The Second Appellate Court ignores what was California Case law--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 The Second Appellate Court Does Not Feel that Exhibit # 1756 Is Causation of 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!  Why can this not be abated?       
 
The Oceano Community Service District-and-Union Pacific Rail Road State in Exhibit # 1756 to the Second Appellate Court--"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."

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