainage system used by the County, Caltrans, OCSD and Union Pacific Rail Road! The Appellate Court States: "Plaintiff brought this action against a number of public entities and a railroad claiming the defendants caused his property to flood when it rained. The complaint alleged inverse condemnation and tort causes of action. The inverse condemnation cause of action was tried to the court. After plaintiff's case, the trial court granted nonsuit based on the statute of limitations, failure to prove causation, and a determination that the railroad is not a public entity. Thereafter, the defendants moved for judgment on the pleadings on the tort causes of action. The court granted the motion based on the trial court's previous finding of lack of causation and the statute of limitations. We affirm."
Second Appellate Court-Inverse Condemnation 
Train Wreck
Jun 28 2010
B214906
[PDF] [DOC]
Bookout v. State ex rel. Dept. of Transportation CA2/6 filed 6/28/10 
The Second Appellate Court allows withholding of evidence as talked about by Judge Martin J. Tangeman September 12, 2008 and believe's that it is OK for Caltrans to Grade and Shovel Storm Water debris into this California storm water drainage system after Caltrans raised State Highway 1 a foot! The Second Appellate Court beleives that the flooding of our State Highway cannot be abated! The Second Appellate Court believes that this flooding is caused by Pismo Oceano Vegetable Exchange in 1977 construction and that their is no government Liability for Caltrans, County and OCSD drainage changes since 1977! The Second Appellate Court does not take into account that this POVE construction was over seen and permitted by the County Of San Luis Obispo. The Second Appellate Court ignores the fact that the County of San Luis Obispo required the outlet of this drainage system raised in 1985 County Building permits!
The Second Appellate Court Justices--Steven Z. Perren, Kenneth R. Yegan and Arthur Gilbert State on P. 6 and 7 ignoring documents from Brebes and Davis prior to State Highway 1 flooding--(Fountain Ave-Airpark Dr)! "Bookout argues the trial court erred in receiving documentary evidence that was not produced during discovery. The document is a county drainage study questionnaire returned by Bookout in July 2002. Bookout stated on the questionnaire that the area floods one foot or more once a year and that the flooding has damaged his inventory."
The Second Appellate Court call this a (Single) document instead of what Judge Martin J. Tangeman Stated September 12, 2008 in regards to some of these (Redacted) whiteness statements, questionnaires and evidence withheld from discovery below! "No further information was forthcoming and now the questionnaires are here I guarantee they are voluminous, I haven't even read through all of them." "But I think it's imcumbent to demonstrate to the court exactly which factual assertation and which witness would actually produce evidence which would result in a basis for a new trial." County Discovery Abuse Brebes--Sutton per the Baughman Property--Highway 1 PDF File...
The California Second Appellate Court Justices--Steven Z. Perren Kenneth R. Yegan and Arthur Gilbert have Ruled the actions Above and below are now Permanent and legal in California, per their Appellate Court Decision June 28, 2010! Each Justice is fully aware, that this flooding can be abated for only $43,295.00 Exhibit # 1790. They are aware of the documents above and below withheld from Discovery Exhibit # 579. They are aware of the OCSD Exhibit # 1756-Prescriptive Easement daily use of this drainage system for 2500 hundred gallons per minute of well water discharge as seen in this 1983 letter to the County of San Luis Obispo Rail-Road taking this drainage system. They are aware of the Video's of this pipe discharging debris into this drainage system since 2001 per exhibit # 1768! The County 1985 Approved and permitted--RR/POVE pond--mentioned on P. 2 and P. 6-Video P. 8 of their Appellate Court decision! They are aware of documents withheld by the County Of San Luis Obispo P. 6 and P. 7! The Appellate Court is aware that this drainage course was not changed by POVE per Caltrans Drainage Documents December 17, 1973 Exhibit # 1772 (Prejudicial Error) (Accrual Date) (Causation)
County of San Luis Obispo and Caltrans Liability to the Pacific Ocean
Plane Crashes San Luis Obispo County Airport Oceano-Flooding Second Appellate Court-Inverse Condemnation The County of San Luis Obispo Exhibit # 579 Documents withheld from discovery show how this drainage once traveld to the Oceano Airport in 2002 as stated in these County Questionnaires! These documents will ultimatly close the Oceano Airport when Caltrans and the County San Luis Obispo end using State Highway 1 for Storm Water Retention!
YOUTUBE County Of San Luis E-Mail Deal and Withholding of Evidence
California State Government (Caltrans, County, OCSD) should not be allowed to use our storm water drainage channels for their Debris and Well Water! These videos above were presented to Judge Martin J. Tangeman and the Second Appellate Court! Please read the following two PDF files regarding San Luis Obispo County and OCSD actions during discovery!
County of San Luis Obispo--Trying to Make A Deal in regards to the Evidence that they Withheld From Discovery involving their County Insurance. Plus their Documents presented to Judge Tangeman that Flooding Could Be Abated---pdf
OCSD Attorney Conflict Robert Weeks--Fiancee/Wife Was Oceano Nursery Bookkeeper that the Oceano Community Service District Hired knowing this Fact!---OCSD Directors Full Knowledge of Their Action!. pdf..
The Second Appellate Court does not find an (Abuse of Discretion) in their June 28, 2010 decision P. 6 and 7 or, that it is a Prejudicial Error for the County of San Luis Obispo-or Union Pacific Railroad to withhold 150 Oceano/County whiteness-plus photo/Questionnaires/ documents from discovery until after trial July 30, 2008! They allow Superior Court Judge Martin J. Tangeman to withhold photo attachments that went with Exhibit # 579 showing Caltrans maintaining the Oceano Communities Storm Water Drainage Channel--Raising State Highway 1 and blocking drainage on the East Side of State Highway 1!. The Second Appellate Court does not find this to be a Prejudicial Error in California!
The Second Appellate Court States Page. 7 and 8 of their June 28. 2010 decision "Even if the trial court erred in applying the statute of limitations, the trial court found that Bookout failed to carry his burden of proof as to causation in his action against the District, the County and Caltrans. Plaintiff has the burden of proving a substantial causal relationship between the defendant's act or omission and the injury. (California State Automobile Assn. v. City of Palo Alto (2006) 138 Cal.App.4th 474, 481.) To carry that burden plaintiff must exclude the probability that other forces alone produced the injury. (Ibid.) " These YOUTUBE videos below show (Causation) Each State Senator and State Assembly Member is fully aware of these videos and Caltrans, County, OCSD use of this drainage system!Train Wreck 
State Highway Patrol put in danger by Caltrans! Railroad Train Wreck
Video talked about by the Appellate Court----Oceano Train Wreck as seen in photo exhibits withheld from discovery by the County Of San Luis Obispo in exhibit # 579! Caltrans Caught shoveling and grading debris into storm water drainage channel as seen by the California Second Appellate Court and San Luis Obispo Superior Court Judge Martin J. Tangeman!
State Highway Patrol put in danger by Caltrans! Railroad Train Wreck 
California State Senators--State Assemblymembers knowledge of Caltrans, County of San Luis Obispo-Inverse Condemnation, affecting Public Health and Safety of our State Highway along with Photo/Statements and Documents withheld by County Of San Luis Obispo And Union Pacific Railroad at trial as allowed by Judge Tangeman, as Judge Tangeman Stated "All Right" --Prejudicial Error--
The Appellate Court is aware of their June 23, 2010 decision, which exercised dominion and control over the private drain as seen in Barrett v. County of Ventura CA2/6 filed 6/23/10 PDF]
"For liability to be imposed on a public entity for a dangerous condition of public property, the entity must be in a position to protect against or warn of the hazard." (Mamola v. State of California ex rel. Dept. of Transportation, supra, 94 Cal.App.3d at p. 788.) County of San Luis Obispo--Trying to Make A Deal in regards to the Evidence that they Withheld From Discovery involving their County Insurance. Plus their Documents presented to Judge Tangeman that Flooding Could Be Abated---pdf
Caltrans, County, Oceano Community Service District were each aware from their documents that State Highway 1 Drainage could be abated for only $43,295.00 As seen in the PDF file above per Appellate Court Exhibit # 1790
The Second Appellate Court ignored (Marin v. City of San Rafael) and their Statement in their June 23, 2010 decision and the Railroads and Our exhibits # 1756, 1874, 1875 "The taking of private property for the purpose of constructing storm drainage systems has been recognized to be for a public use. (Marin v. City of San Rafael (1980) 111 Cal.App.3d 591, 595; Ullery v. County of Contra Costa (1988) 202 Cal.App.3d 562, 568; DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.) "An action in inverse condemnation will lie when damage to private property is proximately caused by use of a storm drainage system for its intended purpose." (Souza v. Silver Development Co. (1985) 164 Cal.App.3d 165, 170.) When accepted and approved by a municipality, drainage systems become a public improvement and a part of the system of public works. (Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345, 358.) "The fact that the work is performed by a contractor, subdivider or a private owner of property does not necessarily exonerate a public agency, if such contractor, subdivider or owner follows the plans and specifications furnished or approved by the public agency. When the work thus planned, specified and authorized results in an injury to adjacent property the liability is upon the public agency under its obligation to compensate for the damages resulting from the exercise of its governmental power." (Id. at pp. 362-363; see DiMartino, supra, at pp. 338-339.)"
OCSD Exhibit # 1756 Causation-Exhibits # 1278, 1337, 1338 P. 8 OCSD Respondents. Breif
The Second Appellate Court States in their decision P. 2-regarding what they think is the couse of State Highway 1 -13th Paso Robles Streets and Oceano Nursery flooding! "The Pismo Oceano Vegetable Exchange (Exchange) first leased, then purchased, from the Railroad the property west of the raised rail bed. The iron pipe discharges onto the Exchange's parcel. Around 1977, the Exchange installed a subsurface junction box at the pipe's outfall. From the junction box, the water is diverted 90 degrees through a second 24-inch pipe to a retaining pond 200 feet away. The junction box is inadequate, causing the water to back up and flood Bookout's property." California Supreme Court and California Residents---How is this Oceano Community Service District Well # 8 Discharge into a government storm water drainage system legal and not a cause?
The Second Appellate Court ignored Causation-No Date of Stabilization Exhibits 1756, 1757, 1758, 1768, 1769, 1772, 1773, 1790, 1830, 1874, 1875 County March 27, 1985 permit letter requireing POVE to raise this Drainage system. On P. 9 of their June 28, 2010 Decision State: "(Marin v. City of San Rafael, supra, 111 Cal.App.3d at p. 596.) In other words, the city was liable because it directed the installation of, used, and owned the pipe. It even obtained an injunction to prevent plaintiffs from interfering with its operation. None of those factors are present here." The Appellate Court ignored direct testimony by Phil Davis showing the County Approved and their involvement in the OCSD pipe constructed in the Rail Roads Drainage channel! P. 385 Court Transcripts-- Question: Are you aware of any permission sought by the district, itself for operating this pipe? Answer: “Other then the Health Department, I don't know of any." This Statement shows the County Liable per (Marin v. City of San Rafael)
The Second Appellate Court ignored California Case Law of Dedications as with the Oceano Community Service District Prescriptive Easement Exhibit # 1768 giving a 5 Year Statute of Limitation since Caltrans and OCSD drainage changes in December of 2002. Caltrans Fred Brebes testified that Caltrans had maintained this drainage system for 30 years prior to 2002!
The Appellate Court States June 23, 2010 in Barrett v. County of Ventura--Filed 6/23/10 Barrett v. County of Ventura CA2/6 States: "Dedication of private property for public use requires an offer of dedication by the owner and an acceptance of the offer by the public entity." (Ackley v. City Etc. of San Francisco (1970) 11 Cal.App.3d 108, 112.) The "approval or 'acceptance need not be by formal action but may be implied from official acts of dominion or control over the property . . . .' [Citation.] . . . 'Use of the land [for a public purpose] over a reasonable period of time constitutes an acceptance . . . , without any formal action in relation thereto by governmental authority . . . .'" (Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.) "On the other hand, where 'there is no acceptance of a street or the drainage system within it, there is no public improvement, public work or public use and therefore there can be no public liability for inverse condemnation.'" (Ullery v. County of Contra Costa, supra, 202 Cal.App.3d at pp. 568-569.) The County of San Luis Obispo has accepted the POVE pond as seen in (Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.) The County has accepted the OCSD use of this drainage system per exhibit # 1756 and testimony by OCSD!
The Second Appellate Court is aware of OCSD, County drainage change actions in Exhibit # 1756 that have taken this drainage channel in Oceano per their aquired Prescriptive Easement since the OCSD April 21, 1983 letter to POVE, County Of San Luis Obispo and Union Pacific Rail Road. Exhibit # 1768 shows Causation and no date of Stabilization! Exhibit 1875 Shows the County changing the POVE pond as seen in (Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.)
train Wreck in Oceano Caused by Caltrans, County of San Luis Obispo and OCSD. California State Highway Patrol Toxic Waste
County of San Luis Obispo Intentional Misconduct of evidence being withheld from discovery and then (Redacted) Affecting Public Health and Safety/flooding from State HWY 1 to our Pacific Ocean. Involving the County Of San Luis Obispo--Board of Supervisors--General Services--Airport Property, Fountain Ave and the Larry Baughman Property! Molly Thurmond on September 12, 2008 informed Judge Tangeman after his August 5, 2008 Inverse Condemnation Decision of 150 County Oceano Community drainage study Questionnaires, that she and the County of San Luis Obispo withheld from discovery and his August 5, 2008 Inverse Condemnation Decision! (Prejudicial Error) State-Caltrans,County, RWQCB, Drainage Permits presented to the Appellate Court that the Appellate Court ignored! County--State Drainage to Pacific Ocean that may close the Oceano Airport Port! PDF File San Luis Obispo Tribune 1953 County Drainage!.
County Of San Luis Obispo--Deputy Director of General Services--George R. Rosenberger Exhibit #579--Glenn Priddy County Of San Luis Obispo Fix and their cost--Steve Price Caltrans responsibility to the Pacific Ocean... As seen in these YOUTUBE videos!
California State Senators and State Assemblymember YOUTUBE knowledge of Caltrans Caltrans Supervision YOUTUBE Video January 2007 RWQCB NPDES Permited
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"
It is unfortunate That San Luis Obispo County withheld Evidence from Discovery attached! This E-Mail below deals with Caltrans Raising our State Highway and the problems this caused! The photos in this video show the problems caused by Caltrans raising State Highway 1 and the blockage on the East Side.
County Of San Luis E-Mail Deal and Withholding of Evidence Sanctions ... Inverse Condemnation Sanctions California Supreme Court
From: Scott Radovich User [mailto:scott@radovich.com]
Sent: Wednesday, January 17, 2007 9:31 PM
To: Bill Bookout
Subject: Re: Emailing: 2006-10-06_0085
Bill,
How does this help you? Likewise, I was thinking about the 2002 photo with the curb and gutter and you cleaning up, doesn’t that look like you are cleaning up after a flood? This would contradict your testimony.
Scott
On 1/17/07 9:19 PM, "Bill Bookout" <pismobeachdiveshop@charter.net> wrote:
Scott this is a picture of my neighborhood before my nursery started flooding i'm not sure the date, but it could be 2001
The message is ready to be sent with the following file or link attachments:
2006-10-06_0085
Note: To protect against computer viruses, e-mail programs may prevent sending or receiving certain types of file attachments. Check your e-mail security settings to determine how attachments are handled.
Court Reporters Transcripts showing Caltrans intentionally shoveling debris into this drainage channel.PDF..
California State Highway Patrol--County Of San Luis Obispo Exhibit #579
Caltrans caught before and after Judge Tangeman's August 5, 2008 inverse condemnation decision Grading and Shoveling "Evidence"--Contaminated Storm Water and Debris into the Oceano Communities Drainage system to the County/RWQCB permited Railroad/P.O.V.E. pond, then to our Pacific Ocean!
Lieutenant Governor, Abel Maldonado has helped and stated May 12, 2009
"I hope that you continue to seek legal counsel and that this very difficult situation will be resolved soon."
Oceano Nursery as seen on YOUTUBE and presented to Judge Tangeman! o
The Second Appellate Court Ignored in their June 28, 2010 Decision, what had been California Case Law up to June 28, 2010, With Caltrans, County and OCSD actions this drainage system has no "Date of Stabilization"! Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. “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.” “Knowing that failure to properly maintain the Project channel posed a significant risk of flooding, Counties nevertheless permitted the channel to deteriorate over a long period of years by failing to take effective action to overcome the fiscal, regulatory, and environmental impediments to keeping the Project channel clear. This is sufficient evidence to support the trial court’s finding of a deliberate and unreasonable plan of maintenance.” State diversion or obstruction of surface water onto land “not historically subject to flooding” is not protected by reasonableness rule, but results in strict liability.
Caltrans actions of shoveling and grading storm debris into this drainage channel, while the Oceano Community Service District is permitted to discharge Well # 8 water into this drainage system should have been ruled on per the Second Appellate Courts Decision June 28, 2020 per-- Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Diversion of surface waters into a natural watercourse creates liability only if it causes an unreasonable risk of harm under Locklin factors and is a substantial cause of damage. Flood control system that “fails in heavy rain and causes damage to property that has historically been subject to flooding” governed by rule of reasonableness. City could be liable even if its storm drainpipe discharged into a private pipe and the damage occurred “downstream.” “”We conclude the critical inquiry is not whether the entire system was a public improvement, but rather whether the City acted reasonably in its maintenance and control over those portions of the drainage system it does own.” “Substantial cause-and-effect relationship” is enough for liability even for downstream flooding
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The Appellate Court Justices--Steven Z. Perren--Kenneth R. Yegan---Arthur Gilbert on Page 2 and 6 of their June 28, 2010 decision allow Government to block storm water drainage channels in California per the Davis daily logs Exhibit # 1768! They believe that these photos and video below of the OCSD use of this channel are not a cause of our State Highway 1 flooding! They Blame POVE 100% ignoring Exhibit # 1875 of the County of San Luis Building permits per (Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.) Requiring POVE to raise the County's Storm Water Drainage Outlet!
As seen on YOUTUBE changing the date of stabilization
The Appellate Court on Page 12 of their Appellate Decision ignores this "Continuous Nuisance" per "Mangini"
The Second Appellate Court is mistaken on P. 8 of their June 28, 2010 decision as testimony presented to the Second Appellate Court from Phil Davis of the Oceano Community Service District and exhibit 1768 are facts that have been seen and mentioned by the Appellate Court! This evidence is ovewhelming as seen below! These drainage changes are made after the Appellate Courts P. 8 100% Blame of the Pismo Oceano Vegetable Exchange! OCSD stated to Judge Tangeman P. 383 Answer: “We run the well— Right now, we’re running about five or six day a week. And we just start it in the morning, so it goes through a cycle” –
Question. How much water is discharged out of the pipe each time that you do the procedure that you described?
Answer. “Approximately 2,500 Gallons per minute?” Question. And the rate at which this water is discharged is somewhere around 1,300 gallons per minute?
Answer. “Well, it starts out fast and gradually slow down until it stops. And when it stops, all the water is going into the system.”P. 385 Question: Are you aware of any permission sought by the district, itself for operating this pipe?
Answer: “Other then the Health Department, I don't know of any."
P.386 by Mr. Belsher: Thirteen thirty-six and 1337, is this the same discharge pipe we discussed or saw in the previous photograph, only a different configuration?
Answer. Yes.
Question: And did you oversee an extension of the pipe into the culvert that’s depicted there?
Answer. Yes.
Question. And this picture dated 2002, so does that seem as if that was the state of the – to your recollection, That the pipe was projecting into the culvert as of 2002?
Answer. Yes.
Question. And 1338 is another example of the pipe extended into the culvert. Thirteen thirty nine, is this an OCSD employee? Answer. “I believe it is.”
Question: And I note that the pipe now is cut back from the entrance to culvert?
Answer: “That’s correct.”
Question: And is that an action which you and your staff took in 2002?
Answer. “YES”
The Second Appellate Court is mistaken (Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.)as stated (FACTS-Discussion P. 8 "Here there is an obvious cause of the flooding. The Exchange modified the drainage by constructing a junction box and pipeline that redirected the flow of water by 90 degrees.") ("Causation") ("Overwhelming Evidence") Per Phil Davis Daily logs Exhibit # 1768 mentioned by the Appellate Court in Page 2 and 3 of their June 28, 2010 Decision! The Appellate Court erred in testimony of Fred Brebs and Evidence P. 3, 6, 7--Sutton, Brebes and Davis--Testomony as seen in the Court Transcripts!
The Second Appellate Court Justices--Steven Z. Peren--Kenneth R. Yegan--Arthur Gilbert; ignore Exhibit # 1756, 1731, 1732, 1760, 1763, 1769, 1772, 1773, and 1783 presented by Union Pacific per Causation drainage changes made by Caltrans, County and OCSD showing no (Date of Stabilization) And (Causation) from OCSD taking a working drainage channel in exhibit # 1756 April 21, 1983 for their use (Prescriptive Easement) of this pipe below installed in 2001 per Caltrans exhibit # 1768 . P. 8 "In other words, the City (OCSD) was liable because it directed the installation of, used , and owned the pipe."
Union Pacific Rail Road Exhibit # 1756 --P. 8 OCSD P. 7 "Obvious Cause"--(Causation) OCSD letter written to County RR and POVE presented to the Appellate Court (Prescriptive Easement) States: "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."
"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 whether, in its present state of maintenance, it can adequately carry the quantity of water that will be discharged."
This type of Causation, prescriptive easement over rides the Appellate Court P. 2 P. 6 determination decision that POVE construction in 1977 was the cause of this flooding! OCSD admitted in exhibit # 1756 "We have no idea the condition of the channel and whether, in its present state of maintenance, it can adequately carry the quantity of water that will be discharged." They contacted the County of San Luis Obispo per their testimony. (Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.)Union Pacific Railroad Exhibit # 1768---September 11, 1985 letter and Phil Davis daily logs showed The Appellate Court Justices, the Prescriptive Easement, Causation that each have claimed does not exist! The County actions in these drainage changes and permits exhibit 1874-1875 are the main Cause per (Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.)
The Appellate Court Justices--Steven Z. Peren--Kenneth R. Yegan--Arthur Gilbert
Mention this Causation-Prescriptive Easement video of the Oceano Community Service District ignoring expert testimony on P. 3 of Keith Crowe "(3) the district well added silt and debris;" In exhibit # 1768 OCSD and Caltrans David Fry-recieved a complaint of debris damming/blockage--(NOT FLOODING) and abated this problem per their testimony and the Phil Davis Daily logs! OCSD daily logs States on Friday, December 20, 2002. "I had to meet with Bill Bookout and a couple of guys from cal trans about the 6 inch line from well 8 that ends at the culvert by the tracks. I had Dan saw off the 6 inch pipe and end it 5 feet in front of the culvert so that there will be no danger of the pipe plugging debris at the entrance to the culvert."
Appellate Court Justices--Steven Z. Peren--Kenneth R. Yegan--Arthur Gilbert P. 6 fail to acknowledge this Prescriptive Easement, Causation testimony other then to State: "But none of these alledged changes of conditions compelled the trial court to conclude that the flowing was not relatively consistant and static for several years prior to Bookout's purchase of his property."" County of San Luis Obispo documents left out of exhibit # 579 provided December 2, 2008 after trial shows the Appellate Court Justices decision to be wrong! Prejudicial Error!
The Appellate Court viewed and Mentioned 500 photos plus videos showing OCSD possession/prescriptive easement of this drainage channel exhibit #1756! Change of (Statute of Limitations/Causation P. 7) This taking of this drainage channel by OCSD is after P. 2 (Facts) P. 6 (Discussion) of POVE County Permitted drainage changes in 1977-- The Appellate Court on P. 6 regarding "Date of Stabilization" believes that the last improvements where in the late 1970's! Ignoring the photos/videos/exhibits above presented to and mentioned by the Appellate Court! The Appellate Court ignores Fred Brebes Testomony that Caltrans had maintained this drainage channel for 30 years prior to 2002! OCSD has been in charge since as seen above and in their weed abatement P. 6 of the Appellate Court Transcripts! Oceano Community Service District States: Page 390 July 10, 2008 Testimony by OCSD Employee see photo above.
Question. Okay. Now, this is a picture, 1396, of you inspecting the entrance to the 20-inch culvert; correct?
Answer. UH-UH.
Question. Are you concerned at all that the operation of this pipe could blow leaves and other debris into the pipe during its operation?
Answer. Um, well we wanted to check and make sure it didn't happen.
Question. So what's your observation?
Answer. We just look through the culvert. If you could see a culvert going a hundred feet, or whatever it goes, well it is fine. Page 391.Question. And did you observe debris blowing into this pipe on occasion?
Answer. “Blowing into it.”
Question from the operation of the discharge pipe?
Answer. No
Question Do you have any maintenance plan for the channel or the culvert with respect to debris?
Answer. NO, WE DO NOT.”
The Second Appellate Court on P. 9 of their June 28, 2010 Decision State: "(Marin v. City of San Rafael, supra, 111 Cal.App.3d at p. 596.) In other words, the city was liable because it directed the installation of, used, and owned the pipe. It even obtained an injunction to prevent plaintiffs from interfering with its operation. None of those factors are present here." The Appellate Court ignored direct testimony by Phil Davis showing the County involvement in the OCSD Prescriptive Easement pipe constructed in the Rail Roads Drainage channel! P. 385 Court Transcripts-- Question: Are you aware of any permission sought by the district, itself for operating this pipe? Answer: “Other then the Health Department, I don't know of any." (Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.)
This Same Appellate Court Stated five days eariler in Barrett v. County of Ventura--Filed 6/23/10 Barrett v. County of Ventura CA2/6 "The taking of private property for the purpose of constructing storm drainage systems has been recognized to be for a public use. (Marin v. City of San Rafael (1980) 111 Cal.App.3d 591, 595; Ullery v. County of Contra Costa (1988) 202 Cal.App.3d 562, 568; DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.) "An action in inverse condemnation will lie when damage to private property is proximately caused by use of a storm drainage system for its intended purpose." (Souza v. Silver Development Co. (1985) 164 Cal.App.3d 165, 170.) When accepted and approved by a municipality, drainage systems become a public improvement and a part of the system of public works. (Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345, 358.) "The fact that the work is performed by a contractor, subdivider or a private owner of property does not necessarily exonerate a public agency, if such contractor, subdivider or owner follows the plans and specifications furnished or approved by the public agency. When the work thus planned, specified and authorized results in an injury to adjacent property the liability is upon the public agency under its obligation to compensate for the damages 6 resulting from the exercise of its governmental power." (Id. at pp. 362-363; see DiMartino, supra, at pp. 338-339.)"
The Second Appellate Court States on P. 6 P. 7 of their Appellate Court decision compleatly ignore as Exhibit # 579 documents withheld from discovery an trial! County Discovery Abuse per the Baughman Property from State Highway 1 PDF File... They State: "The determination of when the statute of limitations begins to run is a question of fact. (Lee, supra, 107 Cal.App.4th at p. 857.) Here the trial court determined that the date of stabilization theory does not apply. The court found that the last improvements to the drainage system were constructed by the Exchange in the late 1970's, and that the flooding problem was relatively consistent and static for several years prior to the time Bookout purchased his property in 2000.
Bookout challenges the trial court's findings by listing what it characterizes as changed conditions since the Exchange constructed the junction box in the 1970's. The alleged changed conditions include: maintenance activities, modifications to Well No. 8, weed abatement, removal of a retaining wall, alteration of Highway 1, shoveling and grading of debris, accumulation of debris, and an increase in impervious surfaces. But none of these alleged change of conditions compelled the trial court to conclude that the flowing was not relatively consistent and static for several years prior to Bookout's purchase of his property.
Bookout argues the trial court erred in receiving documentary evidence that was not produced during discovery. The document is a county drainage study questionnaire returned by Bookout in July 2002. Bookout stated on the questionnaire that the area floods one foot or more once a year and that the flooding has damaged his inventory."
The Appellate Court is mistaken as seen in these documents withheld by Judge Tangeman--Union Pacific Railroad and the County of San Luis Obispo!County Discovery Abuse per the Baughman Property from State Highway 1 PDF File...
Jun 28 2010
B214906
[PDF] [DOC]
Bookout v. State ex rel. Dept. of Transportation CA2/6 filed 6/28/10
Appellate Court Justices--Steven Z. Peren--Kenneth R. Yegan--Arthur Gilbert ignore as Stated in the Appellant's Reply Brief ("Accrual Date") or (Causation)!!! P. 7 and 8. The Appellate Court States P. 8 and 9:
"Bookout points to no findings of fact in his favor. Instead, he relies on over 500 photographs and videos showing the flooding, several hundred documents which he claims show each defendant exercised dominion and control over the drainage facilities, and the testimony of his expert engineer, Keith Crow. He believes the evidence against the defendants was overwhelming."
"Bookout claims the evidence is credible because it is uncontradicted. He cites Joseph v. Drew (1950) 36 Cal.2d 575, 579, for the proposition that uncontradicted testimony of a witness may not be disregarded, but should be accepted as proof of the fact to which the witness testified. Indeed, there are no doubt cases where the uncontradicted testimony of a witness is so credible that no reasonable trier of fact could reject it. But this is not such a case."
"Here there is an obvious cause of the flooding. The Exchange modified the drainage by constructing a junction box and pipeline that redirected the flow of water by 90 degrees. The Exchange has settled with Bookout. Evidence that the remaining defendants contributed to the conditions that caused the flooding rests largely in Crowe's expert testimony. As helpful as expert opinion can be, such testimony carries a built-in bias: experts are most often very well paid for their opinions. The trial court had good reason to be skeptical of Crowe's testimony. We apply the usual rule on appeal that the trier of fact is not required to believe the testimony of any witness, even if uncontradicted. (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1028.) The evidence presented here did not compel the trial court to find in favor of Bookout."
The Appellate Court chose to ignore the fact that this flooding could be abated from Caltrans documents for only $43,295.00 and that the County of San Luis Obispo required the outlet for this water raised per County Permits Exhibits 1874-1875. The California Supreme Court will need to decide if this is now legal in California (Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.)and if Has any merit for California Case law?
Caltrans East Side of State Highway 1 flooding photo 2002 of complaint in exhibit # 579-----Caltrans actions in raising State Highway 1 a foot without addressing drainage off of State Highway 1! The Appellate Court States: "Here there is an obvious cause of flooding. The Exchange modified the drainage--" Excuse me why would Caltrans Raise State Highway 1 and not account for drainage!!! This Nusisance Can be Abated!
The County of San Luis Obipo in their Appellate Court brief mention "McKinley" on P. 19 but does not mention Mr. McKinley's Statement below showing Caltrans changing the drainage stabilization (Causation) of HWY 1. 13th, and Paso Robles Streets--per exhibit 579 (Causation) a change in (Date of Stabilization) and that Pismo Oceano Vegetable Exchange is not the Cause of this flooding!
Answer: (P. 643) Yeah, I responded to a communication that our maintenance engineer received from Bill Bookout, that there was ponding, A ponding issue at the corners of 13th and Highway 1 and Paso Robles and Highway 1. And so it was in response to that communication." Question: Do you know approximately which side of the State highway this ponding occurred? Answer: "It was on the East Side". " Page 645 “We reconstructed the pavement, so we put base and we put asphalt down.” “I believe we put down half a foot of A.C., I believe.
Question: (P 653 Cross-Examination by Caltrans-Exhibit photos 579) "And when you--It was your understanding that the reason this job -- You were asked to design this job was because the Plaintiff had complained about ponding on the East Side near his property, of State Route 1? Answer: Correct." --"Objection; Leading"
The Court OVERRULED.
Question: (P.. 658) “Mr. Mckinley, in that grinding crown removal project in 2003, do you recollect removing any portions of 13th Street
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Appellant's Reply Brief
"Conditions in the Watershed are not Static which Entitles Appellant to a Delayed
Accrual Date
There have been several actions and modifications by Respondents to the drainage channel and watershed which are a cause of the flooding of Appellant’s property. Judge Tangeman held that date of stabilization approach does not apply since the last improvements to the drainage system were completed in the late 1970's and the flooding was consistent and static for several years prior to the date the Plaintiff purchased his property (Appendix #13). Below is a summary of the actions by Respondents which have changed the drainage conditions relative to Appellant’s property since the construction of the junction box in the late 1970's:
i) Maintenance activities in the drainage channel. (Respondent’s Appendix “RA” Exhibit 1768; Reporters Transcript “RT” Vol. 2 Pg 382-400; RT Vol 6 Pg 1506-1507; Exhibit 1446-1447).
ii) Modification of Well #8 discharge pipe by OCSD. (RA Exhibit 1768)
iii) Operation of Well # 8 (RT Vol 2 Pg. 383)
iv) Weed abatement in the drainage channel by OCSD. (RA Exhibit 1768; RT Vol 6 Pg 1545)
v) Removal of retaining wall by Caltrans (RT Vol 3 Pg 642-643).
vi) Alteration of Highway One in the year 2002/2003 by Caltrans. (RT Vol 3 Pg 645-646)
vii) Alteration of Highway One in the year 2005/2006 by Caltrans (RT Vol 3 Pg 645)
viii) Constant shoveling and grading of debris into drainage channel by Caltrans. (RT Vol 4 Pgs 916-917, 920; Exhibits 1466-1467, 1513-1519)
ix) Accumulation of sedimentary debris in drainage channel which reduces storage capacity. (RT Vol. 4 Pg 920; RT Vol 6 Pg 1534; RT Vol. 6 Pgs. 1546-1551)
x) Increase in impervious surfaces in the watershed (RT Vol.6 Pgs 1572). These activities have slowly destabilized any static condition in the watershed which may have existed after the junction box modification in the late 1970's. Although there has been conflicting evidence of when Appellant’s property first began flooding, these changes in the watershed afford Appellant a delayed accrual date until the conditions remain unchanged, which to date has not happened. If conditions have been static since the late 1970's as held by Judge Tangeman, why did it take 30 years for Plaintiff’s property to begin flooding?"
The Appellate Court ignored direct testimony by Phil Davis showing the County involvement in the OCSD prescriptive easement pipe constructed in the Rail Roads Drainage channel! P. 385 Court Transcripts-- Question: Are you aware of any permission sought by the district, itself for operating this pipe? Answer: “Other then the Health Department, I don't know of any."
Videos as presented to Judge Tangeman of OCSD prescriptive easement of dredging debris into the Oceano Community's storm water drainage system since December 2002! Now seen on YOUTUBE-------
Oceano Community Service District Well # 8 January 13, 2007
The Appellate Court Justices--Steven Z. Perren Kenneth R. Yegan and Arthur Gilbert-on Page 10 bring up Arreola v. County of Monterey, however ignores this case as presented to the Appellate Court "(An entity that has power to control a project is liable even if it does not actively participate in it. 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]."
The Second Appellate Court ignored this written Appellant's Reply Brief Statement! "The Flooding of Appellant’s Property is a Continuous Nuisance One of the factors to determine if a nuisance is permanent or continuous is the ability to remedy the situation. Baker v. Burbank-Glendale-Pasadena Airport (1985) 29 Cal.3d 862, 869. As Appellant’s expert testified, the construction of a detention basin near the inlet of the culvert would prevent Highway One and Appellant’s property from flooding. (RT Vol. 6 Pgs.1583-1584). Also, Respondent County of San Luis Obispo and the State of California Department of Transportation designed a fix to the situation in 1987 for $43,295. (RA Exhibit 1790). The situation in this case is not a permanent nuisance, and Judge Estrada-Mullaney’s ruling preventing Appellant to proceed on his nuisance and trespass causes of action in the second phase were in error. Under this rationale, if the Respondents put a lid on the culvert today to prevent all drainage from entering it, Appellant would still not have a cause of action for nuisance, even though this new act creates more flooding and more damage." They then discredit (Mangini v. Aerojet-General Corp., supra, 230 Cal.App.3d at p. 1143.) For this nuisance that can be abated!
As seen on YOUTUBE changing the date of stabilization
The Appellate Court on Page 10 of their decision bring up (Reasonableness) In Arreola v. County of Monterey (2002) Shows Caltrans, County and OCSD liability as all were aware of this risk posed by its public improvement and deliberately chose a course of action- or inaction-in the face of a known risk. "Knowing that failure to properly maintain the Project channel posed a significant risk of flooding." "State diversion or obstruction of surface water onto land "not historically subject to flooding is not protected by reasonableness rule, but results in strict liability." JAMES ARREOLA et al., Plaintiffs and Respondents, v. --
California Supreme Court--YOUTUBE video-Inverse Condemnation
All Videos of Caltrans actions, can now be viewed on You Tube under Inverse Condemnation, Caltrans, County of San Luis Obispo and Oceano Community Service District You Tube Video of Caltrans January 4, 2007 Shoveling Debris into the Oceano Communities Storm Water Drainage System
The Second Appellate Court on Page 12 of their June 28, 2010 decision claim that this flooding is permanent---Ignoring Exhibit # 1790 and Exhibit # 1768, 1875! Even though the evidence presented to them shows, that can be abated for $42,295.00 They bring up (Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) Baker shows the accrual of a nuisance cause of action depends on whether the nuisance is permanent or continuing: “In general, a permanent nuisance is considered to be a permanent injury to property for which damages are assessed once and for all, while a continuing nuisance is considered to be a series of successive injuries for which the plaintiff must bring successive actions. (Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 868-869 (Baker).)
The Second Appellate Court ignores the fact presented to Judge Tangeman and the Appellate Court of Exhibit # 1757 of a signed Caltrans, County and OCSD contract showing that this flooding could have been abated, prior to the flooding we are seeing since 2004! Judge Tangeman was aware of the March 14, 1985 OCSD meeting inwhich Gina Davis OCSD Deputy Secretary to the Board. ATTEST Minute Order "At its regular meeting on march 13, 1985, the board of Directors of the Oceano Community Service District directed President Allen to sign amended cooperative agreement #05a239, between the State and Oceano Community Service District, covering the contribution by the District to the State for the correction of an unsatisfactory drainage condition at Mile Post 12.4 on State Highway 1."
Caltrans with Judge Tangeman's August 5, 2008 Inverse Condemnation Decision, now has a legal right to (NOT) maintain drainage off of our State Highways in California!! The Oceano Community Service District can now legally dredge debris into this Railroad property storm water County of San Luis Obispo drainage system after the County requied the outlet pond raised per exhibit #1875--County permits--(Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.)!
Caltrans States to the Regional Water Quality Control Board---January 12, 2009:
"Due to past litigation, the Department is no longer responsible or allowed
to maintain the channel located off of the Caltrans right of way. If you
would like further information about the drainage situation and the
maintenance effort at this location, which has a history beyond what can
be detailed in an e-mail, please let me know so that I can arrange a
meeting with Department staff familiar with the drainage challenges and
restrictions at this site."
Respectfully,
Pete Riegelhuth
D-5 NPDES Coordinator
Office 805-549-3375
Cell 805-305-7726"
The Oceano Community Service District use of this storm water drainage channel affecting public health and safety as seen in exhibit 579 and testified about by Caltrans!!!
Notice the Dam that the OCSD Well # 8 PVC pipe creates in this Storm Water Drainage Channel in 2002 photo before flooding and OCSD cut their pipe in 2002 leaving this discharge pipe in this channel to discharge debris into the Railroads/County drainage system????
Caltans David Fry testified to Judge Tangeman regarding Caltrans 5 Year Prescriptive Easement--construction in the Railroad drainage channel and changes made by Caltrans of the OCSD Well # 8 Pipe in December 2002 with Caltrans installing concrete bags in front of the Oceano Community Service District Well # 8 water discharge Pipe Page 931 per exhibit # 579: Answer. “Mr. Bookout called me and asked me if I could come down and look at the pipe that – A pipe that was inserted into the entrance of the culvert. So we went down there. I met with Mr. Bookout, and I also met with Phil Davis from the Oceano Community Service District. and Mr. Bookout’s concern was that the pipe was blocking the entrance and, basically, the volume of the pipe. The --The Community Service District pipe was taking up some of the space the water could flow through the culvert.” Question. Okay. Answer. “So his request was that the Oceano Community Services District cut the four-inch water pipe, shorten it so that it didn’t actually go into the entrance to the culvert.” Question. Was that done? Answer. “That was done And when we were discussing that, I suggested that they put concrete sacks at the bottom, you know, in the bottom underneath the culvert pipe coming out a few feet, so they didn’t create a wetlands there. Because , basically, dumping extra water into the culvert -–I don’t know how often OCSD flushes their water tank, but by adding extra water, if that was wet all year-round, you’d have Tules growing there and it would create a wet lands.” So by placing something solid underneath it, then you would avoid that issue, because once that issue arises, then there’s a whole new – A whole new can of worms.” Question. Additional problems? Answer. “Additional problems, Yes.” Question Regarding what level – What types of maintenance activities could be done in wetlands; Is that correct? Answer. “Correct.”
Notice Caltrans Drainage change (Prescriptive Easement) above (Concrete Bag and OCSD Pipe) as seen by Judge Tangeman and local news media per exhibit #579! with the Appellate Court decision on June 28, 2010 this action by local government in California is now Legal!
The Second Appellate Court on P. 6 of their June 28, 2010 decision ignore that this (Prescriptive Easemant) drainage situation, that has not Stabilized per the exhibits presented to them! The Appellate Court States:
"In Pierpont Inn, Inc. v. State of California (1969) 70 Cal.2d 282 (disapproved on other ground in Los Angeles County Metropolitan Transportation Authority v. Continental Development Corp. (1997) 16 Cal.4th 694), the state constructed a freeway over land owned by Pierpont. Piepont brought an action for condemnation and damages. The state demurred on the ground that Pierpont failed to file a claim under the government claims within two years of the accrual of the cause of action. The court held the claim was timely. Pierpont reasonably awaited the completion of the project to determine more accurately the exact extent to which its remaining property would be damaged. (Id. at p. 293.) Courts have subsequently cited Pierpont for the proposition that where there is continuous and repeated damage, incident to a public improvement, the limitations period does not begin to run until the situation has stabilized. (See Lee, supra, 107 Cal.App.4th at p. 857.)"
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"The determination of when the statute of limitations begins to run is a question of fact. (Lee, supra, 107 Cal.App.4th at p. 857.) Here the trial court determined that the date of stabilization theory does not apply. The court found that the last improvements to the drainage system were constructed by the Exchange in the late 1970's, and that the flooding problem was relatively consistent and static for several years prior to the time Bookout purchased his property in 2000."
"Bookout challenges the trial court's findings by listing what it characterizes as changed conditions since the Exchange constructed the junction box in the 1970's. The alleged changed conditions include: maintenance activities, modifications to Well No. 8, weed abatement, removal of a retaining wall, alteration of Highway 1, shoveling and grading of debris, accumulation of debris, and an increase in impervious surfaces. But none of these alleged change of conditions compelled the trial court to conclude that the flowing was not relatively consistent and static for several years prior to Bookout's purchase of his property" The Second Appellate Court Justices--Steven Z. Peren--Kenneth R. Yegan--Arthur Gilbert ignored the County 1985 Building Permits Exhibits # 1874, 1875 as presented to the Appellate Court Requiring POVE to raise the OCSD, Caltrans, RR, County Drainage HWY Outlet State, Caltrans, County, RWQCB Drainage to the Pacific Ocean--Involving Toxic Waste!PDF...
Cal Trans November 26, 2008 after Judge Tangemans Decision calling this being a good neighbor! YOUTUBE Video...
RE: Statute of Limitations and Prejudicial Error in regards to evidence withheld from discovery/trial by the County of San Luis Obispo and Molly Thurmond, Esq. (SBN 104973)Exhibit #579 (Appendix 15) Prejudicial Error or Not? Photo/Statement Documents withheld by County Of San Luis Obispo And Railroad at trial as allowed by Judge Tangeman, as Judge Tangeman Stated "All Right" County of San Luis Obispo Causation in permits and drainage requirements on private property. OCSD and Caltrans correcting 2002 drainage complaint problems in 2002/2003 as stated in exhibit #579 Complaint Photos, Caltrans-McKinley Testomony P. 645 and (RA exhibit #1768) changing the Statute of Limitations! Date of Stabilization per Caltrans photos below per complaint! Judge Tangeman mishearing Caltrans Testomony, that from 2002 and prior Caltrans had a 30 year history of maintaining this drainage channel with Caltrans equipment rather then shoveling and grading debris into this drainage channel since! OCSD Prescriptive Easement (Taking) giving a 5 year statute of limitations
In the SECOND APPELLATE DISTRICT DIVISION SIX Decision--Barrett v. County of Ventura CA2/6 filed 6/23/10 shows Formal acceptance by Caltrans, County of San Luis Obispo and the Oceano Community Service District as with their; Dominion and Control Exercised by the public entity over property necessary for inverse liability may be implied from the performance by the entity of maintenance and repair work or other official acts of control over the property.(Ackley v. City Etc. of San Francisco, supra, 11 Cal.App.3d at p. 113; Yox v. City of Whittier, supra,182 Cal.App.3d at p. 353; Ullery v. County of Contra Costa, supra, 202 Cal.App.3d at pp. 568-569.)
Caltrans-Exhibit # 579 Photos taken by Caltrans in regards to complaint in Exhibit # 579 showing Flooding!
Notice photos below withheld from discovery by the County of San Luis Obispo of Caltrans maintaining drainage channel in summer 2002! Photo of Caltrans flooding east side of State Highway 1 per Exhibit # 1789!
Judge Tangeman would not allow Exhibit # 1789 in evidence which deals with Caltrans prior statements and the photos in Exhibit # 579 withheld from discovery, as it states: “The State could raise the height of Highway one approximately one foot and leave both the County and the Oceano Community Services District the problem to solve on their own (P. Hom)”
Molly Thurmond, ESQ. (SBN 104973) and Thomas A Cregger, ESQ. (SBN 124402) both knew at the time of trial that both had knowledge of these Causation/Date of Stabilization-Prescriptive Easement-Photos and Documents, Whitness's that they withheld from discovery and Judge Martin J. Tangeman! ( DURING TRIAL.) Hall, Hieatt & Connely, LLP on July 30, 2008 provided Questionnaires and redacted the whitness's names!. The color photos above where not provided until December 2, 2008 after trial as previously requested. Dean Benedix, County response No. 1--October 16, 2008 States: "If you would like us to provide you with copies of the redacted responses, we will produce such copies once you have paid the estimated copying cost of $50.00." Dean Benedix, County response No. 2--October 16, 2008 "Response: We will produce copies of the requested attachments and photographs per your request once you have paid the estimated coping costs of $15.00."
Lou Wheeler photos-Documents showing no flooding prior to 2004 --as viewed by Dean Benedix, Randy Ghezzi, Raleigh Greene, Max Keller, Cliff Howe, Michael Eckman per Dean Benedix statement: "I believe the attached photos are from Lois Wheeler of Oceano 481-5687 D Benedix 6/10/02"
Response No.3 from Dean Benedix After trial regarding documents wittheld from discovery by the County of San Luis Obispo! "We will produce copies of written communications and photos (in Color) Sent by oceano community members to Questa Engineering or the County of San Luis Obispo in regards to flooding in Oceano between 2000-2004 per your request once you have paid the estimated coping costs of $10.00."
The Second Appellate Court in their June 28, 2010 decision allows this type of withholding of evidence!
County Of San Luis Obispo--R. George Rosenberg, Deputy Director of Exhibit 579 YOUTUBE...
San Luis Obispo County/Union Pacific Railroad Exhibit # 579 photo documents withheld from discovery by County of San Luis Obispo and Union Pacific Rail Road shows Caltrans raising State Highway 1 a foot and the flooding problem on east side of State Highway 1 this created, as stated in the document provided with County 2002 Drainage Study Questionnaire! These color photos where provided December 2, 2008 and are not part of (Appendix 15) showing no Stabilization to this drainage system!
San Luis Obispo County Exhibit # 579 documents withheld from discovery by the County deals with prior County Inverse Condemnation by the County of San Luis Obispo in the Al Baughman property west of State Highway 1! In exhibit 1789 Caltrans States: "One of the members of the Oceano Commuinty Service District is an owner of property downstream from project (P. Hom)."
Glenn Priddy of the County of San Luis Obispo testified: "Are you aware of proposals for resolving the drainage problem at -- That we've referred to previously? Are you aware of proposals to resolve that problem dating back into the eighties?" Answer. Yes. Question. And have you raised issues with the respect to proposed solutions due to downstream impacts? Answer. “I have – There have been issues raised about potential downstream impacts since the eighties, and I –In the most recent discussions, I’ve pointed that out as something that needs to be looked at.” Ms Thurmond States: “Again, this is outside the water shed, not affecting Bill Bookout’
Ex-OCSD Director Larry Baughman states in the documents that the County of San Luis Obispo withheld from discovery in exhibit # 579. "We Own a home at 1519 Fountain Ave Railroad Ave East End Of Airport Runway. The End Of Fountain Ave
The Oceano Airport and the Larry Baughman Property Flooding prior to 2004 as talked about in Exhibit # 579 documents withheld from Discovery/Trial by the County of San Luis Obispo!
The San Luis Obispo New Attorney's Porter Scott--Terence J. Cassidy, SBN 99189 and Thomas L. Riodan, SBN 104827--- in their Respondents Brief mention exhibit 579 defending the prejudicial error that the County of San Luis Obispo made in withholding evidence from discovery and their attempt to get out of "Harsh Discovery Sanctions" As there is plenty of evidence showing their Intentional Concealment of Evidence before and after trial! The County States: "In any event, whatever error the trial court made regarding this solitary document was harmless in light of other admissible evidence demonstrating the Plaintiff became aware of the causes of flooding damage to his property no later then 2002." (Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.) Needs to hold the County accounable for withholding evidence from discovery!
Why would a California Superior Court Judge not allow Exhibit # 1789 into evidence and then admit in against protest partial evidence, Exhibit # 579? As stated in the Court Transcripts by Union Pacific Railroad and Judge Tangeman? “And for the purpose of the exhibits we don’t need the photographs.” The Court States: “All Right” Judge Tangeman after his August 5, 2008 Inverse Condemnation Decision States on P. 2117-2018 without acknowledging the photographs, regarding other documents withheld from discovery. "I accept Mr. Belsher's argument these questionnaires where not available at that time. They weren't available until July 30th." "no fruther information was forthcoming and now the questionnaires are here I guarantee they are voluminous, I haven't even read through all of them."
Caltrans States in Exhibit # 1789 September 15, 1987? “It was believed that our proposed plan of installing a 36-inch pipe to replace an existing 24- inch pipe would be acceptable to the property owners if it could be shown that the project would only affect the downstream owners minimally.”
“And that even though there had been some light rainfall years there is a good possibility of heavy flooding in this area in the future of both the Highway areas and the County areas.”
“The State could raise the height of Highway one approximately one foot and leave both the County and the Oceano Community Services District the problem to solve on their own (P. Hom)”
Caltrans and the County of San Luis Obispo knew before raising State Highway 1-13th and Paso Robles Streets as seen in Exhibit # 1785 May 14, 1987 that all prior drainage problems could have been abated! Caltrans States: “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.”
If a retention or detention pond of sufficient size could be constructed next to the highway on railroad property the existing culvert may work with a few changes such as lowering the outlet of the POVE pond. This Idea would protect the downstream people from flooding. One problem with the retention pond would be the fact that the existing culvert’s flow line is too high to drain the pond. There-fore most of the pond water would never drain through.”
County Exhibit 579 documents withheld from discovery shows the County of San Luis Obispo talking about the flooding of their Airport Property next to the Baughman property! "Northeast side of Oceano Airport Runway adjacient to Fountain Ave. Approx. 30,000 SQ. FT several inches deep, occuring annually." "This study is a major concern for the Oceano Airport and the need to protect and preserve the Airport." "Oceano Airport is part of an overall 'Airport system' which is heavily regulated by the Federal Government (FAA). Any Impacts to the Airport will Require Extensive Review." R. George Rosenberger, Deputy Director of General Services County Of San Luis Obispo
County Of San Luis Obispo--Deputy Director of General Services--George R. Rosenberger..YOUTUBE.
This E-mail from OCSD General Manager Patick O' Reilly, ties in with the County Of San Luis Obispo Withholding of Evidence regarding Dean Benedix and documents within Exhibit # 579 involving Fred Brebes of Caltrans and Fountain Ave. Flooding that Judge Tangeman stated "no further information was forthcoming and now the questionnaires are here I guarantee they are voluminous, I haven't even read through all of them." This is a very large Prejudical Error, that now affects every California residents health and Safety on State Highway 1 in Oceano!
From: Patrick O'Reilly [mailto:patrick@oceanocsd.org]
Sent: Wednesday, April 23, 2008 8:52 AM
To: 'Hill, James E'; 'Bill Bookout'; 'Vern Dahl'; 'Pamela Dean'; Bjm8923@cs.com
Cc: 'Gina Davis'
Subject: Zone 3 Committee Assignment
I spoke with Dean Benedix at SLO County
I would recommend that we appoint a new alternate member to replace Director Bookout on the Zone 3 committee. If we do not do that, we will only have the primary member who is Director Dean.
Patrick O'Reilly
General Manager
Oceano Community Services District
Office Phone 805-481-6730 Cell Phone 805-458-5139
Caltrans plowing through State Highway 1 while the Baughman property is not flooded as seen in Exhibit #579 withheld by the County San Luis Obispo. 
The Respondent's Brief's by the County of San Luis Obispo have chosen to lie to the Appellate Court in regards to evidence presented at trial!
This person's life is put in danger for a flooding problem created by Caltrans, County of San Luis Obipo and the Oceano Community Service District that could be abated for only $43,295.00 as seen in Caltrans documents!!! The County on P. 4 of their Respondent's Brief States: "The nuisance alleged by Plaintiff is a permanent one, difficult to abate, not a continuous one for which a new cause of action accrues upon each flood." "In addition, Plaintiff suggests no evidence that might have established the County's Liability for such torts, which require at least as much direct conduct and causation from the County, as compared to inverse condemnation." The County States on P. 29 of their Respondent's Brief States--under Statute of Limitations "A continuing nuisance is one that may be easily or inexpensively abated by the defendant," As seen in Caltrans, County and Oceano Community Service District Documents presented to Judge Martin J. Tangeman this flooding can be easily abated for only $43,295.00!!!!!
County Of San Luis Obispo Withholding of Evidence from Discovery Exhibit # 579 endangering Oceano Residents!...
CountySan Luis Obispo and State of California Tort State Highway
Bill Tatum 1539 Fountain Ave. ---2001 flooding of Entire Street
Larry A Baughman--Owner of 1519 Fountain Ave.
Chuck Bachman--1519 and 1525 Fountain Ave.
Greg S. McGree-- Fountain Ave
Marquis Miller 548 Honolulu "Heavy Rains overflow lagoon"
Less Brown--652 Air Park Dr
Jesser Esser--608 Air park Dr. "Storm Water Drainage Ditch next to Oceano Airport " "Years of neglect by SLO County
John W. Carter 1778 Aloha Place
Mary Fernald 590 Honolulu St. Problems in last five years
David and Penny Villalba 567-571 Honolulu
Raoul Cristin 1810 Laguna Drive
Jan Dilo, Department of Public Services San Luis Obispo County
R. George Rosenberg, Deputy Director of General Services County Of San Luis Obispo
Cynthia M. Joselson/Dennis A.Huebner---Photos
Franklin C. Owen --Flooding in the Oceano Airport
Keith pelemeyer-Pismo State Beach
In County of San Luis Obispo Files with drainage Studies and Color photos that where not part of Exhibit # 579 presented to Judge Tangeman!
September 7, 1990 San Luis Obispo County
October 1, 1990 County Of San Luis Obispo
October 17, 1990 Letter from John L. Wallace to OCSD Drainage in Oceano, Retention Basins , County Requirements
January 15, 1991 San Luis Obispo County
March 15, 1991 San Luis Obispo County Letter to OCSD of Drainage nuisance problems and solutions by the County of Slo
May 3, 1991 OCSD letter to SLO County Analysis of OCSD Storm Drainage Problem regarding future County Building Permits
September 23, 1991 letter to Ruth Bracket Sidewalks
September 25, 1991 letter from Ruth Brackett not talking about Paso Robles and 13th streets
November 18, 1991Oceano Halcyon Advisory Committee minutes Drainage in Oceano not Paso Robles and 13th streets ally ways sidewalks
February 10, 1992 Draft letter Sidewalks
February 12, 1992 OCSD Meeting minutes Regarding Cienaga flooding County Responsibility Drainage Director Baughman.
March 11, 1992 OCSD letter regarding Flooding of Oceano Slough below State Highway 1
February 10, 1993 OCSD Minutes 11 C. Video of flooding problem on highway 1
June 8, 1993 OCSD memorandum Meeting on Arroyo Grande outfall
February 23, 1994 OCSD meeting minutes Concerns West of State highway 1
February 25, 1994 San Luis Obispo County Sanitation District letter to Tony Boyd County Engineering Dept.
July 26, 1995 OCSD Meeting minutes Cienaga flooding problem Concern with railroad subdividing their property. A problem at Paso Robles Street
January 10, 1997 OCSD Letter to planning Commission County of San Luis Obispo
October 8, 1997 OCSD meeting Minutes Drainage Problems Bill Bookout Specifically on Airpark and Fountain Ave.
May 13, 1998 OCSD meeting Minutes "Front and Cienaga Drainage problem
October 14, 1999 San Luis Obispo County letter and documents of concern to Union Pacific Railroad regarding Cienaga Drainage not Paso Robles St.
January 25, 1999 letter from OCSD to Khatchik h. Achadjian-issues-Flooding and Drainage channel behind Fountain Ave.
January 29, 1999 County Supervisor
February 5, 1999 OCSD letter to County regarding highway 1 Drainage issues not Paso Robles street.
November 10, 1999 Louis e. Wheeler letter to K.H. Achadjian
Whiteness Direct knowledge of State Highway 1 Drainage that Molly Thurmond, ESQ. (SBN 104973) and The County of San Luis Obispo Dean Benedix withheld from Discovery!
Jay Jamison showing no flooding in 2002 with his knowledge of Highway 1.
Mark Hutctenreuther, knowledge of highway 1
Loni Silkwood, 1611 Paso Robles St Knowledge of highway 1--.
Jak Harris, knowledge of highway 1
Stanly Manel, knowledge of highway 1
Wilford P. Deschenes, knowledge of highway 1
R. Bliver, knowledge of highway 1
Jerry Bunin, 2280 Paso Robles St. Knowledge of highway 1--
Luis Wheeler, knowledge of highway 1 with photos taken of highway 1 and withheld from discovery including drainage in front of Oceano Market and Oceano Nursery.
Larry A Baughman--Owner of 1519 Fountain Ave.
"We Own a home at 1519 Fountain Ave
"Water At The Corner Of 13th/Paso Robles/And Highway 1 Runs (Drains) Under The Railroad Tracks Across Railroad Ave East End Of Airport Runway. The End Of Fountain Ave
Daniel Dena Neill--2640 Grell Ln. Robles Street
Josue Astrero,Larry A Baughman--Knowledge of State Highway
Pat Clegg, Knowledge of State Highway
Sharon Collester, Knowledge of State Highway
Alan & Liane Barta, Knowledge of State Highway Robles Street
Wando Cebulla, Knowledge of State Highway
Fred Cheda, 2231 Paso Robles Street State Highway
Katherine B. Escobar 1627 Front Street, Knowledge of State Highway
Ben Harvey knowledge of Cal Trans changes to State Highway 1
Florence Robles Street
Marylice Mankins
Eric Johnson Ally way knowledge
Herb West Knowledge of State Highway
Mark and Kristine Munro County Blaime wasting money on Study
Yvonne Putman 2591 Paso Robles--County Records
Robert W. Raymond, Knowledge of State Highway 1--poor county planning--County Eng. Photos
Charles E Royal 1561 16th between Warner and Wilmar Errosion problems
Chris & Linda Schroder 'The End of 13th st. at Cienaga
James &Throck Scudder --"Warner & 15th-water travels down 15th and Warner"
Dean Sorensean 561 Security Court 'Several inches to 1 foot depending on amount and length of rain
Ailo Stananage 547 Security Court-- County
Dan Striciculerda 1541 Wilmar Ave.
Fred Van Slyke flooding at cienaga 7 front every time it rains
Judge Martin J. Tangeman Stated September 12, 2008 in regards to these (Redacted) whiteness statements and evidence withheld from discovery above! "No further information was forthcoming and now the questionnaires are here I guarantee they are voluminous, I haven't even read through all of them." "But I think it's imcumbent to demonstrate to the court exactly which factual assertation and which witness would actually produce evidence which would result in a basis for a new trial."
The Appellate Court ignored direct testimony by Phil Davis showing the County involvement in the OCSD pipe constructed in the Rail Roads Drainage channel! P. 385 Court Transcripts-- Question: Are you aware of any permission sought by the district, itself for operating this pipe? Answer: “Other then the Health Department, I don't know of any."
You Tube--Caltrans District 5 against their NPDES Storm Water Permits and Training!
Why would the State of California/Caltrans raise a State Highway as seen in exhibit #579 withheld from discovery and then grade and shovel contaminated storm water debris into a storm water drainage channel as a Community Service District; Dams and Dredges, Debris in this man made storm water drainage channel?
Trial Briefs ignored by Judge Tangeman regarding Arreola V. Monterery 2002...
California State Highway Patrol YOUTUBE Helping Public May 21, 2006
California State Highway Patrol Helping Public with Flooding May 21, 2006
State Senator Abel Maldonado and Assemblyman Sam Blakeslee's Help and letters of support pdf...
In Exhibit 1789 dated September 15, 1987; Caltrans States: " The County provided the permit to the railroad and/or its tenant for the new building construction that now impedes the drainage flow which is the reason that makes this project necessary."
YOUTUBE Video-Causation-NO Date Of Stabilization
Judge Tangeman Stated in regards to the video above presented to him at trial. "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 No. 8, there was an absence of evidence that such discharges occurred contemporaneously with heavy rains and flooding problems." Please view the video above taken January 13, 2007 talked about by Judge Tangeman! Judge Tangeman August 5, 2008 Decision not looking at evidence and testimony at trial PDF..
California Supreme Court--Steve Price Caltrans District 5-Inverse Condemnation Caltrans Steve Price, deputy district director for area operations and maintenance talks about the fix of the flooding of State Highway 1 would ...
Caltrans District 5 YOUTUBE Inverse Condemnation Caltrans District 5 Inverse Condemnation December 2006 interview with Caltrans----Notice the Oceano Community Service District Prescriptive Easement for well # 8 pipe submerged pipe under flood water as Caltrans looks on...
Judge Tangeman States having acknowledged OCSD use of this Drainage system on Railroad property: "I find that there has been no establishment of prescriptive easements by any of the governmental entities over the private property of the railroad." "I also find that there was insufficient evidence of causation as to Oceano Community Service District, County of San Luis Obispo, State of California as between their acts and conduct and the flooding, especially given the problems associated with the drainage across the private property of the railroad and/or of P.O.V.E., without necessity to distinguish between those two entities."
The Second Appellate Court on P. 10 of their June 28, 2010 Appellate Cour Decision has Ruled: "Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 753-754.) But Bookout fails to point to anywhere in the record that the trial court applied the reasonableness test instead of strict liability. In any event, the court's ruling was based on the statute of limitations and failure to prove causation. The results are the same under the reasonableness test or strict liability. The defendants prevail."
The Second Appellate Court on P. 13 of their June 28, 2010 Appellate Cour Decision has Ruled: "All Mangini was trying to say is that a nuisance can still be continuous even after the offensive conduct has ended. The nuisance or trespass alleged here is permanent. The three-year statute of limitations bars Bookout's causes of action for nuisance and trespass."
The judgment is affirmed. Costs are awarded to respondents.
NOT TO BE PUBLISHED.
GILBERT, P.J. We concur: YEGAN, J. PERREN, J."
The Appellate Court States regarding their decision above per this flooding of our State Highway being Permanent!
Caltrans Drainage from State Highway 1 per Exhibit # 1772 Dated December 17, 1973 photos and statements shows this 90 degree drainage turn going back to 1953. POVE (Exchange) did not redirect the flow as ruled by the Appellate Court!
Below are facts as decided in Yue v. City of Auburn 3 Cal.App.4th 751 The Second Appellate Court mistook these facts and I would like to have them in the record as we go to the California Supreme Court?
The fact that the Second Appellate Court on June 23, 2010 stated in Barrett v. County of Ventura—Filed 6/3/2010 Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345 [28 Cal.Rptr. 357 with the 5 Year statute is very different then what the Appellate Court stated in our decision just five days later on P. 5 of their Appellate decision! This need to be in the record for the California
Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345 [28 Cal.Rptr. 357] involved damage caused by an accelerated flow of surface water over newly developed land adjoining plaintiff's property, collected in an enlarged culvert and sent through plaintiff's existing ditch. The court noted the basis of the city's liability was its failure to appreciate the probability that the drainage system from the new development to the Frustuck property, functioning as deliberately conceived, and as altered and maintained by the diversion of waters from their normal channels, would result in some damage to private property. (Id. at p. 362.) The drainage system, which the city had accepted and approved, was a public improvement and it did not matter if the city had not been the one that actually physically diverted the water. (Ibid.) "The fact that the work is performed by a contractor, subdivider or a private owner of property does not necessarily exonerate a public agency, if such contractor, subdivider or owner follows the plans and specifications furnished or approved by the public agency." (Id. at pp. 362-363.)
The Second Appellate talks about this in Barrett v. County of Ventura--Filed 6/23/
“Burrows v. State of California 260 Cal.App.2d 29 [66 Cal.Rptr. 868] was a case in which defendant's road resurfacing and widening project eliminated a drainage ditch, thus changing drainage patterns of surface water and causing flooding of plaintiff's land.” The Appellate Court ignored Caltrans raising State highway 1 “McKinley testimony and RR and OCSD exhibit # 1756?
Burrows noted, "in ... surface water cases we do not usually deal with unintended, though foreseeable consequences of acts or omissions, but rather with intended results which may or may not be reasonable, depending on all of the circumstances." (Burrows v. State of California, supra, 260 Cal.App.2d at p. 34.)
Inns v. San Juan Unified School Dist. (1963) 222 Cal.App.2d 174 [34 Cal.Rptr. 903] a school altered its property's natural surface drainage pattern through a wide, vegetation- covered swale to direct water through a 28-inch culvert onto plaintiff's property. Although the plaintiff had always been subject to a "servitude" for the water from the school's land, this court held the increase in volume and velocity of water released into the swale created inverse condemnation liability. (Id. at p. 177, citing LeBrun v. Richards (1930) 210 Cal. 308 [291 P. 825, 72 A.L.R. 336].)
4] A cause of action for inverse condemnation based on surface water damage must conform to the general inverse condemnation principles set forth in Albers v. County of Los Angeles (1965) 62 Cal.2d 250 [42 Cal.Rptr. 89, 398 P.2d 129] , and grounded in California's Constitution. fn. 2 (Sheffet, supra, 3 Cal.App.3d at pp. 731-732.) In certain circumstances, an owner of private property may recover in an inverse condemnation action where [3 Cal.App.4th 760] actual physical damage is caused to his property by a public improvement as deliberately planned and built, whether or not the damage is foreseeable. (Albers, supra, 62 Cal.2d at pp. 262, 263-264; contra Belair v. Riverside County Flood Control Dist., supra, 47 Cal.3d at p. 567 [re Flood Waters]; Holtz v. Superior Court (1970) 3 Cal.3d 296, 306-307 [90 Cal.Rptr. 345, 475 P.2d 441 ].) In certain circumstances, a governmental agency may be held strictly liable, with or without fault, if the public improvement constitutes a substantial cause of the damage even if only one of several concurrent causes. (Souza v. Silver Development Co. (1985) 164 Cal.App.3d 165, 171 [210 Cal. Rptr. 146]; accord, Belair, supra, at pp. 559- 560.)
8] Plaintiffs allege that the city's unreasonable "failure to recognize" the obvious problem in design, and its corresponding unreasonable "failure to upgrade" the existing drainage system, resulted in damage to their property. Defendant contends these allegations undermine plaintiffs' cause of action for inverse condemnation because defendant is under no duty to upgrade existing systems to prevent damage caused by any and all future storms. But defendant is relying on inapposite flood control cases for authority. (E.g., Tri-Chem, Inc. v. Los Angeles County Flood Control Dist. (1976) 60 Cal.App.3d 306 [132 Cal. Rptr. 142]; Shaeffer v. State of California (1972) 22 Cal.App.3d 1017 [99 Cal.Rptr. 861] (overruled on other grounds in County of San Diego v. Miller (1975) 13 Cal.3d 684, 693 [119 Cal.Rptr. 491, 532 P.2d 139]).) The cited cases did not involve a failure to plead a cause of action for inverse condemnation under any possible theory. Instead, they concerned the plaintiffs' failure to prove the defendants' flood control projects caused flood waters to inundate plaintiffs' properties. (Tri-Chem, supra, 60 Cal.App.3d at pp. 310-312; Shaeffer, supra, 22 Cal.App.3d at pp. 1019-1021.) The defendants were not liable because the evidence disclosed the flood control projects decreased the amount of flooding that would otherwise have occurred naturally on the the plaintiffs' lands. (Tri- Chem, supra, at p. 310; Shaeffer, supra, at p. 1019.)
Unlike the cited cases, plaintiffs are not alleging defendant had a duty to build or upgrade a flood control system to prevent naturally occurring flood waters from flowing onto plaintiffs' land. (Tri-Chem, supra, 60 Cal.App.3d at pp. 308-312; Shaeffer, supra, 22 Cal.App.3d at pp. 1019-1021.) Instead, they are contending defendant approved the development of a subdivision, which increased the flow of surface waters, then built a culvert to divert these surface waters even though defendant knew, or should have known, the new culvert would empty into an existing drainage system with a significantly smaller capacity, inevitably causing plaintiffs' land to be flooded. In other words, plaintiffs are alleging defendant had a duty to prevent harm to plaintiffs' land caused by conditions defendant approved or created. Since the cited cases do not hold that a defendant has no duty to upgrade an existing drainage system to accommodate an increase in and diversion of surface waters caused by the defendant, defendant's reliance on these cases is unavailing. [3 Cal.App.4th 764]
All of this information has been found with the Appellate Courts June 23, 2010 decision in Barrett v. County of Ventura--Filed 6/23/10 This is enough to bring this back to this Appellate Court for reconsideration!
?FN 2. Private property shall not be taken or damaged for public use without just compensation having first been made to ... the owner. ..." ( Cal.
?FN 3. Reasonableness in the context of surface water inverse condemnation cases has to do with balancing the utility of the public project against the gravity of the harm caused to the plaintiff. "[T]he gathering of surface waters into a system of impervious storm drains which follow natural drainage routes may result in greatly increased volume, velocity and concentration of water, and thus may constitute an unreasonable method of disposing for such water when weighed against the seriousness of the resulting harm to lower landowners whose property is damaged as a result." (Van Alstyne, op. cit. supra, 20 Hastings L.J. at pp. 451-452, fn. omitted.)
This Flooding can be abated and it will take the States News Media and National News to bring this out as our Case goes to the California Supreme Court, in regards to how the Appellate Court applied (Nuisance) (Trespass) (Causation) (Prescriptive Easement)(Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.) and Statute of Limitations! No County in California should be allowed to Require drainage systems raised as seen in County Of San Luis Obispo Building permits in 1985
Flooding Photo in 2002 complained about to Caltrans and the Oceano Community Service District. fixed December 20, 2002---Caltrans and OCSD corrected this drainage problem as seen in APPELLANT’S REPLY BRIEF Exhibit # 1768 as stated by OCSD "I had to meet with Bill Bookout and a couple of guys from cal trans about the 6 inch line from well 8 that ends at the culvert by the railroad tracks. I had Dan saw off the 6 inch pipe and end it in front of the culvert so that there will be no danger of the pipe plugging debris at the entrance to the culvert." The Next OCSD log of this drainage system is February 9, 2004 before the first flooding of Oceano Nursery. OCSD States: "Then Joe had him cleaning out the drainage ditch by the railroad track down at 13th and Front Street"
The Supreme Court Of California will need to review this video presented to Judge Martin J. Tangeman and the Second Appellate Court Justices--Steven Z. Perren, Kenneth R, yegan and Arthur Gilbert. The Second Appellate Court in their July 28, 2010 Inverse Condemnation Decision believes this Government use is legal in California!
1:16 The California Second Appellate Court Justices--Steven Z. Perren Kenneth R. Yegan and Arthur Gilbert Ignore California Case law as seen in this video presented to them and Superior Court Judge Martin J. Tangeman, per Akins v State (1998) 61 Cal.App.4th 1, Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, Belair v. Riverside County Flood Control District (1988) 47 Cal.3d 550, Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848, Lyles v. State of California (2007) 153 Cal.App.4th 281, Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596, Skoumbas v City of Orinda (2008) 165 Cal.App.4th 783, Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.) Oceano Community Service District Well # 8 January 13, 2007 Video Presented to Judge Martin J. Tangeman now seen on YOUTUBE for all California Residents knowledge of Inverse Condemnation! Skoumbas v City of Orinda (2008) 165 Cal.App.4th 783
County Of San Luis E-Mail Deal and Withholding of Evidence The Second Appellate Court has allowed Caltrans to Raise and flood State Highway 1 13th and Paso Robles Streets in Oceano California since 2000 and then Grade and shovel debris into the Oceano Communities Storm Water Drainage Channel putting blame on a produce company for 1977 construction on Union Pacific Rail Road property! They Allow withholding of evidence stating "The Trial Court did not abuse its discreation."
Judge Martin J. Tangeman stated in a request for rehearing for a new trial about this evidence withheld from discovery and at the time of trial pertaining to Brebes and Davis statements September 12, 2008.---"No further information was forthcoming and now the questionnaires are here I guarantee they are voluminous, I haven't even read through all of them." "But I think it's imcumbent to demonstrate to the court exactly which factual assertation and which witness would actually produce evidence which would result in a basis for a new trial." County Discovery Abuse Brebes--Sutton per the Baughman Property--Highway 1 PDF File...
Lieutenant Governor, Abel Maldonado stated in a letter May 12, 2009
"I hope that you continue to seek legal counsel and that this very difficult situation will be resolved soon."
Being an elected OCSD Director--Whistleblower in California Per the flooding of our State Highway-as seen in this March 1, 2007 E-Mail to Scott Radovich and the February 6, 2007 Clayton U. Hall letter To: Ms. Mauri McGuire, Carl Warren & Company CC-Rita L. Neal ESQ--Debra A Hessli-Risk Manager County of San Luis Obispo--Trying to Make A Deal in regards to the Evidence that they Withheld From Discovery involving their County Insurance. Plus their Documents presented to Judge Tangeman showing that Flooding Could Be Abated for $43,295.00---pdf County December 18, 2006 Statement-("Potentially Dangerious Situation") involves public safety to our Pacific Ocean!
Caltrans, County of San Luis Obispo and OCSD. California State Highway Patrol Put in Danger with flooding--Toxic Waste The Second Appellate Court Justices--Steven Z. Perren, Kenneth R. Yegan and Arthur Gilbert do not believe as seen in the video above, that the County, and Caltans storm water from State Highway 1 --13th and Paso Robles Streets inside the Oceano Nursery property is the use of a "Public Enity Physically entered Bookout's land or maintained possession and control over any portion of it." They Believe--"The Trial Court correctly concluded the three-year statute applies." The Second Appellate Court States this even after seeing photos and videos and hearing Caltrans testomony of their shoveling and grading Caltrans storm water debris into the Oceano Community's storm water drainage channel!
The Second Appellate Court Justices--Steven Z. Perren, Kenneth R. Yegan and Arthur Gilbert Ignore what is stated in Lyles per (Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848, 857-858 (Lee).) "ongoing activities of the public entity related to construction of a public work of improvement. In other words, it was the deliberate and ongoing conduct of the entity in the course of construction that had caused, and would continue to cause, damage to the property." Caltrans raising State Highway 1 from 2000 to 2006 and OCSD drainage changes in 2001 per exhibit # 1768 and then their fix in December 2002 from complaint in exhibit # 579 "For liability to be imposed on a public entity for a dangerous condition of public property, the entity must be in a position to protect against or warn of the hazard." (Mamola v. State of California ex rel. Dept. of Transportation, supra, 94 Cal.App.3d at p. 788.) County of San Luis Obispo--Trying to Make A Deal in regards to the Evidence that they Withheld From Discovery involving their County Insurance. Plus their Documents presented to Judge Tangeman that Flooding Could Be Abated---pdf The Second Appellate Court ignored (Marin v. City of San Rafael) and their Statement in their June 23, 2010 decision and the Railroads and Our exhibits # 1756, 1874, 1875 "The taking of private property for the purpose of constructing storm drainage systems has been recognized to be for a public use. (Marin v. City of San Rafael (1980) 111 Cal.App.3d 591, 595; Ullery v. County of Contra Costa (1988) 202 Cal.App.3d 562, 568; DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.) "An action in inverse condemnation will lie when damage to private property is proximately caused by use of a storm drainage system for its intended purpose." (Souza v. Silver Development Co. (1985) 164 Cal.App.3d 165, 170.) When accepted and approved by a municipality, drainage systems become a public improvement and a part of the system of public works. (Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345, 358.) "The fact that the work is performed by a contractor, subdivider or a private owner of property does not necessarily exonerate a public agency, if such contractor, subdivider or owner follows the plans and specifications furnished or approved by the public agency. When the work thus planned, specified and authorized results in an injury to adjacent property the liability is upon the public agency under its obligation to compensate for the damages resulting from the exercise of its governmental power." (Id. at pp. 362-363; see DiMartino, supra, at pp. 338-339.)"
"Plaintiffs urge that the statute of limitations did not begin because their property suffers continuous and repeated damage that has not stabilized. (Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848, 857-858 (Lee).) According to plaintiffs, State has never modified the essential condition of the culvert and, thus, the condition continues to threaten their property. There is no merit to this point. In Lee, the county transportation authority began constructing the Metro Rail Red Line underneath Hollywood Boulevard in 1992. The plaintiff observed that water had accumulated on or around her Hollywood Boulevard property in 1995. She suspected that plumbing in her building was the source of the problem and informed her insurance carrier. An inspection determined that the city’s water pipes were undermining the sidewalk and Hollywood Boulevard. At that point, there had been no apparent damage to plaintiff’s building. In 1996, the sidewalks and roadbed directly in front of plaintiff’s property buckled. The plaintiff notified a city inspector about her observations and requested the city to address the pipe problem because it was affecting her business. FEMA told her that earthquake was not the cause of the pipe problem. In 1997, a city building inspector told the plaintiff that the problem was not on her property but that the damage could be related to activities of the transportation authority. The plaintiff then received geological and engineering reports from experts she had hired. The reports concluded that the damage to her building was caused by subway construction activities and recommended that mitigation measures include a new foundation. Throughout the 9 fall of 1997, the plaintiff had contact with the transportation authority’s insurance adjustors. She filed her inverse condemnation and related tort action against the transportation authority in May 2000 alleging that her property had been damaged by ongoing construction of the subway. The transportation authority demurred on statuteof- limitation grounds. The parties accepted that the inverse condemnation action accrued when the plaintiff either knew or reasonably should have known of the damage to her property. The trial court sustained the demurrer. But the court reversed after relying on Pierpont Inn, Inc. v. State of California (1969) 70 Cal.2d 282, disapproved on another ground in Los Angeles County Metropolitan Transportation Authority v. Continental Development Corp. (1997) 16 Cal.4th 694, and Stonewall Ins. Co. v. City of Palos Verdes Estates (1996) 46 Cal.App.4th 1810.
It held that, where property damage incident to a work of public improvement is continuous and repeated, the limitations period does not begin to run until the damage has “stabilized.” (Lee, supra, 107 Cal.App.4th at pp. 856- 857.) The court based its holding on plaintiff’s allegation that the “construction of the subway rail system ‘is and/or will be continuing in the future’ [and that the] ‘[t]he ongoing construction has damaged and Plaintiffs are informed and believed will continue to damage Plaintiff’s businesses and properties’ ” by activities that did cause and “ ‘will continue to cause ongoing interference’ ” with plaintiff’s use of the property. (Id. at p. 858.) The court concluded that the “plaintiff ha[d] adequately alleged a continuous and repeated course of conduct causing damages to her property, which had not stabilized at the time” the action was filed. (Ibid.) The key distinction between this case and Lee is that Lee involved alleged damage caused by the ongoing activities of the public entity related to construction of a public work of improvement. In other words, it was the deliberate and ongoing conduct of the entity in the course of construction that had caused, and would continue to cause, damage to the property.
March 1, 2007 E-Mail "It is unfortunate that i'm the one that has to be the whistleblower on the County/State/OSD-Cover-up. This has had a Defamation on my reputation, tremendous financial losses and caused a stigma on my Business that will last forever. You initially took this case on a inverse condemnation assumption and I still feel, that's the case. P.O.V.E. and Union Pacific is purely irresponsible and negligent."
March 1, 2007 E-Mail County in 2007 Withholding of Evidence! "The County Of San Luis Obispo has withheld key information regarding flooding and prior actions of other agencies this has cost the County Tax payers thousands of dollars as drainage studies have been done without this information being provided."
Video --
The Second Appellate Court has ruled July 28, 2010 that this 2001-2002 Oceano Community Service District drainage change is not Causation of our State Highway Flooding! The Appellate Court has seen the videos of this OCSD pipe inside a storm water drainage channel discharging well water and debris daily into a storm water drainage system used by the County, Caltrans, OCSD and Union Pacific Rail Road! The Appellate Court States: "Plaintiff brought this action against a number of public entities and a railroad claiming the defendants caused his property to flood when it rained. The complaint alleged inverse condemnation and tort causes of action. The inverse condemnation cause of action was tried to the court. After plaintiff's case, the trial court granted nonsuit based on the statute of limitations, failure to prove causation, and a determination that the railroad is not a public entity. Thereafter, the defendants moved for judgment on the pleadings on the tort causes of action. The court granted the motion based on the trial court's previous finding of lack of causation and the statute of limitations. We affirm."
Second Appellate Court-Inverse Condemnation Train Wreck
The Second Appellate Court allows withholding of evidence as talked about by Judge Martin J. Tangeman September 12, 2008 and believe's that it is OK for Caltrans to Grade and Shovel Storm Water debris into this California storm water drainage system after Caltrans raised State Highway 1 a foot! The Second Appellate Court beleives that the flooding of our State Highway cannot be abated! The Second Appellate Court believes that this flooding is caused by Pismo Oceano Vegetable Exchange in 1977 construction and that their is no government Liability for Caltrans, County and OCSD drainage changes since 1977! The Second Appellate Court does not take into account that this POVE construction was over seen and permitted by the County Of San Luis Obispo. The Second Appellate Court ignores the fact that the County of San Luis Obispo required the outlet of this drainage system raised in 1985 County Building permits!
Jun 28 2010
B214906
[PDF] [DOC]Bookout v. State ex rel. Dept. of Transportation CA2/6 filed 6/28/10
The Second Appellate Court Justices--Steven Z. Perren, Kenneth R. Yegan and Arthur Gilbert State on P. 6 and 7 ignoring documents from Brebes and Davis prior to State Highway 1 flooding--(Fountain Ave-Airpark Dr)! "Bookout argues the trial court erred in receiving documentary evidence that was not produced during discovery. The document is a county drainage study questionnaire returned by Bookout in July 2002. Bookout stated on the questionnaire that the area floods one foot or more once a year and that the flooding has damaged his inventory."
The Second Appellate Court call this a (Single) document instead of what Judge Martin J. Tangeman Stated September 12, 2008 in regards to some of these (Redacted) whiteness statements, questionnaires and evidence withheld from discovery below! "No further information was forthcoming and now the questionnaires are here I guarantee they are voluminous, I haven't even read through all of them." "But I think it's imcumbent to demonstrate to the court exactly which factual assertation and which witness would actually produce evidence which would result in a basis for a new trial." County Discovery Abuse Brebes--Sutton per the Baughman Property--Highway 1 PDF File...
The California Second Appellate Court Justices--Steven Z. Perren Kenneth R. Yegan and Arthur Gilbert have Ruled the actions Above and below are now Permanent and legal in California, per their Appellate Court Decision June 28, 2010! Each Justice is fully aware, that this flooding can be abated for only $43,295.00 Exhibit # 1790. They are aware of the documents above and below withheld from Discovery Exhibit # 579. They are aware of the OCSD Exhibit # 1756-Prescriptive Easement daily use of this drainage system for 2500 hundred gallons per minute of well water discharge as seen in this 1983 letter to the County of San Luis Obispo Rail-Road taking this drainage system. They are aware of the Video's of this pipe discharging debris into this drainage system since 2001 per exhibit # 1768! The County 1985 Approved and permitted--RR/POVE pond--mentioned on P. 2 and P. 6-Video P. 8 of their Appellate Court decision! They are aware of documents withheld by the County Of San Luis Obispo P. 6 and P. 7! The Appellate Court is aware that this drainage course was not changed by POVE per Caltrans Drainage Documents December 17, 1973 Exhibit # 1772 (Prejudicial Error) (Accrual Date) (Causation)
County of San Luis Obispo and Caltrans Liability to the Pacific Ocean
Plane Crashes San Luis Obispo County Airport Oceano-Flooding Second Appellate Court-Inverse Condemnation The County of San Luis Obispo Exhibit # 579 Documents withheld from discovery show how this drainage once traveld to the Oceano Airport in 2002 as stated in these County Questionnaires! These documents will ultimatly close the Oceano Airport when Caltrans and the County San Luis Obispo end using State Highway 1 for Storm Water Retention!
YOUTUBE County Of San Luis E-Mail Deal and Withholding of Evidence
California State Government (Caltrans, County, OCSD) should not be allowed to use our storm water drainage channels for their Debris and Well Water! These videos above were presented to Judge Martin J. Tangeman and the Second Appellate Court! Please read the following two PDF files regarding San Luis Obispo County and OCSD actions during discovery!
County of San Luis Obispo--Trying to Make A Deal in regards to the Evidence that they Withheld From Discovery involving their County Insurance. Plus their Documents presented to Judge Tangeman that Flooding Could Be Abated---pdf
OCSD Attorney Conflict Robert Weeks--Fiancee/Wife Was Oceano Nursery Bookkeeper that the Oceano Community Service District Hired knowing this Fact!---OCSD Directors Full Knowledge of Their Action!. pdf..
The Second Appellate Court does not find an (Abuse of Discretion) in their June 28, 2010 decision P. 6 and 7 or, that it is a Prejudicial Error for the County of San Luis Obispo-or Union Pacific Railroad to withhold 150 Oceano/County whiteness-plus photo/Questionnaires/ documents from discovery until after trial July 30, 2008! They allow Superior Court Judge Martin J. Tangeman to withhold photo attachments that went with Exhibit # 579 showing Caltrans maintaining the Oceano Communities Storm Water Drainage Channel--Raising State Highway 1 and blocking drainage on the East Side of State Highway 1!. The Second Appellate Court does not find this to be a Prejudicial Error in California!
The Second Appellate Court States Page. 7 and 8 of their June 28. 2010 decision "Even if the trial court erred in applying the statute of limitations, the trial court found that Bookout failed to carry his burden of proof as to causation in his action against the District, the County and Caltrans. Plaintiff has the burden of proving a substantial causal relationship between the defendant's act or omission and the injury. (California State Automobile Assn. v. City of Palo Alto (2006) 138 Cal.App.4th 474, 481.) To carry that burden plaintiff must exclude the probability that other forces alone produced the injury. (Ibid.) " These YOUTUBE videos below show (Causation) Each State Senator and State Assembly Member is fully aware of these videos and Caltrans, County, OCSD use of this drainage system!Train Wreck State Highway Patrol put in danger by Caltrans! Railroad Train Wreck
Video talked about by the Appellate Court----Oceano Train Wreck as seen in photo exhibits withheld from discovery by the County Of San Luis Obispo in exhibit # 579! Caltrans Caught shoveling and grading debris into storm water drainage channel as seen by the California Second Appellate Court and San Luis Obispo Superior Court Judge Martin J. Tangeman!
State Highway Patrol put in danger by Caltrans! Railroad Train Wreck
California State Senators--State Assemblymembers knowledge of Caltrans, County of San Luis Obispo-Inverse Condemnation, affecting Public Health and Safety of our State Highway along with Photo/Statements and Documents withheld by County Of San Luis Obispo And Union Pacific Railroad at trial as allowed by Judge Tangeman, as Judge Tangeman Stated "All Right" --Prejudicial Error--
The Appellate Court is aware of their June 23, 2010 decision, which exercised dominion and control over the private drain as seen in Barrett v. County of Ventura CA2/6 filed 6/23/10 PDF]
Caltrans, County, Oceano Community Service District were each aware from their documents that State Highway 1 Drainage could be abated for only $43,295.00 As seen in the PDF file above per Appellate Court Exhibit # 1790
OCSD Exhibit # 1756 Causation-Exhibits # 1278, 1337, 1338 P. 8 OCSD Respondents. Breif
The Second Appellate Court States in their decision P. 2-regarding what they think is the couse of State Highway 1 -13th Paso Robles Streets and Oceano Nursery flooding! "The Pismo Oceano Vegetable Exchange (Exchange) first leased, then purchased, from the Railroad the property west of the raised rail bed. The iron pipe discharges onto the Exchange's parcel. Around 1977, the Exchange installed a subsurface junction box at the pipe's outfall. From the junction box, the water is diverted 90 degrees through a second 24-inch pipe to a retaining pond 200 feet away. The junction box is inadequate, causing the water to back up and flood Bookout's property." California Supreme Court and California Residents---How is this Oceano Community Service District Well # 8 Discharge into a government storm water drainage system legal and not a cause?
The Second Appellate Court ignored Causation-No Date of Stabilization Exhibits 1756, 1757, 1758, 1768, 1769, 1772, 1773, 1790, 1830, 1874, 1875 County March 27, 1985 permit letter requireing POVE to raise this Drainage system. On P. 9 of their June 28, 2010 Decision State: "(Marin v. City of San Rafael, supra, 111 Cal.App.3d at p. 596.) In other words, the city was liable because it directed the installation of, used, and owned the pipe. It even obtained an injunction to prevent plaintiffs from interfering with its operation. None of those factors are present here." The Appellate Court ignored direct testimony by Phil Davis showing the County Approved and their involvement in the OCSD pipe constructed in the Rail Roads Drainage channel! P. 385 Court Transcripts-- Question: Are you aware of any permission sought by the district, itself for operating this pipe? Answer: “Other then the Health Department, I don't know of any." This Statement shows the County Liable per (Marin v. City of San Rafael)
The Second Appellate Court ignored California Case Law of Dedications as with the Oceano Community Service District Prescriptive Easement Exhibit # 1768 giving a 5 Year Statute of Limitation since Caltrans and OCSD drainage changes in December of 2002. Caltrans Fred Brebes testified that Caltrans had maintained this drainage system for 30 years prior to 2002!
The Appellate Court States June 23, 2010 in Barrett v. County of Ventura--Filed 6/23/10 Barrett v. County of Ventura CA2/6 States: "Dedication of private property for public use requires an offer of dedication by the owner and an acceptance of the offer by the public entity." (Ackley v. City Etc. of San Francisco (1970) 11 Cal.App.3d 108, 112.) The "approval or 'acceptance need not be by formal action but may be implied from official acts of dominion or control over the property . . . .' [Citation.] . . . 'Use of the land [for a public purpose] over a reasonable period of time constitutes an acceptance . . . , without any formal action in relation thereto by governmental authority . . . .'" (Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.) "On the other hand, where 'there is no acceptance of a street or the drainage system within it, there is no public improvement, public work or public use and therefore there can be no public liability for inverse condemnation.'" (Ullery v. County of Contra Costa, supra, 202 Cal.App.3d at pp. 568-569.) The County of San Luis Obispo has accepted the POVE pond as seen in (Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.) The County has accepted the OCSD use of this drainage system per exhibit # 1756 and testimony by OCSD!
The Second Appellate Court is aware of OCSD, County drainage change actions in Exhibit # 1756 that have taken this drainage channel in Oceano per their aquired Prescriptive Easement since the OCSD April 21, 1983 letter to POVE, County Of San Luis Obispo and Union Pacific Rail Road. Exhibit # 1768 shows Causation and no date of Stabilization! Exhibit 1875 Shows the County changing the POVE pond as seen in (Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.)
train Wreck in Oceano Caused by Caltrans, County of San Luis Obispo and OCSD. California State Highway Patrol Toxic Waste
County of San Luis Obispo Intentional Misconduct of evidence being withheld from discovery and then (Redacted) Affecting Public Health and Safety/flooding from State HWY 1 to our Pacific Ocean. Involving the County Of San Luis Obispo--Board of Supervisors--General Services--Airport Property, Fountain Ave and the Larry Baughman Property! Molly Thurmond on September 12, 2008 informed Judge Tangeman after his August 5, 2008 Inverse Condemnation Decision of 150 County Oceano Community drainage study Questionnaires, that she and the County of San Luis Obispo withheld from discovery and his August 5, 2008 Inverse Condemnation Decision! (Prejudicial Error) State-Caltrans,County, RWQCB, Drainage Permits presented to the Appellate Court that the Appellate Court ignored! County--State Drainage to Pacific Ocean that may close the Oceano Airport Port! PDF File San Luis Obispo Tribune 1953 County Drainage!. From: Scott Radovich User [mailto:scott@radovich.com] Bill, Scott this is a picture of my neighborhood before my nursery started flooding i'm not sure the date, but it could be 2001 Caltrans actions of shoveling and grading storm debris into this drainage channel, while the Oceano Community Service District is permitted to discharge Well # 8 water into this drainage system should have been ruled on per the Second Appellate Courts Decision June 28, 2020 per-- Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Diversion of surface waters into a natural watercourse creates liability only if it causes an unreasonable risk of harm under Locklin factors and is a substantial cause of damage. Flood control system that “fails in heavy rain and causes damage to property that has historically been subject to flooding” governed by rule of reasonableness. City could be liable even if its storm drainpipe discharged into a private pipe and the damage occurred “downstream.” “”We conclude the critical inquiry is not whether the entire system was a public improvement, but rather whether the City acted reasonably in its maintenance and control over those portions of the drainage system it does own.” “Substantial cause-and-effect relationship” is enough for liability even for downstream flooding The Second Appellate Court States on P. 6 P. 7 of their Appellate Court decision compleatly ignore as Exhibit # 579 documents withheld from discovery an trial! County Discovery Abuse per the Baughman Property from State Highway 1 PDF File... They State: "The determination of when the statute of limitations begins to run is a question of fact. (Lee, supra, 107 Cal.App.4th at p. 857.) Here the trial court determined that the date of stabilization theory does not apply. The court found that the last improvements to the drainage system were constructed by the Exchange in the late 1970's, and that the flooding problem was relatively consistent and static for several years prior to the time Bookout purchased his property in 2000.
Bookout challenges the trial court's findings by listing what it characterizes as changed conditions since the Exchange constructed the junction box in the 1970's. The alleged changed conditions include: maintenance activities, modifications to Well No. 8, weed abatement, removal of a retaining wall, alteration of Highway 1, shoveling and grading of debris, accumulation of debris, and an increase in impervious surfaces. But none of these alleged change of conditions compelled the trial court to conclude that the flowing was not relatively consistent and static for several years prior to Bookout's purchase of his property. Bookout argues the trial court erred in receiving documentary evidence that was not produced during discovery. The document is a county drainage study questionnaire returned by Bookout in July 2002. Bookout stated on the questionnaire that the area floods one foot or more once a year and that the flooding has damaged his inventory." The Appellate Court is mistaken as seen in these documents withheld by Judge Tangeman--Union Pacific Railroad and the County of San Luis Obispo!County Discovery Abuse per the Baughman Property from State Highway 1 PDF File... Appellate Court Justices--Steven Z. Peren--Kenneth R. Yegan--Arthur Gilbert ignore as Stated in the Appellant's Reply Brief ("Accrual Date") or (Causation)!!! P. 7 and 8. The Appellate Court States P. 8 and 9:
"Bookout points to no findings of fact in his favor. Instead, he relies on over 500 photographs and videos showing the flooding, several hundred documents which he claims show each defendant exercised dominion and control over the drainage facilities, and the testimony of his expert engineer, Keith Crow. He believes the evidence against the defendants was overwhelming." Accrual Date There have been several actions and modifications by Respondents to the drainage channel and watershed which are a cause of the flooding of Appellant’s property. Judge Tangeman held that date of stabilization approach does not apply since the last improvements to the drainage system were completed in the late 1970's and the flooding was consistent and static for several years prior to the date the Plaintiff purchased his property (Appendix #13). Below is a summary of the actions by Respondents which have changed the drainage conditions relative to Appellant’s property since the construction of the junction box in the late 1970's: i) Maintenance activities in the drainage channel. (Respondent’s Appendix “RA” Exhibit 1768; Reporters Transcript “RT” Vol. 2 Pg 382-400; RT Vol 6 Pg 1506-1507; Exhibit 1446-1447). ii) Modification of Well #8 discharge pipe by OCSD. (RA Exhibit 1768) iii) Operation of Well # 8 (RT Vol 2 Pg. 383) iv) Weed abatement in the drainage channel by OCSD. (RA Exhibit 1768; RT Vol 6 Pg 1545) v) Removal of retaining wall by Caltrans (RT Vol 3 Pg 642-643). vi) Alteration of Highway One in the year 2002/2003 by Caltrans. (RT Vol 3 Pg 645-646) vii) Alteration of Highway One in the year 2005/2006 by Caltrans (RT Vol 3 Pg 645) viii) Constant shoveling and grading of debris into drainage channel by Caltrans. (RT Vol 4 Pgs 916-917, 920; Exhibits 1466-1467, 1513-1519) ix) Accumulation of sedimentary debris in drainage channel which reduces storage capacity. (RT Vol. 4 Pg 920; RT Vol 6 Pg 1534; RT Vol. 6 Pgs. 1546-1551) x) Increase in impervious surfaces in the watershed (RT Vol.6 Pgs 1572). These activities have slowly destabilized any static condition in the watershed which may have existed after the junction box modification in the late 1970's. Although there has been conflicting evidence of when Appellant’s property first began flooding, these changes in the watershed afford Appellant a delayed accrual date until the conditions remain unchanged, which to date has not happened. If conditions have been static since the late 1970's as held by Judge Tangeman, why did it take 30 years for Plaintiff’s property to begin flooding?"
County Of San Luis Obispo--Deputy Director of General Services--George R. Rosenberger Exhibit #579--Glenn Priddy County Of San Luis Obispo Fix and their cost--Steve Price Caltrans responsibility to the Pacific Ocean... As seen in these YOUTUBE videos!
California State Senators and State Assemblymember YOUTUBE knowledge of Caltrans Caltrans Supervision YOUTUBE Video January 2007 RWQCB NPDES Permited
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
It is unfortunate That San Luis Obispo County withheld Evidence from Discovery attached! This E-Mail below deals with Caltrans Raising our State Highway and the problems this caused! The photos in this video show the problems caused by Caltrans raising State Highway 1 and the blockage on the East Side.
County Of San Luis E-Mail Deal and Withholding of Evidence Sanctions ... Inverse Condemnation Sanctions California Supreme Court
Sent: Wednesday, January 17, 2007 9:31 PM
To: Bill Bookout
Subject: Re: Emailing: 2006-10-06_0085
How does this help you? Likewise, I was thinking about the 2002 photo with the curb and gutter and you cleaning up, doesn’t that look like you are cleaning up after a flood? This would contradict your testimony.
Scott
On 1/17/07 9:19 PM, "Bill Bookout" <pismobeachdiveshop@charter.net> wrote:
The message is ready to be sent with the following file or link attachments:
2006-10-06_0085
Note: To protect against computer viruses, e-mail programs may prevent sending or receiving certain types of file attachments. Check your e-mail security settings to determine how attachments are handled.
Court Reporters Transcripts showing Caltrans intentionally shoveling debris into this drainage channel.PDF..
California State Highway Patrol--County Of San Luis Obispo Exhibit #579
Caltrans caught before and after Judge Tangeman's August 5, 2008 inverse condemnation decision Grading and Shoveling "Evidence"--Contaminated Storm Water and Debris into the Oceano Communities Drainage system to the County/RWQCB permited Railroad/P.O.V.E. pond, then to our Pacific Ocean!
Lieutenant Governor, Abel Maldonado has helped and stated May 12, 2009
"I hope that you continue to seek legal counsel and that this very difficult situation will be resolved soon."
Oceano Nursery as seen on YOUTUBE and presented to Judge Tangeman! o
The Second Appellate Court Ignored in their June 28, 2010 Decision, what had been California Case Law up to June 28, 2010, With Caltrans, County and OCSD actions this drainage system has no "Date of Stabilization"! Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. “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.” “Knowing that failure to properly maintain the Project channel posed a significant risk of flooding, Counties nevertheless permitted the channel to deteriorate over a long period of years by failing to take effective action to overcome the fiscal, regulatory, and environmental impediments to keeping the Project channel clear. This is sufficient evidence to support the trial court’s finding of a deliberate and unreasonable plan of maintenance.” State diversion or obstruction of surface water onto land “not historically subject to flooding” is not protected by reasonableness rule, but results in strict liability.
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The Appellate Court Justices--Steven Z. Perren--Kenneth R. Yegan---Arthur Gilbert on Page 2 and 6 of their June 28, 2010 decision allow Government to block storm water drainage channels in California per the Davis daily logs Exhibit # 1768! They believe that these photos and video below of the OCSD use of this channel are not a cause of our State Highway 1 flooding! They Blame POVE 100% ignoring Exhibit # 1875 of the County of San Luis Building permits per (Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.) Requiring POVE to raise the County's Storm Water Drainage Outlet!
As seen on YOUTUBE changing the date of stabilization
The Appellate Court on Page 12 of their Appellate Decision ignores this "Continuous Nuisance" per "Mangini"
The Second Appellate Court is mistaken on P. 8 of their June 28, 2010 decision as testimony presented to the Second Appellate Court from Phil Davis of the Oceano Community Service District and exhibit 1768 are facts that have been seen and mentioned by the Appellate Court! This evidence is ovewhelming as seen below! These drainage changes are made after the Appellate Courts P. 8 100% Blame of the Pismo Oceano Vegetable Exchange! OCSD stated to Judge Tangeman P. 383 Answer: “We run the well— Right now, we’re running about five or six day a week. And we just start it in the morning, so it goes through a cycle” –
Question. How much water is discharged out of the pipe each time that you do the procedure that you described?
Answer. “Approximately 2,500 Gallons per minute?” Question. And the rate at which this water is discharged is somewhere around 1,300 gallons per minute?
Answer. “Well, it starts out fast and gradually slow down until it stops. And when it stops, all the water is going into the system.”P. 385 Question: Are you aware of any permission sought by the district, itself for operating this pipe?
Answer: “Other then the Health Department, I don't know of any."
P.386 by Mr. Belsher: Thirteen thirty-six and 1337, is this the same discharge pipe we discussed or saw in the previous photograph, only a different configuration?
Answer. Yes.
Question: And did you oversee an extension of the pipe into the culvert that’s depicted there?
Answer. Yes.
Question. And this picture dated 2002, so does that seem as if that was the state of the – to your recollection, That the pipe was projecting into the culvert as of 2002?
Answer. Yes.
Question. And 1338 is another example of the pipe extended into the culvert. Thirteen thirty nine, is this an OCSD employee? Answer. “I believe it is.”
Question: And I note that the pipe now is cut back from the entrance to culvert?
Answer: “That’s correct.”
Question: And is that an action which you and your staff took in 2002?
Answer. “YES”
The Second Appellate Court is mistaken (Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.)as stated (FACTS-Discussion P. 8 "Here there is an obvious cause of the flooding. The Exchange modified the drainage by constructing a junction box and pipeline that redirected the flow of water by 90 degrees.") ("Causation") ("Overwhelming Evidence") Per Phil Davis Daily logs Exhibit # 1768 mentioned by the Appellate Court in Page 2 and 3 of their June 28, 2010 Decision! The Appellate Court erred in testimony of Fred Brebs and Evidence P. 3, 6, 7--Sutton, Brebes and Davis--Testomony as seen in the Court Transcripts!
The Second Appellate Court Justices--Steven Z. Peren--Kenneth R. Yegan--Arthur Gilbert; ignore Exhibit # 1756, 1731, 1732, 1760, 1763, 1769, 1772, 1773, and 1783 presented by Union Pacific per Causation drainage changes made by Caltrans, County and OCSD showing no (Date of Stabilization) And (Causation) from OCSD taking a working drainage channel in exhibit # 1756 April 21, 1983 for their use (Prescriptive Easement) of this pipe below installed in 2001 per Caltrans exhibit # 1768 . P. 8 "In other words, the City (OCSD) was liable because it directed the installation of, used , and owned the pipe."
Union Pacific Rail Road Exhibit # 1756 --P. 8 OCSD P. 7 "Obvious Cause"--(Causation) OCSD letter written to County RR and POVE presented to the Appellate Court (Prescriptive Easement) States: "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."
"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 whether, in its present state of maintenance, it can adequately carry the quantity of water that will be discharged."
This type of Causation, prescriptive easement over rides the Appellate Court P. 2 P. 6 determination decision that POVE construction in 1977 was the cause of this flooding! OCSD admitted in exhibit # 1756 "We have no idea the condition of the channel and whether, in its present state of maintenance, it can adequately carry the quantity of water that will be discharged." They contacted the County of San Luis Obispo per their testimony. (Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.)Union Pacific Railroad Exhibit # 1768---September 11, 1985 letter and Phil Davis daily logs showed The Appellate Court Justices, the Prescriptive Easement, Causation that each have claimed does not exist! The County actions in these drainage changes and permits exhibit 1874-1875 are the main Cause per (Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.)
The Appellate Court Justices--Steven Z. Peren--Kenneth R. Yegan--Arthur Gilbert
Mention this Causation-Prescriptive Easement video of the Oceano Community Service District ignoring expert testimony on P. 3 of Keith Crowe "(3) the district well added silt and debris;" In exhibit # 1768 OCSD and Caltrans David Fry-recieved a complaint of debris damming/blockage--(NOT FLOODING) and abated this problem per their testimony and the Phil Davis Daily logs! OCSD daily logs States on Friday, December 20, 2002. "I had to meet with Bill Bookout and a couple of guys from cal trans about the 6 inch line from well 8 that ends at the culvert by the tracks. I had Dan saw off the 6 inch pipe and end it 5 feet in front of the culvert so that there will be no danger of the pipe plugging debris at the entrance to the culvert."
Appellate Court Justices--Steven Z. Peren--Kenneth R. Yegan--Arthur Gilbert P. 6 fail to acknowledge this Prescriptive Easement, Causation testimony other then to State: "But none of these alledged changes of conditions compelled the trial court to conclude that the flowing was not relatively consistant and static for several years prior to Bookout's purchase of his property."" County of San Luis Obispo documents left out of exhibit # 579 provided December 2, 2008 after trial shows the Appellate Court Justices decision to be wrong! Prejudicial Error!
The Appellate Court viewed and Mentioned 500 photos plus videos showing OCSD possession/prescriptive easement of this drainage channel exhibit #1756! Change of (Statute of Limitations/Causation P. 7) This taking of this drainage channel by OCSD is after P. 2 (Facts) P. 6 (Discussion) of POVE County Permitted drainage changes in 1977-- The Appellate Court on P. 6 regarding "Date of Stabilization" believes that the last improvements where in the late 1970's! Ignoring the photos/videos/exhibits above presented to and mentioned by the Appellate Court! The Appellate Court ignores Fred Brebes Testomony that Caltrans had maintained this drainage channel for 30 years prior to 2002! OCSD has been in charge since as seen above and in their weed abatement P. 6 of the Appellate Court Transcripts! Oceano Community Service District States: Page 390 July 10, 2008 Testimony by OCSD Employee see photo above.
Question. Okay. Now, this is a picture, 1396, of you inspecting the entrance to the 20-inch culvert; correct?
Answer. UH-UH.
Question. Are you concerned at all that the operation of this pipe could blow leaves and other debris into the pipe during its operation?
Answer. Um, well we wanted to check and make sure it didn't happen.
Question. So what's your observation?
Answer. We just look through the culvert. If you could see a culvert going a hundred feet, or whatever it goes, well it is fine. Page 391.Question. And did you observe debris blowing into this pipe on occasion?
Answer. “Blowing into it.”
Question from the operation of the discharge pipe?
Answer. No
Question Do you have any maintenance plan for the channel or the culvert with respect to debris?
Answer. NO, WE DO NOT.”
The Second Appellate Court on P. 9 of their June 28, 2010 Decision State: "(Marin v. City of San Rafael, supra, 111 Cal.App.3d at p. 596.) In other words, the city was liable because it directed the installation of, used, and owned the pipe. It even obtained an injunction to prevent plaintiffs from interfering with its operation. None of those factors are present here." The Appellate Court ignored direct testimony by Phil Davis showing the County involvement in the OCSD Prescriptive Easement pipe constructed in the Rail Roads Drainage channel! P. 385 Court Transcripts-- Question: Are you aware of any permission sought by the district, itself for operating this pipe? Answer: “Other then the Health Department, I don't know of any." (Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.)
This Same Appellate Court Stated five days eariler in Barrett v. County of Ventura--Filed 6/23/10 Barrett v. County of Ventura CA2/6 "The taking of private property for the purpose of constructing storm drainage systems has been recognized to be for a public use. (Marin v. City of San Rafael (1980) 111 Cal.App.3d 591, 595; Ullery v. County of Contra Costa (1988) 202 Cal.App.3d 562, 568; DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.) "An action in inverse condemnation will lie when damage to private property is proximately caused by use of a storm drainage system for its intended purpose." (Souza v. Silver Development Co. (1985) 164 Cal.App.3d 165, 170.) When accepted and approved by a municipality, drainage systems become a public improvement and a part of the system of public works. (Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345, 358.) "The fact that the work is performed by a contractor, subdivider or a private owner of property does not necessarily exonerate a public agency, if such contractor, subdivider or owner follows the plans and specifications furnished or approved by the public agency. When the work thus planned, specified and authorized results in an injury to adjacent property the liability is upon the public agency under its obligation to compensate for the damages 6 resulting from the exercise of its governmental power." (Id. at pp. 362-363; see DiMartino, supra, at pp. 338-339.)"
Jun 28 2010
B214906
[PDF] [DOC]Bookout v. State ex rel. Dept. of Transportation CA2/6 filed 6/28/10
"Bookout claims the evidence is credible because it is uncontradicted. He cites Joseph v. Drew (1950) 36 Cal.2d 575, 579, for the proposition that uncontradicted testimony of a witness may not be disregarded, but should be accepted as proof of the fact to which the witness testified. Indeed, there are no doubt cases where the uncontradicted testimony of a witness is so credible that no reasonable trier of fact could reject it. But this is not such a case."
"Here there is an obvious cause of the flooding. The Exchange modified the drainage by constructing a junction box and pipeline that redirected the flow of water by 90 degrees. The Exchange has settled with Bookout. Evidence that the remaining defendants contributed to the conditions that caused the flooding rests largely in Crowe's expert testimony. As helpful as expert opinion can be, such testimony carries a built-in bias: experts are most often very well paid for their opinions. The trial court had good reason to be skeptical of Crowe's testimony. We apply the usual rule on appeal that the trier of fact is not required to believe the testimony of any witness, even if uncontradicted. (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1028.) The evidence presented here did not compel the trial court to find in favor of Bookout."
The Appellate Court chose to ignore the fact that this flooding could be abated from Caltrans documents for only $43,295.00 and that the County of San Luis Obispo required the outlet for this water raised per County Permits Exhibits 1874-1875. The California Supreme Court will need to decide if this is now legal in California (Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.)and if Has any merit for California Case law?
Caltrans East Side of State Highway 1 flooding photo 2002 of complaint in exhibit # 579-----Caltrans actions in raising State Highway 1 a foot without addressing drainage off of State Highway 1! The Appellate Court States: "Here there is an obvious cause of flooding. The Exchange modified the drainage--" Excuse me why would Caltrans Raise State Highway 1 and not account for drainage!!! This Nusisance Can be Abated!
The County of San Luis Obipo in their Appellate Court brief mention "McKinley" on P. 19 but does not mention Mr. McKinley's Statement below showing Caltrans changing the drainage stabilization (Causation) of HWY 1. 13th, and Paso Robles Streets--per exhibit 579 (Causation) a change in (Date of Stabilization) and that Pismo Oceano Vegetable Exchange is not the Cause of this flooding!
Answer: (P. 643) Yeah, I responded to a communication that our maintenance engineer received from Bill Bookout, that there was ponding, A ponding issue at the corners of 13th and Highway 1 and Paso Robles and Highway 1. And so it was in response to that communication." Question: Do you know approximately which side of the State highway this ponding occurred? Answer: "It was on the East Side". " Page 645 “We reconstructed the pavement, so we put base and we put asphalt down.” “I believe we put down half a foot of A.C., I believe.
Question: (P 653 Cross-Examination by Caltrans-Exhibit photos 579) "And when you--It was your understanding that the reason this job -- You were asked to design this job was because the Plaintiff had complained about ponding on the East Side near his property, of State Route 1? Answer: Correct." --"Objection; Leading"
The Court OVERRULED.
Question: (P.. 658) “Mr. Mckinley, in that grinding crown removal project in 2003, do you recollect removing any portions of
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Appellant's Reply Brief
"Conditions in the Watershed are not Static which Entitles Appellant to a Delayed
The Appellate Court ignored direct testimony by Phil Davis showing the County involvement in the OCSD prescriptive easement pipe constructed in the Rail Roads Drainage channel! P. 385 Court Transcripts-- Question: Are you aware of any permission sought by the district, itself for operating this pipe? Answer: “Other then the Health Department, I don't know of any."
Videos as presented to Judge Tangeman of OCSD prescriptive easement of dredging debris into the Oceano Community's storm water drainage system since December 2002! Now seen on YOUTUBE-------
Oceano Community Service District Well # 8 January 13, 2007
The Appellate Court Justices--Steven Z. Perren Kenneth R. Yegan and Arthur Gilbert-on Page 10 bring up Arreola v. County of Monterey, however ignores this case as presented to the Appellate Court "(An entity that has power to control a project is liable even if it does not actively participate in it. 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]."
The Second Appellate Court ignored this written Appellant's Reply Brief Statement! "The Flooding of Appellant’s Property is a Continuous Nuisance One of the factors to determine if a nuisance is permanent or continuous is the ability to remedy the situation. Baker v. Burbank-Glendale-Pasadena Airport (1985) 29 Cal.3d 862, 869. As Appellant’s expert testified, the construction of a detention basin near the inlet of the culvert would prevent Highway One and Appellant’s property from flooding. (RT Vol. 6 Pgs.1583-1584). Also, Respondent County of San Luis Obispo and the State of California Department of Transportation designed a fix to the situation in 1987 for $43,295. (RA Exhibit 1790). The situation in this case is not a permanent nuisance, and Judge Estrada-Mullaney’s ruling preventing Appellant to proceed on his nuisance and trespass causes of action in the second phase were in error. Under this rationale, if the Respondents put a lid on the culvert today to prevent all drainage from entering it, Appellant would still not have a cause of action for nuisance, even though this new act creates more flooding and more damage." They then discredit (Mangini v. Aerojet-General Corp., supra, 230 Cal.App.3d at p. 1143.) For this nuisance that can be abated!
As seen on YOUTUBE changing the date of stabilization
The Appellate Court on Page 10 of their decision bring up (Reasonableness) In Arreola v. County of Monterey (2002) Shows Caltrans, County and OCSD liability as all were aware of this risk posed by its public improvement and deliberately chose a course of action- or inaction-in the face of a known risk. "Knowing that failure to properly maintain the Project channel posed a significant risk of flooding." "State diversion or obstruction of surface water onto land "not historically subject to flooding is not protected by reasonableness rule, but results in strict liability." JAMES ARREOLA et al., Plaintiffs and Respondents, v. --
California Supreme Court--YOUTUBE video-Inverse Condemnation
All Videos of Caltrans actions, can now be viewed on You Tube under Inverse Condemnation, Caltrans, County of San Luis Obispo and Oceano Community Service District You Tube Video of Caltrans January 4, 2007 Shoveling Debris into the Oceano Communities Storm Water Drainage System
The Second Appellate Court on Page 12 of their June 28, 2010 decision claim that this flooding is permanent---Ignoring Exhibit # 1790 and Exhibit # 1768, 1875! Even though the evidence presented to them shows, that can be abated for $42,295.00 They bring up (Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) Baker shows the accrual of a nuisance cause of action depends on whether the nuisance is permanent or continuing: “In general, a permanent nuisance is considered to be a permanent injury to property for which damages are assessed once and for all, while a continuing nuisance is considered to be a series of successive injuries for which the plaintiff must bring successive actions. (Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 868-869 (Baker).)
The Second Appellate Court ignores the fact presented to Judge Tangeman and the Appellate Court of Exhibit # 1757 of a signed Caltrans, County and OCSD contract showing that this flooding could have been abated, prior to the flooding we are seeing since 2004! Judge Tangeman was aware of the March 14, 1985 OCSD meeting inwhich Gina Davis OCSD Deputy Secretary to the Board. ATTEST Minute Order "At its regular meeting on march 13, 1985, the board of Directors of the Oceano Community Service District directed President Allen to sign amended cooperative agreement #05a239, between the State and Oceano Community Service District, covering the contribution by the District to the State for the correction of an unsatisfactory drainage condition at Mile Post 12.4 on State Highway 1."
Caltrans with Judge Tangeman's August 5, 2008 Inverse Condemnation Decision, now has a legal right to (NOT) maintain drainage off of our State Highways in California!! The Oceano Community Service District can now legally dredge debris into this Railroad property storm water County of San Luis Obispo drainage system after the County requied the outlet pond raised per exhibit #1875--County permits--(Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.)!
Caltrans States to the Regional Water Quality Control Board---January 12, 2009:
"Due to past litigation, the Department is no longer responsible or allowed
to maintain the channel located off of the Caltrans right of way. If you
would like further information about the drainage situation and the
maintenance effort at this location, which has a history beyond what can
be detailed in an e-mail, please let me know so that I can arrange a
meeting with Department staff familiar with the drainage challenges and
restrictions at this site."
Respectfully,
Pete Riegelhuth
D-5 NPDES Coordinator
Office 805-549-3375
Cell 805-305-7726"
The Oceano Community Service District use of this storm water drainage channel affecting public health and safety as seen in exhibit 579 and testified about by Caltrans!!!
Notice the Dam that the OCSD Well # 8 PVC pipe creates in this Storm Water Drainage Channel in 2002 photo before flooding and OCSD cut their pipe in 2002 leaving this discharge pipe in this channel to discharge debris into the Railroads/County drainage system????
Caltans David Fry testified to Judge Tangeman regarding Caltrans 5 Year Prescriptive Easement--construction in the Railroad drainage channel and changes made by Caltrans of the OCSD Well # 8 Pipe in December 2002 with Caltrans installing concrete bags in front of the Oceano Community Service District Well # 8 water discharge Pipe Page 931 per exhibit # 579: Answer. “Mr. Bookout called me and asked me if I could come down and look at the pipe that – A pipe that was inserted into the entrance of the culvert. So we went down there. I met with Mr. Bookout, and I also met with Phil Davis from the Oceano Community Service District. and Mr. Bookout’s concern was that the pipe was blocking the entrance and, basically, the volume of the pipe. The --The Community Service District pipe was taking up some of the space the water could flow through the culvert.” Question. Okay. Answer. “So his request was that the Oceano Community Services District cut the four-inch water pipe, shorten it so that it didn’t actually go into the entrance to the culvert.” Question. Was that done? Answer. “That was done And when we were discussing that, I suggested that they put concrete sacks at the bottom, you know, in the bottom underneath the culvert pipe coming out a few feet, so they didn’t create a wetlands there. Because , basically, dumping extra water into the culvert -–I don’t know how often OCSD flushes their water tank, but by adding extra water, if that was wet all year-round, you’d have Tules growing there and it would create a wet lands.” So by placing something solid underneath it, then you would avoid that issue, because once that issue arises, then there’s a whole new – A whole new can of worms.” Question. Additional problems? Answer. “Additional problems, Yes.” Question Regarding what level – What types of maintenance activities could be done in wetlands; Is that correct? Answer. “Correct.”
Notice Caltrans Drainage change (Prescriptive Easement) above (Concrete Bag and OCSD Pipe) as seen by Judge Tangeman and local news media per exhibit #579! with the Appellate Court decision on June 28, 2010 this action by local government in California is now Legal!
The Second Appellate Court on P. 6 of their June 28, 2010 decision ignore that this (Prescriptive Easemant) drainage situation, that has not Stabilized per the exhibits presented to them! The Appellate Court States:
"In Pierpont Inn, Inc. v. State of California (1969) 70 Cal.2d 282 (disapproved on other ground in Los Angeles County Metropolitan Transportation Authority v. Continental Development Corp. (1997) 16 Cal.4th 694), the state constructed a freeway over land owned by Pierpont. Piepont brought an action for condemnation and damages. The state demurred on the ground that Pierpont failed to file a claim under the government claims within two years of the accrual of the cause of action. The court held the claim was timely. Pierpont reasonably awaited the completion of the project to determine more accurately the exact extent to which its remaining property would be damaged. (Id. at p. 293.) Courts have subsequently cited Pierpont for the proposition that where there is continuous and repeated damage, incident to a public improvement, the limitations period does not begin to run until the situation has stabilized. (See Lee, supra, 107 Cal.App.4th at p. 857.)"
The Second Appellate Court ignored this written Appellant's Reply Brief Statement! "The Flooding of Appellant’s Property is a Continuous Nuisance One of the factors to determine if a nuisance is permanent or continuous is the ability to remedy the situation. Baker v. Burbank-Glendale-Pasadena Airport (1985) 29 Cal.3d 862, 869. As Appellant’s expert testified, the construction of a detention basin near the inlet of the culvert would prevent Highway One and Appellant’s property from flooding. (RT Vol. 6 Pgs.1583-1584). Also, Respondent County of San Luis Obispo and the State of California Department of Transportation designed a fix to the situation in 1987 for $43,295. (RA Exhibit 1790). The situation in this case is not a permanent nuisance, and Judge Estrada-Mullaney’s ruling preventing Appellant to proceed on his nuisance and trespass causes of action in the second phase were in error. Under this rationale, if the Respondents put a lid on the culvert today to prevent all drainage from entering it, Appellant would still not have a cause of action for nuisance, even though this new act creates more flooding and more damage." They then discredit (Mangini v. Aerojet-General Corp., supra, 230 Cal.App.3d at p. 1143.) For this nuisance that can be abated!
As seen on YOUTUBE changing the date of stabilizationThe Appellate Court on Page 10 of their decision bring up (Reasonableness) In Arreola v. County of Monterey (2002) Shows Caltrans, County and OCSD liability as all were aware of this risk posed by its public improvement and deliberately chose a course of action- or inaction-in the face of a known risk. "Knowing that failure to properly maintain the Project channel posed a significant risk of flooding." "State diversion or obstruction of surface water onto land "not historically subject to flooding is not protected by reasonableness rule, but results in strict liability." JAMES ARREOLA et al., Plaintiffs and Respondents, v. --
California Supreme Court--YOUTUBE video-Inverse Condemnation
All Videos of Caltrans actions, can now be viewed on You Tube under Inverse Condemnation, Caltrans, County of San Luis Obispo and Oceano Community Service District You Tube Video of Caltrans January 4, 2007 Shoveling Debris into the Oceano Communities Storm Water Drainage System
The Second Appellate Court on Page 12 of their June 28, 2010 decision claim that this flooding is permanent---Ignoring Exhibit # 1790 and Exhibit # 1768, 1875! Even though the evidence presented to them shows, that can be abated for $42,295.00 They bring up (Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) Baker shows the accrual of a nuisance cause of action depends on whether the nuisance is permanent or continuing: “In general, a permanent nuisance is considered to be a permanent injury to property for which damages are assessed once and for all, while a continuing nuisance is considered to be a series of successive injuries for which the plaintiff must bring successive actions. (Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 868-869 (Baker).)
The Second Appellate Court ignores the fact presented to Judge Tangeman and the Appellate Court of Exhibit # 1757 of a signed Caltrans, County and OCSD contract showing that this flooding could have been abated, prior to the flooding we are seeing since 2004! Judge Tangeman was aware of the March 14, 1985 OCSD meeting inwhich Gina Davis OCSD Deputy Secretary to the Board. ATTEST Minute Order "At its regular meeting on march 13, 1985, the board of Directors of the Oceano Community Service District directed President Allen to sign amended cooperative agreement #05a239, between the State and Oceano Community Service District, covering the contribution by the District to the State for the correction of an unsatisfactory drainage condition at Mile Post 12.4 on State Highway 1."
Caltrans with Judge Tangeman's August 5, 2008 Inverse Condemnation Decision, now has a legal right to (NOT) maintain drainage off of our State Highways in California!! The Oceano Community Service District can now legally dredge debris into this Railroad property storm water County of San Luis Obispo drainage system after the County requied the outlet pond raised per exhibit #1875--County permits--(Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.)!
Caltrans States to the Regional Water Quality Control Board---January 12, 2009:
"Due to past litigation, the Department is no longer responsible or allowed
to maintain the channel located off of the Caltrans right of way. If you
would like further information about the drainage situation and the
maintenance effort at this location, which has a history beyond what can
be detailed in an e-mail, please let me know so that I can arrange a
meeting with Department staff familiar with the drainage challenges and
restrictions at this site."
Respectfully,
Pete Riegelhuth
D-5 NPDES Coordinator
Office 805-549-3375
Cell 805-305-7726"
The Oceano Community Service District use of this storm water drainage channel affecting public health and safety as seen in exhibit 579 and testified about by Caltrans!!!
Notice the Dam that the OCSD Well # 8 PVC pipe creates in this Storm Water Drainage Channel in 2002 photo before flooding and OCSD cut their pipe in 2002 leaving this discharge pipe in this channel to discharge debris into the Railroads/County drainage system????
Caltans David Fry testified to Judge Tangeman regarding Caltrans 5 Year Prescriptive Easement--construction in the Railroad drainage channel and changes made by Caltrans of the OCSD Well # 8 Pipe in December 2002 with Caltrans installing concrete bags in front of the Oceano Community Service District Well # 8 water discharge Pipe Page 931 per exhibit # 579: Answer. “Mr. Bookout called me and asked me if I could come down and look at the pipe that – A pipe that was inserted into the entrance of the culvert. So we went down there. I met with Mr. Bookout, and I also met with Phil Davis from the Oceano Community Service District. and Mr. Bookout’s concern was that the pipe was blocking the entrance and, basically, the volume of the pipe. The --The Community Service District pipe was taking up some of the space the water could flow through the culvert.” Question. Okay. Answer. “So his request was that the Oceano Community Services District cut the four-inch water pipe, shorten it so that it didn’t actually go into the entrance to the culvert.” Question. Was that done? Answer. “That was done And when we were discussing that, I suggested that they put concrete sacks at the bottom, you know, in the bottom underneath the culvert pipe coming out a few feet, so they didn’t create a wetlands there. Because , basically, dumping extra water into the culvert -–I don’t know how often OCSD flushes their water tank, but by adding extra water, if that was wet all year-round, you’d have Tules growing there and it would create a wet lands.” So by placing something solid underneath it, then you would avoid that issue, because once that issue arises, then there’s a whole new – A whole new can of worms.” Question. Additional problems? Answer. “Additional problems, Yes.” Question Regarding what level – What types of maintenance activities could be done in wetlands; Is that correct? Answer. “Correct.”
Notice Caltrans Drainage change (Prescriptive Easement) above (Concrete Bag and OCSD Pipe) as seen by Judge Tangeman and local news media per exhibit #579! with the Appellate Court decision on June 28, 2010 this action by local government in California is now Legal!
The Second Appellate Court on P. 6 of their June 28, 2010 decision ignore that this (Prescriptive Easemant) drainage situation, that has not Stabilized per the exhibits presented to them! The Appellate Court States:
"In Pierpont Inn, Inc. v. State of California (1969) 70 Cal.2d 282 (disapproved on other ground in Los Angeles County Metropolitan Transportation Authority v. Continental Development Corp. (1997) 16 Cal.4th 694), the state constructed a freeway over land owned by Pierpont. Piepont brought an action for condemnation and damages. The state demurred on the ground that Pierpont failed to file a claim under the government claims within two years of the accrual of the cause of action. The court held the claim was timely. Pierpont reasonably awaited the completion of the project to determine more accurately the exact extent to which its remaining property would be damaged. (Id. at p. 293.) Courts have subsequently cited Pierpont for the proposition that where there is continuous and repeated damage, incident to a public improvement, the limitations period does not begin to run until the situation has stabilized. (See Lee, supra, 107 Cal.App.4th at p. 857.)"
From: Patrick O'Reilly [mailto:patrick@oceanocsd.org] I spoke with Dean Benedix at I would recommend that we appoint a new alternate member to replace Director Bookout on the Zone 3 committee. If we do not do that, we will only have the primary member who is Director Dean. Patrick O'Reilly General Manager Oceano Community Services District Office Phone 805-481-6730 Cell Phone 805-458-5139 Bill Tatum 1539 Fountain Ave. ---2001 flooding of Larry A Baughman--Owner of Chuck Bachman--1519 and Marquis Miller 548 Honolulu "Heavy Rains overflow lagoon" Less Brown-- Jesser Esser--608 Air park Dr. "Storm Water Drainage Ditch next to John W. Carter 1778 Aloha Place Mary Fernald 590 Honolulu St. Problems in last five years David and Penny Villalba 567-571 Raoul Cristin Jan Dilo, Department of R. George Rosenberg, Deputy Director of General Services County Of San Luis Obispo Cynthia M. Joselson/Dennis A.Huebner---Photos Franklin C. Owen --Flooding in the In County of San Luis Obispo Files with drainage Studies and Color photos that where not part of Exhibit # 579 presented to Judge Tangeman! September 7, 1990 October 1, 1990 October 17, 1990 Letter from John L. Wallace to OCSD Drainage in Oceano, January 15, 1991 March 15, 1991 May 3, 1991 OCSD letter to SLO County Analysis of OCSD Storm Drainage Problem regarding future County Building Permits September 23, 1991 letter to Ruth Bracket Sidewalks September 25, 1991 letter from Ruth Brackett not talking about Paso Robles and 13th streets November 18, 1991Oceano Halcyon Advisory Committee minutes Drainage in Oceano not Paso Robles and 13th streets ally ways sidewalks February 10, 1992 Draft letter Sidewalks February 12, 1992 OCSD Meeting minutes Regarding Cienaga flooding County Responsibility Drainage Director Baughman. March 11, 1992 OCSD letter regarding Flooding of Oceano Slough below State Highway 1 February 10, 1993 OCSD Minutes 11 C. Video of flooding problem on highway 1 June 8, 1993 OCSD memorandum Meeting on Arroyo Grande outfall February 23, 1994 OCSD meeting minutes Concerns West of State highway 1 February 25, 1994 San Luis Obispo County Sanitation District letter to Tony Boyd County Engineering Dept. July 26, 1995 OCSD Meeting minutes Cienaga flooding problem Concern with railroad subdividing their property. A problem at Paso January 10, 1997 OCSD Letter to planning Commission County of San Luis Obispo October 8, 1997 OCSD meeting Minutes Drainage Problems Bill Bookout Specifically on Airpark and May 13, 1998 OCSD meeting Minutes "Front and Cienaga Drainage problem October 14, 1999 San Luis Obispo County letter and documents of concern to Union Pacific Railroad regarding Cienaga Drainage not Paso Robles St. January 25, 1999 letter from OCSD to Khatchik h. Achadjian-issues-Flooding and Drainage channel behind January 29, 1999 February 5, 1999 OCSD letter to County regarding highway 1 Drainage issues not Paso Robles street. November 10, 1999 Louis e. Wheeler letter to K.H. Achadjian Whiteness Direct knowledge of State Highway 1 Drainage that Molly Thurmond, ESQ. (SBN 104973) and The County of San Luis Obispo Dean Benedix withheld from Discovery! Jay Jamison showing no flooding in 2002 with his knowledge of Highway 1. Mark Hutctenreuther, knowledge of highway 1 Loni Silkwood, 1611 Paso Robles St Knowledge of highway 1--. Jak Harris, knowledge of highway 1 Stanly Manel, knowledge of highway 1 Wilford P. Deschenes, knowledge of highway 1 R. Bliver, knowledge of highway 1 Jerry Bunin, 2280 Paso Robles St. Knowledge of highway 1-- Luis Wheeler, knowledge of highway 1 with photos taken of highway 1 and withheld from discovery including drainage in front of Oceano Market and Oceano Nursery. Larry A Baughman--Owner of "We Own a home at Daniel Dena Neill-- Josue Astrero,Larry A Baughman--Knowledge of Pat Clegg, Knowledge of Sharon Collester, Knowledge of Alan & Liane Barta, Knowledge of Wando Cebulla, Knowledge of Fred Cheda, 2231 Paso Katherine B. Escobar 1627 Front Street, Knowledge of Ben Harvey knowledge of Cal Trans changes to State Highway 1 Marylice Mankins Eric Johnson Ally way knowledge Herb West Knowledge of Mark and Kristine Munro County Blaime wasting money on Study Yvonne Putman 2591 Paso Robles-- Robert W. Raymond, Knowledge of State Highway 1--poor county planning--County Eng. Photos Charles E Royal 1561 16th between Warner and Wilmar Errosion problems Chris & Linda Schroder 'The End of 13th st. at Cienaga James &Throck Scudder --"Warner & 15th-water travels down 15th and Warner" Dean Sorensean 561 Security Court 'Several inches to 1 foot depending on amount and length of rain Ailo Stananage 547 Dan Striciculerda Fred Van Slyke flooding at cienaga 7 front every time it rains The judgment is affirmed. Costs are awarded to respondents. NOT TO BE PUBLISHED. GILBERT, P.J. We concur: YEGAN, J. PERREN, J." Below are facts as decided in Yue v. City of Auburn 3 Cal.App.4th 751 The Second Appellate Court mistook these facts and I would like to have them in the record as we go to the California Supreme Court? The fact that the Second Appellate Court on June 23, 2010 stated in Barrett v. County of Ventura—Filed 6/3/2010 Frustuck v. City of Fairfax (1963) Frustuck v. City of Fairfax (1963) The Second Appellate talks about this in Barrett v. County of Ventura--Filed 6/23/ “Burrows v. State of Burrows noted, "in ... surface water cases we do not usually deal with unintended, though foreseeable consequences of acts or omissions, but rather with intended results which may or may not be reasonable, depending on all of the circumstances." (Burrows v. State of California, supra, 260 Cal.App.2d at p. 34.) Inns v. San Juan Unified School Dist. (1963) 4] A cause of action for inverse condemnation based on surface water damage must conform to the general inverse condemnation principles set forth in Albers v. County of Los Angeles (1965) 8] Plaintiffs allege that the city's unreasonable "failure to recognize" the obvious problem in design, and its corresponding unreasonable "failure to upgrade" the existing drainage system, resulted in damage to their property. Defendant contends these allegations undermine plaintiffs' cause of action for inverse condemnation because defendant is under no duty to upgrade existing systems to prevent damage caused by any and all future storms. But defendant is relying on inapposite flood control cases for authority. (E.g., Tri-Chem, Inc. v. Los Angeles County Flood Control Dist. (1976) Unlike the cited cases, plaintiffs are not alleging defendant had a duty to build or upgrade a flood control system to prevent naturally occurring flood waters from flowing onto plaintiffs' land. (Tri-Chem, supra, 60 Cal.App.3d at pp. 308-312; Shaeffer, supra, 22 Cal.App.3d at pp. 1019-1021.) Instead, they are contending defendant approved the development of a subdivision, which increased the flow of surface waters, then built a culvert to divert these surface waters even though defendant knew, or should have known, the new culvert would empty into an existing drainage system with a significantly smaller capacity, inevitably causing plaintiffs' land to be flooded. In other words, plaintiffs are alleging defendant had a duty to prevent harm to plaintiffs' land caused by conditions defendant approved or created. Since the cited cases do not hold that a defendant has no duty to upgrade an existing drainage system to accommodate an increase in and diversion of surface waters caused by the defendant, defendant's reliance on these cases is unavailing. [3 Cal.App.4th 764] All of this information has been found with the Appellate Courts June 23, 2010 decision in Barrett v. County of Ventura--Filed 6/23/10 This is enough to bring this back to this Appellate Court for reconsideration! ?FN 2. Private property shall not be taken or damaged for public use without just compensation having first been made to ... the owner. ..." ( ?FN 3. Reasonableness in the context of surface water inverse condemnation cases has to do with balancing the utility of the public project against the gravity of the harm caused to the plaintiff. "[T]he gathering of surface waters into a system of impervious storm drains which follow natural drainage routes may result in greatly increased volume, velocity and concentration of water, and thus may constitute an unreasonable method of disposing for such water when weighed against the seriousness of the resulting harm to lower landowners whose property is damaged as a result." (Van Alstyne, op. cit. supra, 20 Hastings L.J. at pp. 451-452, fn. omitted.) 
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"The determination of when the statute of limitations begins to run is a question of fact. (Lee, supra, 107 Cal.App.4th at p. 857.) Here the trial court determined that the date of stabilization theory does not apply. The court found that the last improvements to the drainage system were constructed by the Exchange in the late 1970's, and that the flooding problem was relatively consistent and static for several years prior to the time Bookout purchased his property in 2000."
"Bookout challenges the trial court's findings by listing what it characterizes as changed conditions since the Exchange constructed the junction box in the 1970's. The alleged changed conditions include: maintenance activities, modifications to Well No. 8, weed abatement, removal of a retaining wall, alteration of Highway 1, shoveling and grading of debris, accumulation of debris, and an increase in impervious surfaces. But none of these alleged change of conditions compelled the trial court to conclude that the flowing was not relatively consistent and static for several years prior to Bookout's purchase of his property" The Second Appellate Court Justices--Steven Z. Peren--Kenneth R. Yegan--Arthur Gilbert ignored the County 1985 Building Permits Exhibits # 1874, 1875 as presented to the Appellate Court Requiring POVE to raise the OCSD, Caltrans, RR, County Drainage HWY Outlet State, Caltrans, County, RWQCB Drainage to the Pacific Ocean--Involving Toxic Waste!PDF...
Cal Trans November 26, 2008 after Judge Tangemans Decision calling this being a good neighbor! YOUTUBE Video...
RE: Statute of Limitations and Prejudicial Error in regards to evidence withheld from discovery/trial by the County of San Luis Obispo and Molly Thurmond, Esq. (SBN 104973)Exhibit #579 (Appendix 15) Prejudicial Error or Not? Photo/Statement Documents withheld by County Of San Luis Obispo And Railroad at trial as allowed by Judge Tangeman, as Judge Tangeman Stated "All Right" County of San Luis Obispo Causation in permits and drainage requirements on private property. OCSD and Caltrans correcting 2002 drainage complaint problems in 2002/2003 as stated in exhibit #579 Complaint Photos, Caltrans-McKinley Testomony P. 645 and (RA exhibit #1768) changing the Statute of Limitations! Date of Stabilization per Caltrans photos below per complaint! Judge Tangeman mishearing Caltrans Testomony, that from 2002 and prior Caltrans had a 30 year history of maintaining this drainage channel with Caltrans equipment rather then shoveling and grading debris into this drainage channel since! OCSD Prescriptive Easement (Taking) giving a 5 year statute of limitations
In the SECOND APPELLATE DISTRICT DIVISION SIX Decision--Barrett v. County of Ventura CA2/6 filed 6/23/10 shows Formal acceptance by Caltrans, County of San Luis Obispo and the Oceano Community Service District as with their; Dominion and Control Exercised by the public entity over property necessary for inverse liability may be implied from the performance by the entity of maintenance and repair work or other official acts of control over the property.(Ackley v. City Etc. of San Francisco, supra, 11 Cal.App.3d at p. 113; Yox v. City of Whittier, supra,182 Cal.App.3d at p. 353; Ullery v. County of Contra Costa, supra, 202 Cal.App.3d at pp. 568-569.)
Caltrans-Exhibit # 579 Photos taken by Caltrans in regards to complaint in Exhibit # 579 showing Flooding!
Notice photos below withheld from discovery by the County of San Luis Obispo of Caltrans maintaining drainage channel in summer 2002! Photo of Caltrans flooding east side of State Highway 1 per Exhibit # 1789!
Judge Tangeman would not allow Exhibit # 1789 in evidence which deals with Caltrans prior statements and the photos in Exhibit # 579 withheld from discovery, as it states: “The State could raise the height of Highway one approximately one foot and leave both the County and the Oceano Community Services District the problem to solve on their own (P. Hom)”
Molly Thurmond, ESQ. (SBN 104973) and Thomas A Cregger, ESQ. (SBN 124402) both knew at the time of trial that both had knowledge of these Causation/Date of Stabilization-Prescriptive Easement-Photos and Documents, Whitness's that they withheld from discovery and Judge Martin J. Tangeman! ( DURING TRIAL.) Hall, Hieatt & Connely, LLP on July 30, 2008 provided Questionnaires and redacted the whitness's names!. The color photos above where not provided until December 2, 2008 after trial as previously requested. Dean Benedix, County response No. 1--October 16, 2008 States: "If you would like us to provide you with copies of the redacted responses, we will produce such copies once you have paid the estimated copying cost of $50.00." Dean Benedix, County response No. 2--October 16, 2008 "Response: We will produce copies of the requested attachments and photographs per your request once you have paid the estimated coping costs of $15.00."
Lou Wheeler photos-Documents showing no flooding prior to 2004 --as viewed by Dean Benedix, Randy Ghezzi, Raleigh Greene, Max Keller, Cliff Howe, Michael Eckman per Dean Benedix statement: "I believe the attached photos are from Lois Wheeler of Oceano 481-5687 D Benedix 6/10/02"
Response No.3 from Dean Benedix After trial regarding documents wittheld from discovery by the County of San Luis Obispo! "We will produce copies of written communications and photos (in Color) Sent by oceano community members to Questa Engineering or the County of San Luis Obispo in regards to flooding in Oceano between 2000-2004 per your request once you have paid the estimated coping costs of $10.00."
The Second Appellate Court in their June 28, 2010 decision allows this type of withholding of evidence!
County Of San Luis Obispo--R. George Rosenberg, Deputy Director of Exhibit 579 YOUTUBE...
San Luis Obispo County/Union Pacific Railroad Exhibit # 579 photo documents withheld from discovery by County of San Luis Obispo and Union Pacific Rail Road shows Caltrans raising State Highway 1 a foot and the flooding problem on east side of State Highway 1 this created, as stated in the document provided with County 2002 Drainage Study Questionnaire! These color photos where provided December 2, 2008 and are not part of (Appendix 15) showing no Stabilization to this drainage system!
San Luis Obispo County Exhibit # 579 documents withheld from discovery by the County deals with prior County Inverse Condemnation by the County of San Luis Obispo in the Al Baughman property west of State Highway 1! In exhibit 1789 Caltrans States: "One of the members of the Oceano Commuinty Service District is an owner of property downstream from project (P. Hom)."
Glenn Priddy of the County of San Luis Obispo testified: "Are you aware of proposals for resolving the drainage problem at -- That we've referred to previously? Are you aware of proposals to resolve that problem dating back into the eighties?" Answer. Yes. Question. And have you raised issues with the respect to proposed solutions due to downstream impacts? Answer. “I have – There have been issues raised about potential downstream impacts since the eighties, and I –In the most recent discussions, I’ve pointed that out as something that needs to be looked at.” Ms Thurmond States: “Again, this is outside the water shed, not affecting Bill Bookout’Ex-OCSD Director Larry Baughman states in the documents that the County of San Luis Obispo withheld from discovery in exhibit # 579. "We Own a home at
The Oceano Airport and the Larry Baughman Property Flooding prior to 2004 as talked about in Exhibit # 579 documents withheld from Discovery/Trial by the County of San Luis Obispo!
The San Luis Obispo New Attorney's Porter Scott--Terence J. Cassidy, SBN 99189 and Thomas L. Riodan, SBN 104827--- in their Respondents Brief mention exhibit 579 defending the prejudicial error that the County of San Luis Obispo made in withholding evidence from discovery and their attempt to get out of "Harsh Discovery Sanctions" As there is plenty of evidence showing their Intentional Concealment of Evidence before and after trial! The County States: "In any event, whatever error the trial court made regarding this solitary document was harmless in light of other admissible evidence demonstrating the Plaintiff became aware of the causes of flooding damage to his property no later then 2002." (Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.) Needs to hold the County accounable for withholding evidence from discovery!
Why would a California Superior Court Judge not allow Exhibit # 1789 into evidence and then admit in against protest partial evidence, Exhibit # 579? As stated in the Court Transcripts by Union Pacific Railroad and Judge Tangeman? “And for the purpose of the exhibits we don’t need the photographs.” The Court States: “All Right” Judge Tangeman after his August 5, 2008 Inverse Condemnation Decision States on P. 2117-2018 without acknowledging the photographs, regarding other documents withheld from discovery. "I accept Mr. Belsher's argument these questionnaires where not available at that time. They weren't available until July 30th." "no fruther information was forthcoming and now the questionnaires are here I guarantee they are voluminous, I haven't even read through all of them."
Caltrans States in Exhibit # 1789 September 15, 1987? “It was believed that our proposed plan of installing a 36-inch pipe to replace an existing 24- inch pipe would be acceptable to the property owners if it could be shown that the project would only affect the downstream owners minimally.”
“And that even though there had been some light rainfall years there is a good possibility of heavy flooding in this area in the future of both the Highway areas and the County areas.”
“The State could raise the height of Highway one approximately one foot and leave both the County and the Oceano Community Services District the problem to solve on their own (P. Hom)”
Caltrans and the County of San Luis Obispo knew before raising State Highway 1-13th and Paso Robles Streets as seen in Exhibit # 1785 May 14, 1987 that all prior drainage problems could have been abated! Caltrans States: “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.”
If a retention or detention pond of sufficient size could be constructed next to the highway on railroad property the existing culvert may work with a few changes such as lowering the outlet of the POVE pond. This Idea would protect the downstream people from flooding. One problem with the retention pond would be the fact that the existing culvert’s flow line is too high to drain the pond. There-fore most of the pond water would never drain through.”
County Exhibit 579 documents withheld from discovery shows the County of San Luis Obispo talking about the flooding of their Airport Property next to the Baughman property! "Northeast side of Oceano Airport Runway adjacient to Fountain Ave. Approx. 30,000 SQ. FT several inches deep, occuring annually." "This study is a major concern for the Oceano Airport and the need to protect and preserve the Airport." "Oceano Airport is part of an overall 'Airport system' which is heavily regulated by the Federal Government (FAA). Any Impacts to the Airport will Require Extensive Review." R. George Rosenberger, Deputy Director of General Services County Of San Luis Obispo
County Of San Luis Obispo--Deputy Director of General Services--George R. Rosenberger..YOUTUBE.
This E-mail from OCSD General Manager Patick O' Reilly, ties in with the County Of San Luis Obispo Withholding of Evidence regarding Dean Benedix and documents within Exhibit # 579 involving Fred Brebes of Caltrans and Fountain Ave. Flooding that Judge Tangeman stated "no further information was forthcoming and now the questionnaires are here I guarantee they are voluminous, I haven't even read through all of them." This is a very large Prejudical Error, that now affects every California residents health and Safety on State Highway 1 in Oceano!
Sent: Wednesday, April 23, 2008 8:52 AM
To: 'Hill, James E'; 'Bill Bookout'; 'Vern Dahl'; 'Pamela Dean'; Bjm8923@cs.com
Cc: 'Gina Davis'
Subject: Zone 3 Committee Assignment
Caltrans plowing through State Highway 1 while the Baughman property is not flooded as seen in Exhibit #579 withheld by the County San Luis Obispo. 
The Respondent's Brief's by the County of San Luis Obispo have chosen to lie to the Appellate Court in regards to evidence presented at trial!
This person's life is put in danger for a flooding problem created by Caltrans, County of San Luis Obipo and the Oceano Community Service District that could be abated for only $43,295.00 as seen in Caltrans documents!!! The County on P. 4 of their Respondent's Brief States: "The nuisance alleged by Plaintiff is a permanent one, difficult to abate, not a continuous one for which a new cause of action accrues upon each flood." "In addition, Plaintiff suggests no evidence that might have established the County's Liability for such torts, which require at least as much direct conduct and causation from the County, as compared to inverse condemnation." The County States on P. 29 of their Respondent's Brief States--under Statute of Limitations "A continuing nuisance is one that may be easily or inexpensively abated by the defendant," As seen in Caltrans, County and Oceano Community Service District Documents presented to Judge Martin J. Tangeman this flooding can be easily abated for only $43,295.00!!!!!
County Of San Luis Obispo Withholding of Evidence from Discovery Exhibit # 579 endangering Oceano Residents!...
County
"Water At The Corner Of 13th/Paso Robles/And Highway 1 Runs (Drains) Under The Railroad Tracks Across
Judge Martin J. Tangeman Stated September 12, 2008 in regards to these (Redacted) whiteness statements and evidence withheld from discovery above! "No further information was forthcoming and now the questionnaires are here I guarantee they are voluminous, I haven't even read through all of them." "But I think it's imcumbent to demonstrate to the court exactly which factual assertation and which witness would actually produce evidence which would result in a basis for a new trial."
The Appellate Court ignored direct testimony by Phil Davis showing the County involvement in the OCSD pipe constructed in the Rail Roads Drainage channel! P. 385 Court Transcripts-- Question: Are you aware of any permission sought by the district, itself for operating this pipe? Answer: “Other then the Health Department, I don't know of any."
Why would the State of California/Caltrans raise a State Highway as seen in exhibit #579 withheld from discovery and then grade and shovel contaminated storm water debris into a storm water drainage channel as a Community Service District; Dams and Dredges, Debris in this man made storm water drainage channel?
Trial Briefs ignored by Judge Tangeman regarding Arreola V. Monterery 2002...
California State Highway Patrol YOUTUBE Helping Public May 21, 2006
California State Highway Patrol Helping Public with Flooding May 21, 2006
State Senator Abel Maldonado and Assemblyman Sam Blakeslee's Help and letters of support pdf...
In Exhibit 1789 dated September 15, 1987; Caltrans States: " The County provided the permit to the railroad and/or its tenant for the new building construction that now impedes the drainage flow which is the reason that makes this project necessary."
YOUTUBE Video-Causation-NO Date Of Stabilization
Judge Tangeman Stated in regards to the video above presented to him at trial. "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 No. 8, there was an absence of evidence that such discharges occurred contemporaneously with heavy rains and flooding problems." Please view the video above taken January 13, 2007 talked about by Judge Tangeman! Judge Tangeman August 5, 2008 Decision not looking at evidence and testimony at trial PDF..
California Supreme Court--Steve Price Caltrans District 5-Inverse Condemnation Caltrans Steve Price, deputy district director for area operations and maintenance talks about the fix of the flooding of State Highway 1 would ...
Caltrans District 5 YOUTUBE Inverse Condemnation Caltrans District 5 Inverse Condemnation December 2006 interview with Caltrans----Notice the Oceano Community Service District Prescriptive Easement for well # 8 pipe submerged pipe under flood water as Caltrans looks on...
Judge Tangeman States having acknowledged OCSD use of this Drainage system on Railroad property: "I find that there has been no establishment of prescriptive easements by any of the governmental entities over the private property of the railroad." "I also find that there was insufficient evidence of causation as to Oceano Community Service District, County of San Luis Obispo, State of California as between their acts and conduct and the flooding, especially given the problems associated with the drainage across the private property of the railroad and/or of P.O.V.E., without necessity to distinguish between those two entities."
The Second Appellate Court on P. 10 of their June 28, 2010 Appellate Cour Decision has Ruled: "Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 753-754.) But Bookout fails to point to anywhere in the record that the trial court applied the reasonableness test instead of strict liability. In any event, the court's ruling was based on the statute of limitations and failure to prove causation. The results are the same under the reasonableness test or strict liability. The defendants prevail."
The Second Appellate Court on P. 13 of their June 28, 2010 Appellate Cour Decision has Ruled: "All Mangini was trying to say is that a nuisance can still be continuous even after the offensive conduct has ended. The nuisance or trespass alleged here is permanent. The three-year statute of limitations bars Bookout's causes of action for nuisance and trespass."
The
Caltrans Drainage from State Highway 1 per Exhibit # 1772 Dated December 17, 1973 photos and statements shows this 90 degree drainage turn going back to 1953. POVE (Exchange) did not redirect the flow as ruled by the Appellate Court!
This Flooding can be abated and it will take the States News Media and National News to bring this out as our Case goes to the California Supreme Court, in regards to how the Appellate Court applied (Nuisance) (Trespass) (Causation) (Prescriptive Easement)(Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.) and Statute of Limitations! No County in California should be allowed to Require drainage systems raised as seen in County Of San Luis Obispo Building permits in 1985
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SIX
____________________
WILLIAM BOOKOUT, individually
and dba OCEANO NURSERY,
Plaintiffs/Appellants,
vs.
STATE OF CALIFORNIA -
DEPARTMENT OF
TRANSPORTATION; COUNTY
OF SAN LUIS OBISPO; OCEANO
COMMUNITY SERVICES
DISTRICT; and
UNION PACIFIC RAILROAD,
Defendants/Respondents
))))))))))))))))
Second Appellate No. BB214906
Appeal from the Judgment of the
Superior Court of San Luis Obispo
County Case No. CV 060384
Hon. Martin J. Tangeman, Presiding
Phase One - Inverse Condemnation
Liability
Hon. Teresa Estrada-Mullaney, Presiding
Phase Two
____________________
APPELLANT’S REPLY BRIEF
____________________
John W. Belsher, #103088
Gregory A. Connell, # 233228
BELSHER & BECKER
412 Marsh Street
San Luis Obispo, CA 93401
(805) 542-9900
slolaw@belsherandbecker.com
Attorneys for Plaintiff and Appellant
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SIX
____________________
WILLIAM BOOKOUT, individually
and dba OCEANO NURSERY,
Plaintiffs/Appellants,
vs.
STATE OF CALIFORNIA -
DEPARTMENT OF
TRANSPORTATION; COUNTY
OF SAN LUIS OBISPO; OCEANO
COMMUNITY SERVICES
DISTRICT; and
UNION PACIFIC RAILROAD,
Defendants/Respondents
))))))))))))))))
Second Appellate No. BB214906
Appeal from the Judgment of the
Superior Court of San Luis Obispo
County Case No. CV 060384
Hon. Martin J. Tangeman, Presiding
Phase One - Inverse Condemnation
Liability
Hon. Teresa Estrada-Mullaney, Presiding
Phase Two
____________________
APPELLANT’S REPLY BRIEF
____________________
John W. Belsher, #103088
Gregory A. Connell, # 233228
BELSHER & BECKER
412 Marsh Street
San Luis Obispo, California 93401
Telephone: (805) 542-9900
slolaw@belsherandbecker.com
Attorneys for Plaintiff/Appellant
i
TABLE OF CONTENTS
PAGE
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. LEGAL DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. A Three-Year Statute of Limitation is not a Complete Defense to this Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. Conditions in the Watershed are not Static which Entitles Appellant to a Delayed Accrual Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 C. The Flooding of Appellant’s Property is a Continuous Nuisance . . . . . . . . 1 D. Respondent’s Subversion of the Civil Discovery Act has Prejudiced Appellant’s Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 E. Appellant did not Ignore any Contrary Evidence . . . . . . . . . . . . . . . . . . . . 1
III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
CERTIFICATE OF WORD COUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
PROOF OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ii TABLE OF AUTHORITIES
Cases Page
Akins v State
(1998) 61 Cal.App.4th 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Arreola v. County of Monterey
(2002) 99 Cal.App.4th 722. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4
Belair v. Riverside County Flood Control District
(1988) 47 Cal.3d 550 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Lee v. Los Angeles County Metropolitan Transportation Authority
(2003) 107 Cal.App.4th 848 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Lyles v. State of California
(2007) 153 Cal.App.4th 281 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Pacific Bell v. City of San Diego
(2000) 81 Cal.App.4th 596 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4
Skoumbas v City of Orinda
(2008) 165 Cal.App.4th 783 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Statutes
Code of Civil Procedure § 338(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1
I.
INTRODUCTION
Appellant presents this reply to Respondents Oceano Community Services District,
County of San Luis Obispo, Union Pacific Railroad, and State of California - Department of
Transportation’s Brief.
II.
LEGAL DISCUSSION
A. A Three-Year Statute of Limitation is not a Complete Defense to this Action.
Respondents argue that the three-year statute of limitation found in Code of Civil
Procedure 338(j) is a complete defense to this action. Appellant has argued in it opening
brief that a five-year statute of limitation for a permanent continuing taking should apply
since these Defendants have created a drainage basin on Appellant’s property during any
substantial rainstorm. See Appellant’s opening brief, pgs 8-10.
Assuming, arguendo, that Appellant is held subject to a three-year statute of
limitation, the conditions at the Subject Property warrant successive three-year time periods
after each flood, since the conditions change every year and his property and inventory were
damaged differently during each flood. A continuous and repeated course of conduct causing
damages to one’s property which have not stabilized does not begin the accrual of a cause
of action. Lee v Los Angels County Metropolitan Transportation Authority (2003) 107
Cal.App.4th 848, 858. It is not argued that the culvert was still under construction when
2
Appellant’s property first began flooding, but that these Defendants continued to assert
control, use, perform haphazard maintenance, and alter the conditions of the watershed every
year which destabilizes the conditions at the drainage facility and causes the floods.
Respondents and the trial court cite to Lyles v State of California (2007) 153
Cal.App.4th 281, in support of their position that a three-year statute of limitation completely
bars Appellant’s action. Lyles v. State of California dealt with a one-time flood allegedly
caused by an inadequate drainage system surrounding Highway 1. This case did not address
how to apply the three-year statute of limitation when there are successive, periodic floods
every year. In Appellant’s situation, each flood creates a new statute of limitation since the
type of haphazard maintenance, severity of rain storm, upstream watershed conditions,
OCSD Well #8 operations, and the level of inlet storage capacity are different but existing
upon each flood.
B. Conditions in the Watershed are not Static which Entitles Appellant to a Delayed
Accrual Date
There have been several actions and modifications by Respondents to the drainage
chanel and watershed which are a cause of the flooding of Appellant’s property. Judge
Tangeman held that date of stabilization approach does not apply since the last improvements
to the drainage system were completed in the late 1970's and the flooding was consistent and
static for several years prior to the date the Plaintiff purchased his property (Appendix #13).
Below is a summary of the actions by Respondents which have changed the drainage
3
conditions relative to Appellant’s property since the construction of the junction box in the
late 1970's:
i) Maintenance activities in the drainage chanel. (Respondent’s Appendix
“RA” Exhibit 1768; Reporters Transcript “RT” Vol. 2 Pg 382-400; RT
Vol 6 Pg 1506-1507; Exhibit 1446-1447).
ii) Modification of Well #8 discharge pipe by OCSD. (RA Exhibit 1768)
iii) Operation of Well # 8 (RT Vol 2 Pg. 383)
iv) Weed abatement in the drainage chanel by OCSD. (RA Exhibit 1768;
RT Vol 6 Pg 1545)
v) Removal of retaining wall by Caltrans (RT Vol 3 Pg 642-643).
vi) Alteration of Highway One in the year 2002/2003 by Caltrans. (RT Vol
3 Pg 645-646)
vii) Alteration of Highway One in the year 2005/2006 by Caltrans (RT Vol
3 Pg 645)
viii) Constant shoveling and grading of debris into drainage chanel by
Caltrans. (RT Vol 4 Pgs 916-917, 920; Exhibits 1466-1467, 1513-1519)
ix) Accumulation of sedimentary debris in drainage chanel which reduces
storage capacity. (RT Vol. 4 Pg 920; RT Vol 6 Pg 1534; RT Vol. 6 Pgs.
1546-1551)
x) Increase in impervious surfaces in the watershed (RT Vol.6 Pgs 1572).
4
These activities have slowly destabilized any static condition in the watershed which
may have existed after the junction box modification in the late 1970's. Although there has
been conflicting evidence of when Appellant’s property first began flooding, these changes
in the watershed afford Appellant a delayed accrual date until the conditions remain
unchanged, which to date has not happened. If conditions have been static since the late
1970's as held by Judge Tangeman, why did it take 30 years for Plaintiff’s property to begin
flooding?
C. The Flooding of Appellant’s Property is a Continuous Nuisance
One of the factors to determine if a nuisance is permanent or continuous is the ability
to remedy the situation. Baker v. Burbank-Glendale-Pasadena Airport (1985) 29 Cal.3d 862,
869. As Appellant’s expert testified, the construction of a detention basin near the inlet of
the culvert would prevent Highway One and Appellant’s property from flooding. (RT Vol.
6 Pgs.1583-1584). Also, Respondent County of San Luis Obispo and the State of California
Department of Transportation designed a fix to the situation in 1987 for $43,295. (RA
Exhibit 1790). The situation in this case is not a permanent nuisance, and Judge Estrada-
Mullaney’s ruling preventing Appellant to proceed on his nuisance and trespass causes of
action in the second phase were in error. Under this rationale, if the Respondents put a lid
on the culvert today to prevent all drainage from entering it, Appellant would still not have
a cause of action for nuisance, even though this new act creates more flooding and more
damage.
5
D. Respondent’s Subversion of the Civil Discovery Act has Prejudiced Appellant’s
Case
Respondents have argued that the admittance of Exhibit 579 was not prejudicial and
was proper. The Civil Discovery Act requires all parties to make reasonable attempts to
respond to discovery in a timely manner and reasonable and diligent attempt to locate
requested documents. Exhibit 579 was never produced during discovery, and should have
been withheld from the trial after Appellant’s proper objection. Although admittedly
authored by Appellant, he did not remember completing the questionnaire and its use during
trial was a complete surprise to Appellant. (RT Vol.5 Pgs. 1219-1221). This error goes
beyond the mere non-disclosure of one document, all the responses to the questionnaires
presented to the Respondent County of San Luis Obispo from the public were withheld from
production. (Appendix # 14, 15). These additional withheld questionnaires from other
residents in the community contain possible new facts and new witness which could have
substantiated Appellant’s assertions regarding the date of accrual and the conflicting
testimony regarding the beginning of the flooding of his property. The admittance of Exhibit
579, and the discovery of additional facts and possible new witnesses substantiate the
prejudicial error and the necessity of a new trial.
E. Appellant did not Ignore any Contrary Evidence
Both Respondent County of San Luis Obispo and State of California - Department of
Transportation argue that Appellant has waived any argument concerning the sufficiency of
6
the evidence by failing to acknowledge both favorable and unfavorable evidence in its
Appendix. Appellant disagrees with this assertion, and submits it carefully considered all the
evidence presented at trial, and introduced in the appendix and brief only that evidence which
relates to the issues on appeal. While great care must be taken to furnish an adequate record
on appeal, it is also important to avoid including unnecessary material in the record. If any
party has required the inclusion of “any matter not reasonably material to the appeal's determination,” the appellate court can sanction the offending attorney and/or party by
withholding or assessing costs or imposing any other penalties deemed appropriate under the circumstances. CRC 8.276(a)(2); Garcia v. Lucindo (1961) 191 Cal.App.2d 303, 308. Balancing these duties, Appellant is not sure which evidence it did not included in its Appendix which he should have reasonably anticipated would be relied upon by Respondents. In any event, Respondents properly submitted their supplemental appendix with additional reference to Exhibits entered at trial. /// /// /// /// /// /// /// 7
III.
CONCLUSION
For the foregoing reasons and those contained in Appellant’s Opening Brief,
Appellant respectfully requests that this Court reverse Judge Tangeman’s ruling for Judgment
on the First Phase of the trial for Inverse Condemnation Liability, reverse Judge Estrada-
Mullaney’s ruling for Judgment on the Pleadings for the Second Phase of the trial, and order
a re-trial of this case on the issues presented therein.
Dated: January 26, 2010 BELSHER & BECKER
By: ______________________
Gregory A. Connell
Attorneys for Appellant WILLIAM
BOOKOUT dba OCEANO
NURSERY
8
CERTIFICATE OF WORD COUNT
(Cal. Rules of Court, rule 14(c)(1))
The text of this brief consists of ____ words as counted by the Corel WordPerfect
version X3 word-processing program used to generate the brief.
Dated: January 26, 2010 BELSHER & BECKER
By: ______________________
Gregory A. Connell
Attorneys for Plaintiff/Appellant
WILLIAM BOOKOUT dba
OCEANO NURSERY
9
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 REPLY 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. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 10 Executed and served on January __, 2010 at San Luis Obispo, California. _______________________________ ANGELA M. BREZDEN 11
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
Derek VanHoften, Esq. (SBN 226880)
David Sullivan, Esq. (SBN 142881)
P.O. Box 7444
San Francisco, CA 94120-7444
Tel: 415-904-5700
Fax: 415-904-2333
Attorney for Respondent STATE OF
CALIFORNIA DEPT. OF
TRANSPORTATION
Terence J. Cassidy
PORTER SCOTT
350 University Ave., Suite 200
Sacramento, CA 95825
Tel: 916-929-1481
Fax: 916-927-3706
Attorney for COUNTY OF SAN LUIS
OBISPO
California Attorney General
DEPARTMENT OF JUSTICE
P.O. Box 94425
Sacramento, CA 94244-2550
Supreme Court of California
303 Second Street
South Tower, Eighth Floor
San Francisco, California 94107
4 copies
12
Judge Estrada-Mullaney
San Luis Obispo Superior Court
1055 Monterey St.,
San Luis Obispo, CA 93408
Courtesy Copy
Judge Martin Tangeman
San Luis Obispo Superior Court
1055 Monterey St.,
San Luis Obispo, CA 93408
Courtesy Copy 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
