Second Appellate Court Hearing May 6, 2010 herd in front of
Justice--Steven Z. Perren---Kenneth R. Yegan---Arthar Gilbert---Paul Coffee
RE: Statute of Limitations and Prejudicial Error in regards to evidence withheld from discovery by the County of San Luis Obispo Molly Thurmond, Esq. (SBN 104973)Exhibit #579 (Appendix 15) Prejudicial Error or Not? Photo/Statement Documents withheld by County Of San Luis Obispo And Railroad at trial as allowed by Judge Tangeman, as Judge Tangeman Stated "All Right" County of San Luis Obispo Causation in permits and drainage requirements on private property. OCSD and Caltrans correcting 2002 drainage complaint problems in 2002/2003 as stated in exhibit #579 Complaint, Caltrans-McKinley Testomony P. 645 and (RA exhibit #1768) changing the Statute of Limitations! Date of Stabilization!
County photo documents withheld from discovery by County and Rail Road Exhibit # 579 showing flooding problem on east side of State Highway 1 after Caltrans raised State Highway 1 as stated in document provided with County 2002 Drainage Study Questionnaire! These photos where provided December 2, 2008 and are not apart of (Appendix 15) showing no Stabilization!
Why would a California Superior Court Judge allow partial evidence, exhibit # 579 to be withheld from discovery as stated in the Court Transcripts by Union Pacific Railroad and Judge Tangeman? “And for the purpose of the exhibits we don’t need the photographs.” The Court States: “All Right” Judge Tangeman after his August 5, 2010 Inverse Condemnation Decision States on P. 2117-2018 without acknowledging the photographs, regardoing other documents withheld from discovery. "I accept Mr. Belsher's argument these questionnaires where not available at that time. They weren't available until July 30th." "no fruther information was forthcoming and now the questionnaires are here I guarantee they are voluminous, I haven't even read through all of them."
Photo that RailRoad and County of San Luis Obispo-did provide with exhibit # 579 to Judge Tangeman and Court; stating drainage concern---"Pipeline in rail road culvert obstructing flow (Culvert Abuse) 13th Street & Highway 1 Mr. Bill Bookout" This drainage complaint was fixed by Caltrans and the Oceano Community Service District as stated in RA exhibit # 1768! (Appendix 15) shows other complaints.
Caltrans photos of drainage problems that Caltrans had created on East Side of State Highway 1. Taken after Oceano Community Drainage Study Questionnaire exhibit # 579 withheld from discovery. Why would Caltrans Raise State Highway 1 and not account for drainage or ponding?
Statute of Limitations with the Oceano Community Service District; drainage changes in December 2002 (RA Exhibit 1768)and prior as seen in photo exhibits below, with the Oceano Community Service Districts use of this drainage system for discharging 2500 gallons of Well water per minute into this undersized culvert blowing in and cementing debris and silt into this culvert year-around!
Flooding Photo in 2002 complained about to Caltrans and the Oceano Community Service District. fixed December 20, 2002---Caltrans and OCSD corrected this drainage problem as seen in APPELLANT’S REPLY BRIEF Exhibit # 1768 as stated by OCSD "I had to meet with Bill Bookout and a couple of guys from cal trans about the 6 inch line from well 8 that ends at the culvert by the railroad tracks. I had Dan saw off the 6 inch pipe and end it in front of the culvert so that there will be no danger of the pipe plugging debris at the entrance to the culvert." The Next OCSD log of this drainage system is February 9, 2004 before the first flooding of Oceano Nursery. OCSD States: "Then Joe had him cleaning out the drainage ditch by the railroad track down at 13th and Front Street"
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: "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
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)
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).
Guarded by two agents in black suits manning a metal detector, Justices Arthur Gilbert, Kenneth R. Yegan, Paul H. Coffee, and Steven Z. Perren heard arguments inside the San Luis Obispo County Board of Supervisors chamber on May 6 for five cases brought before the California 2nd District Court of Appeals. One of the cases came from Bill Bookout, the former owner of Oceano Nursery, who’s taking on Caltrans, SLO County, Union Pacific Railroad, the Pismo Oceano Vegetable Exchange, and the Oceano Community Services District over flooding that submerges a section of Highway 1 every year. The justices have until Aug. 5 to issue a judgment, but Bookout is already chalking up a win. “I’m very, very confident,” an ecstatic Bookout told New Times. His lawsuit was based mainly on his claim that Caltrans crews shovel debris into a drainage ditch, clogging the only outlet for water that funnels into the area. At the hearing, Bookout’s attorney, John Belsher, went up against a team of four defense attorneys representing the various state and local agencies. Belsher argued that the SLO County Superior Court and Judge Martin Tangeman incorrectly ruled against Bookout after ignoring testimony by the sole flood expert in the case, claiming a statute of limitations had passed. Bookout filed a lawsuit in 2006, claiming that flooding had been ongoing since 2004. Defense attorneys, however, countered that there had been flooding since 2002 and therefore Bookout had missed his chance to file the lawsuit. The justices were relatively quiet, aside from a few interjections about whether Judge Tangeman had the authority to ignore expert testimony and citing recent case law that found paved roads are in fact drainage channels. If the court finds in Bookout’s favor, he’ll get another chance at the lawsuit in SLO County Superior Court. So far, with no one to blame, the flooding will likely continue until a responsible party is identified. Supervisor Katcho Achadjian, whose district includes the flood-prone section of Highway 1, told New Times in a previous interview that he hopes the lawsuit will make someone responsible for the flooding and they will finally address the problem. If he loses again, Bookout said he’s prepared to go to the Supreme Court. “This has never been about money,” he said. “This has been about getting the problem fixed and getting my business back and going [again].”
The Questions now before the Second Appellate Court Judges regarding Statute of limitations, Date of Stabilization and Causation---Is did OCSD and Caltrans address the complaint in exhibit # 579 when they cut the OCSD pipe, per this complaint and installed concrete bags at the drainage inlet? Did Caltrans address drainage issues with the raising/overlay of Highway 1 in 2001 as stated in this 2002 Community Drainage & Flood Control Study Questionnaire? Are Caltrans,County and OCSD drainage actions legal in every County in California? When did the date of Stabilization occur with these three fix's by OCSD and Caltrans? Was exhibit # 579 withheld from discovery legal and is the withholding of evidence (Appendix 15) by the County of San Luis Obispo and Union Pacific Rail Road a Prejudicial Error? This Appelate Court Appeal should become California Case Law as every California Resident is affected by Caltrans Actions in regards to their use of this Storm Water Drainage System!
Are Caltrans actions of Shoveling and Grading Contaminated Storm Water Debris into this drainage channel since 2002 a cause of the sedimentation found in the Railroads drainage inlet pipe? viii) Constant shoveling and grading of debris into drainage Chanel by Caltrans. (RT Vol 4 Pgs 916-917, 920; Exhibits 1466-1467, 1513-1519)
Is the Use of the Drainage channel to discharge OCSD Well # 8 Drinking water and sedimetation in this drainage system a cause of the sedimetation found in the Railroads drainage inlet pipe? Is this Inverse Condemnation? When do Statute of Limitations Apply with the constant daily drainage changes?
Are the County of San Luis Obispo Permits and drainage requirements issued to Pismo Oceano Vegetable Exchange consistent with California Case Law as permitted by San Luis Obispo County? Exhibits # 1874 and 1875 as stated by County "Extend the pavement berm around the primary pond to keep out run off water from the parking lot" Causation by County in permits
At the Appellate Court hearing the Appellate Court Judges where presented with additional documents withheld from discovery by the County of San Luis Obispo (Appendix 15) of how the drainage worked in 2002 before drainage changes to the State Highway 13th and Paso Robles Streets and the drainage inlet by Caltrans and OCSD. (Appendix 15) shows Ex-OCSD Director Larry Baughman's problems that have since been corrected with the constant flooding of State Highway 1, Oceano Nursery 13th and Paso Robles Streets. "We Own a home at
Statute of Limitations--Date of Stabilization------P 653 Cross-Examination by Caltrans
The County of San Luis Obipo in their Appellate Court brief mention "McKinley" on P. 19 but does not mention Mr. McKinley's statement below showing Caltrans changing the drainage stabilization of HWY 1. 13th, and Paso Robles Streets--per exhibit 579 photos documents withheld at trial by Union Pacific Rail Road and the County of San Luis Obispo!
Caltrans States (P. 643)Answer: Yeah, I responded to a communication that our maintenance engineer received from Bill Bookout, that there was ponding, A ponding issue at the corners of 13th and Highway 1 and Paso Robles and Highway 1. And so it was in response to that communication." Question: Do you know approximately which side of the State highway this ponding occurred? Answer: "It was on the East Side". "
Page 645 “We reconstructed the pavement, so we put base and we put asphalt down.” “I believe we put down half a foot of A.C., I believe. Question:
(P 653 Cross-Examination by Caltrans-Exhibit photos 579) "And when you--It was your understanding that the reason this job -- You were asked to design this job was because the Plaintiff had complained about ponding on the East Side near his property, of State Route 1? Answer: Correct." Mr. Belsher "Objection; Leading" The Court OVERRULED. Question: (P.658) "Mr. McKinley, in that grinding crown removal project in 2003, do you recollect removing any portions of 13th Street or Paso Robles Street?" Answer: That was - Yeah, we went up to do our conforms, yes." Question: Do you knowabout how far up those streets you went, if you can recollect?" Answer: "From the plans, I want - it seem to be around 70 --70 feet, I believe, Seventy feet." Page 659 "We did adjust crowns on adjust crowns on 13th and Paso."
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California Case Law---Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848 Union Pacific Rail Road in their Appellate Briefs December 23, 2009 show the problem (Knowledge) on the east side of State Highway 1 in exhibit # 1773 corrected by Caltrans in 2002/2003 as stated (Complaint) in the photos documents that Union Pacific and the County of San Luis Obispo chose to withhold from discovery! The Oceano Community Service District corrected their (Complaint) in December 2002 as seen in ii) Modification of Well #8 discharge pipe by OCSD. (RA Exhibit 1768)------Union Pacific Rail Road States regarding Exhibit # 579 P. 13 "Appellant had the opportunity to explain his notations at trial" It is unfortunate that Union Pacific and the County of San Luis Obispo would withhold information from discovery and trial that went with this exhibit!
The Trial Court did Abuse its discretion by admitting Exhibit 579 withheld from discovery as the trial Court then chose to not allow in the photos and statements that went with Exhibit 579 as stated by Union Pacific and Judge Tangeman “And for the purpose of the exhibits we don’t need the photographs.” Judge Tangeman States: “All Right”
The County of San Luis Obispo Brief States: "The trial court found as a matter of fact that in 2002 plaintiff was clearly aware of the flooding damage to his property, and conditions at the intersections were unchanged in subsequent years." Is wrong as seen in the photo documents showing causation, withheld from discovery by the County of San Luis Obispo and Union Pacific Railroad as stated by Judge Tangeman and Union Pacific Rail Road. "And for the purpose of the exhibits we don’t need the photographs.” Judge Tangeman States: “All Right”
The County of San Luis Obispo in their Respondents Brief P. 5 does acknowledge that that Judge Tangeman erred in his admiting Exhibit # 579. "In any event, whatever error the trial court made regarding this solitary document was harmless in light of other admissible evidence demonstrating the Plaintiff became aware of the causes of flooding damage to his property no later than 2002." Judge Tangeman in his own words shows that this is not a Solitary Document as stated by Judge Tangeman and Union Pacific Rail Road. "And for the purpose of the exhibits we don’t need the photographs.” Judge Tangeman States: “All Right”
The County of San Luis Obispo (Terence J. Cassidy, SBN 99189--Thomas L. Riordan, SBN 104827 in their Respondents Brief Distort Statements/dates and Lie to the Second Appellate Court regarding Statements at Trial! Exhibit 1768-Dan Sutton--Fred Brebes--Phillip Davis McKinley.
Caltrans Respondent's Brief December 22, 2009 shows on P. 6 that the Oceano Community Service District fixed the drainage problem (Complaint) as stated in Exhibit # 1768. Caltrans then ignores testimony by Dan Sutton, Fred Brebes and puts in doctered testimony presented to the Appellate Court!
Caltrans on P. 12 of their Respondents Brief mention "Ongoing Public Project" in regards to Lee.----As seen in evidence withheld from Discovey of photos of Caltrans removing debris and then later Raising State Highway 1 shows Caltrans (Ongoing Public Project with no stabilization!) and shows that Caltrans was wrong as stated on P. 14 "The last improvements made to the drainage system where in the 1970's" P. 14 Caltrans does not mention their prior state Highway 1 drainage changes as seen in the photos in Exhibit 579 withheld from discovery and Trial as stated by Union Pacific Railroad "And for the purpose of the exhibits we don’t need the photographs.” Judge Tangeman States: “All Right”
Caltrans States on P. 19 of their Respondents Brief without talking about the Photos withheld from discovery of their maintence to the Oceano Storm Water Drainage channel State: "The evidence does not support a holding that the State was obligated to maintain the drainage channel or drainage facilities on private property.' As stated by Union Pacific Rail Road. "And for the purpose of the exhibits we don’t need the photographs.” Judge Tangeman States: “All Right”
Caltrans States in their closing "Finally, Appellant cannot plausibly argue that it was prejudiced by the "surprise" of Exhibit 579, in light of the fact that Appellant filled out the document and submitted it to the County in the first place."
Photos withheld from trial and discovery----As stated by Union Pacific Rail Road. "And for the purpose of the exhibits we don’t need the photographs.” Judge Tangeman States: “All Right”
San Luis Obispo New Times Article regarding Appeal May 13-May 20, 2010
Bookout gets his day ... again
BY COLIN RIGLEY
