Governor Jerry Brown

Associate Justice Carlos R. Moreno, Associate Justice Joyce L. Kennard, Associate Justice Kathryn Mickle Werdegar, Chief Justice Ronald M. George, Associate Justice Ming W. Chin, Associate Justice Marvin R. Baxter, Associate Justice Carol A. Corrigan, Anthony M. Kennedy, John Paul Stevens, Chief Justice John G. Roberts, Antonin G. Scalia, Clarence ThomasSamuel A. Alito, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor 
Please Review the true evidence below recieved by the Second Appellate Court!  The County of San Luis Obispo, Caltrans and the Oceano Community Service District should not be allowed to use this storm water drainage system for Well water and debris discharge!  This use of a storm water drainage system is not stable or static!  This does not constitute a permanent blockage and can be abated at any time! 

Their should not be a stutute of limitations for County permitted set in 1977 construction!  With government drainage change in the mid 80's to present as seen in the exhibits presented to Judge Martin J. Tangeman.

The Second Appellate Court of California has changed our California Case Law in Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. and Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783.   Court of Appeal Opinion: [PDF] Filed 6/28/10 Modified and certified for publication 7/28/10 (order attached)
 
 

Citation information available. Click to Shepardize® Bookout v. State of California ex rel. Dept. of Transpo..., 186 Cal. App. 4th 1478  (Copy w/ Cite)
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WILLIAM BOOKOUT, Plaintiff and Appellant, v. STATE OF CALIFORNIA ex rel. DEPARTMENT OF TRANSPORTATION et al., Defendants and Respondents.

No. B214906

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SIX

186 Cal. App. 4th 1478; 2010 Cal. App. LEXIS 1231


June 28, 2010, Filed

NOTICE: As modified July 28, 2010.

PRIOR-HISTORY:
Superior Court of San Luis Obispo County, No. CV060384, Martin J. Tangeman, Teresa Estrada-Mullaney, Judges.

COUNSEL: Belsher & Becker, Belsher, Becker & Roberts, John W. Belsher and Gregory A. Connell for Plaintiff and Appellant.

Ronald W. Beals, Chief Counsel, David Gossage, Deputy Chief Counsel, Lucille Baca, Assistant Chief Counsel, Wm. David Sullivan and Derek S. Van Hoften for Defendant and Respondent Department of Transportation.

Porter Scott, Terence J. Cassidy, Thomas L. Riordan and Michael William Pott for Defendant and Respondent County of San Luis Obispo.

Daner Law Firm and Adam M. Daner for Defendant and Respondent Oceano Community Services District.

Randolph Cregger & Chalfant and Thomas A. Cregger for Defendant and Respondent Union Pacific Railroad.

JUDGES: Gilbert, P. J., with Yegan and Perren, JJ., concurring.

OPINION BY: Gilbert



GILBERT, P. J.—Plaintiff alleges damages because several defendants caused flooding on his property when it rained. We conclude, among other things, that the flooding allegedly caused by the public entities here does not constitute control or posession of the plaintiff’s property. Therefore the three-year statute of llimitations applies.

We also conclude that the rules of causation are the same whether applied in inverse condemnation or tort.

Plaintiff brought this action against a number of public entities and a railroad claiming 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, 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.

FACTS

In 2000, William Bookout acquired a parcel of property in the Oceano community of San Luis Obispo County (County). He opened a nursery business on the property shortly thereafter.

The property lies at the intersection of Paso Robles and 13th Streets. Highway 1 cuts diagonally across the intersection, cutting through the southwest tip of Bookout's parcel. California’s Department of Transportation (Caltrans) owns Highway 1. The Union Pacific Railroad (Railroad) owns land across from Highway 1. The Railroad's predecessor in interest, the Southern Pacific Railroad Company, acquired the land by deed from a private party in 1894. A railroad line on a raised bed was constructed on the property.

When it rains, surface water from the surrounding area drains away from Bookout's parcel into a drainage channel on the Railroad's property. A 24-inch iron pipe conducts the water under the raised railbed. In 1939 or 1940, the Railroad extended the pipe to go under a second spur added by the Railroad.

The Pismo Oceano Vegetable Exchange (Exchange) first leased, then purchased, from the Railroad the property west of the raised railbed. 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.

Evidence in the record recieved by Judge Martin J. Tangeman and sent to the Second Appellate Court that they ignore in new California Case Law "Bookout v. State of California
Exhibit # 1756  Are three letters written by the Oceano Community Service District April 21, 1983 to San Luis Obispo County John Wallace.  Pismo Oceano Vegetable Exchange, Dennis Donovan.  Southern Pacific Land Company, John Sherman, explaining the OCSD Construction process of their well # 8 and their intended use of the storm water drainage channel.

Exhibit # 1730 April 29, 1983 Letter response from Southern Pacific Railroad to the Oceano Community Service District informing OCSD that the intended use of the storm water drainage channel is for “storm water runoff”

Exhibit # 1773 January 10, 1985 Department of Transportation Memorandum Document showing drainage concerns of Caltrans going back to 1974.  A $5,00.00 Contributions from the Oceano Community Service District for their new Fire Station Construction drainage!

Exhibit # 1757 March 13, 1985 The Oceano Community Service District signed contract agreement with Caltrans allowing for the OCSD new Construction/Fire Station drainage to enter State Highway 1 and go into the Caltrans drainage inlet leading into Railroad culvert!  March 14, 1985 Oceano Community Service District minute order regarding Caltrans agreement with OCSD # 05A239 signed by Gina Davis Deputy Secretary to the Board.  March 13, 1985 OCSD meeting minutes with John Wallace showing the $5,000.0 OCSD contribution to Caltrans drainage of State Highway 1 per signed Caltrans OCSD agreement!

Exhibit # 1875 March 27, 1985 County of San Luis Obispo letter requiring requiring Pismo Oceano Vegetable Exchange to raise the Outlet of the storm water retention pond on Southern Pacific Railroad property.  May 22, 1985 County of San Luis Obispo Building Permits for POVE Construction after 1977 Construction.  Included is a OCSD letter to the County Of San Luis Obispo December 13, 1984 and a letter from the Counties Chief Building inspector John P. Little dated December 26, 1984.

Exhibit # 1774 April 4, 1985 Department of Transportation (Caltrans) Fully Executed Copy of Cooperative Agreement between the State and the Oceano Community Service District, addressed to then General Manager Richard C. Hill.

Exhibit # 1758 September 11, 1985 Are OCSD meeting minutes showing drainage changes to the Oceano Communities storm water drainage system with the discharge of Well # 8 water onto County of San Luis Obispo property.  OCSD mentions prior recommendations from Montgomery Engineers’ before John Wallace became the OCSD District Engineer after leaving the County of San Luis Obispo.

Exhibit # 1759 February 27, 1986 Letter by John L. Wallace Consulting Civil Engineers to the County of San Luis Obispo Glenn Priddy for drainage coming off of State Highway 1 onto County of San Luis Obispo Airport “Pacific Place” property going into the Oceano Lagoon and then into the Pacific Ocean.  “Culvert that crosses the Railroad tracks on front Street near the railroad station”   OCSD new at this time that State Highway 1 Drainage was for storm drainage, rather then their Well # 8 water.

Exhibit # 1790 September 25, 1987 Letter By Gary Simms, from the Department of Transportation to the County of San Luis Obispo Glenn Priddy, showing that the OCSD and State drainage at this time could be fixed for only $43,295.00.  The County of San Luis Obispo portion of this would be $9,310.00 and the Railroad/POVE portion would be $15,070.00.  The Department of Transportation does not mention the Railroad or County  in their 1985 $5,000.00 agreements with the Oceano Community.

Exhibit # 1791 October 15, 1987 from OCSD to the Department of Transportation per their 1985 $5,000.00 signed agreement with Caltrans taking liability for storm water drainage!

Exhibit # 1792 November 18, 1987 District Agreement No. 05A239 A/1 from the Department of Transportation.  November 3, 1987 hand written document attached

Exhibit # 1793 May 18, 1988 letter to the Department of Transportation from OCSD, Plans for Subject drainage project from 1985 agreement between Caltrans and OCSD.

Exhibit # 1794 November 30, 1988 is Fred Brebs of the Department of Transportation maintenance log for cleaning cleaning

Exhibits # 1768 Starting in November 30, 2001 are the OCSD Phil Davis daily logs starting with the OCSD broken Well # 8 Pipe on County and Railroad property in 2001.  December 20, 2002 Log, problem as seen in exhibit # 579 withheld from discovery by the County of San Luis Obispo.  OCSD abated initial problem with OCSD pipe in culvert plugging debris at entrance to the culvert.  Next OCSD problem February 9, 2004 having OCSD employee clean out drainage ditch from debris in ditch.  May 19, 2004 OCSD Ditch Cleaning.  October 26, 2004 Major flood from debris inside Culvert, that OCSD fixed with sewer cleaner jet.  November 4, 2004 OCSD cleaned ditch.  December 6, 2004 OCSD pulled leaves and sticks out of the south end of the culvert.  December 9, 2004 OCSD finds RR culvert 1/3 plugged.  December 10, 2004 OCSD report for culvert cleaning by OCSD after meeting with County Road Department.  January 3, 2005  OCSD deals with flooded State Highway.  March 23, 2005 OCSD cleans culvert.  Tuesday December 18, 2007 OCSD meets with Attorney to talk about culvert before flooding later in the day.  Friday January 4, 2008 OCSD Well # 8 has another tree brake their blow-off line in the culvert.  Caltrans asks OCSD to pump the POVE pond.  January 7, 2008 OCSD repairs their Well # 8 blow off line discharging still into the Railroads culvert.

Exhibit # 1789 September 15, 1987 Judge Martin J. Tangeman would not allow into evidence.  This document shows a conflict between the County of San Luis Obispo, Caltrans and the Oceano Community Service District after the April 4, 1985 Department of Transportation signed agreement taking the OCSD storm water.

Exhibit # 579 that the County of San Luis Obispo withheld from discovery showing a problems with drainage observed with Caltrans in 2001 raising State Highway 1.  One photo provided out of three showing a Union Pacific Railroad Train Wreck and a PVC pipe inside the storm water drainage culvert!

Exhibit # 9 filed July 24, 2008 after trial showing complaint in exhibit # 579 withheld from Discovery by the County of San Luis Obispo involving Gregg Albright of Caltrans and San Luis Obispo County Supervisor Katch Achadjian!

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 railbed.
Associate Justice Carlos R. Moreno Associate Justice Carlos R. Moreno video viewed by Judge Martin J. Tangeman 1 

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 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.

In June 2002, Bookout returned a County questionnaire concerning flooding in Oceano. Bookout stated on the questionnaire that flooding, one foot deep, occurred once a year, and that the flooding damages his inventory.

On May 2, 2006, Bookout filed a complaint against Caltrans, the District, the Railroad, the County and the Exchange for inverse condemnation, nuisance, trespass and negligence. Bookout filed a first amended complaint in May 2007. He alleged the flooding ruined his nursery business.

Trial on the inverse condemnation cause of action was bifurcated from the other causes of action. Trial was before the court sitting without a jury. During trial, the Exchange entered into a good faith settlement with Bookout. Trial proceeded against the remaining defendants.

Bookout claimed he first discovered the flooding in February 2004. His expert engineer, Keith Crowe, testified that six conditions caused the flooding: (1) the pipe under the Railroad's tracks was too small for the conditions; (2) the pipe's capacity was compromised by the Exchange's poorly designed extension; (3) the District's well added silt and debris; (4) the County, Caltrans and the District allowed or caused upstream watershed conditions to worsen; (5) all remaining defendants contributed to a decrease in storage volume at the pipe's inlet; and (6) a lack of maintenance by all defendants.

After Bookout completed the presentation of his case, defendants moved for judgment of nonsuit pursuant to Code of Civil Procedure section 631.8. 1 The trial court granted the motion.

FOOTNOTES

1 All statutory references are to the Code of Civil Procedure unless stated otherwise.


The trial court determined that the applicable statute of limitations is three years, pursuant to section 338, subdivision (j). The court found Bookout's cause of action for inverse condemnation accrued some time prior to the middle of 2002. Thus the cause of action is barred by the statute of limitations. The court also found Bookout failed to carry his burden of proof that acts or omissions by the District, the County or Caltrans were the cause of the flooding. The court found that the Railroad may have been negligent by failing to enlarge the culvert or requiring that its tenant do so. But the court also found that the Railroad is not a public entity subject to an action for inverse condemnation.

After the trial court granted nonsuit on the inverse condemnation cause of action, defendants moved for judgment on the pleadings for the remaining causes of action. The motion was based on collateral estoppel. A different trial court granted the motion.

The trial court relied on the finding in the first phase that Bookout failed to prove causation as to the County, the District and Caltrans. Although the court in the first phase stated the Railroad may have been negligent, the court in the second phase determined that all remaining causes of action against the Railroad were barred by limitations.

Mr. Derek S. Van Hoften, representing Caltrans misleads the California Supreme Court in his Opposition Depublication request from the Second Appellate Court.  Mr. Van Hoften, ignores the Amicus Brief showing Baker v. Glendale-Pasadena Airport Authority (1985)   He States: "(1) the three-year statute of limitations applies to bar the action because the flooding allegedly caused by the public entities did not constitute control or possession of plaintiff's property,"  How is it that Caltrans can raise a State Highway and not have to address State drainage per new California Case Law "Bookout v. State of California"?

Caltrans Answer to Petition For Review September 15, 2010 ignoring Baker v. Glendale-Pasadena Airport Authority (1985)_...

Mr. Van Hoften, States:
"Second, Plaintiff asks whether public agencies should be allowed to use and maintain a public improvement for their surface water discharge and drainage systems in a manner which creates flooding of nearby neighboring private property.  (Pet. at 1., 7.)  However, the Court of Appeal did not find that the agencies in this case had used or maintained a public improvement: moreover, the plain holding of the Court of Appeal's decision was that the public agencies did not cause the flooding of Plaintiff's property." 

Mr. Van Hoften ignores the Testimony of Caltrans in front of Judge Martin J. Tangeman- P. 1506 of the Court Transcript of Caltrans Supervisor Fred Brebes.  Mr. Brebes States:  "Question: And did -- And did during this period of time, do you recall your maintenance crews working within the channel that leads from Highway 1 off of 13th Street?  Answer: Yes."  P. 1508 By Mr. Belsher:  So did your crews engage in this practice of using a loader to clean the channel that's depicted in that photograph, on more then one occasion?  Answer: Yeah -- Yes, I Would say Yes." Question: So was this part of the maintenance that you oversaw as Supervisor during those years,  '83 Through '88? Answer: Yes.  Question and did you continue that practice in the years until your retirement in 2002, to your knowledge?  Answer: I can't say.  Question: Well, we saw the photograph of 2000, for example. Answer:  UH-HUH Question: That's the one you're looking at.  You were a Superintendent at that time; Correct?  Answer: Yes"  P. 1509 By Mr. Belsher: Did you instruct your employees on maintenance activities with respect to the channel that's depicted in 1467?  Answer: YES.--------Question: So up to the years of 1996 when you became Superintendent, did you instruct workers under your supervision to clear the channel?  Answer: YES  Question: And that clearing went how far into the channel, to your recollection?  Answer: Well, in the case, it's probably about as far as that loader went, but that depends.  At certain times, I know that we have gone back to the culvert."  Page 1513 Answer: Um, I didn't know the Railroad --I Don't know the Railroad owns that property but.  Question: You didn't obtain permission from anybody at that point in time in terms of entering--" Answer: For 13th Street?  No."-------------Exhibits in exhibit # 579 withheld from discovery and allowed by Judge Martin J. Tangeman show Mr. Brebes being involved with Fountain Ave Flooding and photos of him raising State Highway 1 a foot in 2000!  These same photos above that San Luis Obispo Superior Court Judge Martin J. Tangeman would not allow into evidence---Show Caltrans abating a flood danger as seen in the photo of the Caltrans loader inside this storm water drainage channel!

 Caltrans Derek S. Van Hoften request for California Case law in Bookout v. State California July 13, 2010 pdf... 


Mr Derek S. Van Hoften ignores Caltrans Statement to Judge Martin J. Tangeman also seen in exhibit # 579 photos withheld from discovery by the County of San Luis Obispo!  Derek S. Van Hoften states to the Second Appellate Court.  "Here, the opinion demonstrates that relatively consistent and static flooding does not constitute "maintaining possession or control " over the property or any portion of it, so as to trigger application of the five-year limitation."   "While the Court properly applied the existing law in this case, there is no published opinion demonstrating that this rule of law applies in the context of relatively consistent and static flooding where there has been no actual entry or physical construction by the public entity."   

  

Mr Derek S. Van Hoften of Caltrans states:  "Second, the opinion explains another existing rule of law: where the judgment is against the party who has the burden of proof, it is almost impossible for him to prevail on appeal by arguing the evidence compels a judgment in his favor."  Inverse Condemnation should now be herd by a Jury instead of a Judge with these statements by Caltrans!

DISCUSSION

I

First Phase: Inverse Condemnation

(a)

Bookout contends the trial court applied the wrong statute of limitations.

The trial court applied
section 338, subdivision (j), which provides a three-year limitation on “[a]n action to recover for physical damage to private property under Section 19 of Article I of the California Constitution.” Section 19 of article I requires just compensation where private property is “taken or damaged” by a public entity. (Cal. Const., art. I, § 19, subd. (a).)

Bookout argues the trial court should have applied the five-year statute of limitations applicable to actions for adverse possession. (See
§§ 318, 319.)

If the property is damaged, the three-year statute of limitations applies; if the property is taken, the five-year limitation on actions to recover property applies. (3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 605, p. 786;
Patrick Media Group, Inc. v. California Coastal Com. (1992) 9 Cal.App.4th 592, 607 [11 Cal. Rptr. 2d 824].)

Thus, in
Lyles v. State of California (2007) 153 Cal.App.4th 281, 285 [62 Cal. Rptr. 3d 696], the court applied the three-year statute to allegations that the plaintiff's property was damaged by a flood caused when a state-owned culvert became blocked. In Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848, 855 [132 Cal. Rptr. 2d 444] (Lee), the court and parties agreed that the three-year statute applied to allegations that the plaintiff's property was damaged by the construction of a subway under a neighboring street.

In contrast, courts have applied the five-year statute where a public entity has physically entered and exercised dominion and control over some portion of a plaintiff's property. Thus, in Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345 [28 Cal. Rptr. 357], the city entered the plaintiff's property, widened a drainage ditch that ran the length of the property and constructed a berm. In Ocean Shore R.R. Co. v. City of Santa Cruz (1961) 198 Cal.App.2d 267, 272 [17 Cal.Rptr. 892], the city constructed a road over the plaintiff's property. In Garden Water Corp. v. Fambrough (1966) 245 Cal.App.2d 324, 328 [53 Cal. Rptr. 862], a public entity took possession of the plaintiff's water system, supplied water to some 90 residences, maintained the system and retained all income.

Here, unlike cases applying the five-year statute, no public entity physically entered Bookout's land or maintained possession and control over any portion of it. The trial court correctly concluded the three-year statute applies.

Bookout argues that even if the three-year statute applies, the trial court failed to use the “date of stabilization” to determine when the cause of action accrued.

In
Pierpont Inn, Inc. v. State of California (1969) 70 Cal.2d 282 [74 Cal. Rptr. 521, 449 P.2d 737], disapproved on another ground in Los Angeles County Metropolitan Transportation Authority v. Continental Development Corp. (1997) 16 Cal.4th 694 [66 Cal. Rptr. 2d 630, 941 P.2d 809], the state constructed a freeway over land owned by Pierpont. Pierpont 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 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.

The Second Appellate Court is mistaken on P. 8 of their July 28, 2010 published California Case Law 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 Second Appellate Court! This evidence is overwhelming as seen above and below! These drainage changes
are made after the Appellate Courts P. 8 100% Blame of the Pismo Oceano Vegetable Exchange! 

OCSD stated involving the County Of San Luis Obispo 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”

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 changes 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 Second Appellate Court Justices--Steven Z. Perren---Kenneth R. Yegan---Arthar Gilbert--ignore the photos that went with exhibit # 579 that Superior Court Judge Martin J. Tangeman did not feel were needed as evidence as he and Union Pacific Railroad stated as seen in Court Transcripts! "“And for the purpose of the exhibits we don’t need the photographs.” The Court States: “All Right”   In regards to these photos the County of San Luis Obispo asks on their Community Drainage and Flood Control Study Questionnaire---"Are there Any other comments regarding drainage and flooding that you would like to make?"  It  was weitten "Yes" showing these photos that Judge Martin J. Tangeman told the Railroad they did not have to include with exhibit # 579 is a prejudicial error shows Causation and no Date of Stabilization!   County Discovery Abuse per the Baughman Property from State Highway 1 PDF File...  
    

The County explained that it was unaware of the document at the time of discovery. It said that the questionnaire responses were summarized for inclusion in a drainage study, but they were not filed by name, address or location. The Railroad's counsel happened to find Bookout's response during Crowe's testimony. The County pointed out that Bookout must have been aware of the document because he submitted it to the County. The trial court found the failure to produce the document was not in bad faith, and refused to impose discovery sanctions.

County of San Luis Obispo actions before trial in regards to evidence they withhold from discovery as seen in these pdf files
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..


Bookout cites
Pate v. Channel Lumber Co. (1997) 51 Cal.App.4th 1447, 1455 [59 Cal. Rptr. 2d 919], for the proposition that the trial court has the power to exclude documents that a party has failed to produce in response to discovery requests. But in Pate, the trial court found that the party who failed to produce the requested documents had “ ‘played fast’ ” with the discovery rules. (Id. at p. 1453.) The trial court found no such bad faith here. Discovery sanctions are reviewed for an abuse of discretion. (Id. at p. 1454.) The trial court did not abuse its discretion.

In any event, even without the challenged document, the trial court's finding that Bookout knew about the flooding in 2002 is supported by overwhelming evidence. Sutton, Davis and Brebes testified Bookout complained to them about flooding in 2002. Bookout even admitted he took a picture of the drainage pipe in the aftermath of flooding in 2002. Bookout has failed to carry his burden of showing he would have obtained a more favorable result had the challenged document been excluded. (See Thomas v. Lusk (1994) 27 Cal.App.4th 1709, 1720 [34 Cal. Rptr. 2d 265].)

The County of San Luis Obipo show the above Appellate Court statements to be wrong, in their Appellate Court brief the County mention s "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 flooding--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 or Paso Robles street?”  Answer:  “That was – Yeah, we went up to do our conforms, yes.”  Question:   Do you know about how far up those streets you went, if you can recollect?”  Answer:  “From the plans, I want – it seems to be around 70 –70 feet, I
(b)

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. The 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 [41 Cal. Rptr. 3d 503].) To carry that burden the plaintiff must exclude the probability that other forces alone produced the injury. (Ibid.)

Where, as here, the judgment is against the party who has the burden of proof, it is almost impossible for him to prevail on appeal by arguing the evidence compels a judgment in his favor. That is because unless the trial court makes specific findings of fact in favor of the losing plaintiff, we presume the trial court found the plaintiff's evidence lacks sufficient weight and credibility to carry the burden of proof. (See Rodney F. v. Karen M. (1998) 61 Cal.App.4th 233, 241 [71 Cal. Rptr. 2d 399]; Kunzler v. Karde (1980) 109 Cal.App.3d 683, 688 [167 Cal. Rptr. 425] [judgment appealed from is presumed correct].) We have no power on appeal to judge the credibility of witnesses or to reweigh the evidence. (Kimble v. Board of Education (1987) 192 Cal.App.3d 1423, 1427 [238 Cal. Rptr. 160].)

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 Crowe. He believes the evidence against defendants was overwhelming.

Bookout claims the evidence is credible because it is uncontradicted. He cites
Joseph v. Drew (1950) 36 Cal.2d 575, 579 [225 P.2d 504], 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 has seen this Caltrans August 11, 1967 photo showing the Railroad house's have been removed and that the drainage channel is different then today.  The Second Appellate Court is mistaken in their statement   "The Exchange modified the drainage by constructing a junction box and pipeline that redirected the flow of water by 90 degrees."
This 8/5/1953 photo above recieved by Judge Martin J. Tangemen shows the Railroads property before the County and Cal Trans changed the Community's Storm Water Drainage Channel. This photo was provided by Cal Trans from a 1973 Drainage study going to the Pacific Ocean!  At this time buildings are seen where the storm water drainage channel is today!  A Community Sewer line was installed by the County in the mid 60's under what is now the communities storm water drainage channel!

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 [213 Cal. Rptr. 69].) The evidence presented here did not compel the trial court to find in favor of Bookout.

Bookout
argues the County may be liable even if it did not cause the flooding. He cites Marin v. City of San Rafael (1980) 111 Cal.App.3d 591 [168 Cal. Rptr. 750], for the proposition that a governmental entity may be liable if it approves a work of improvement. There the city constructed a drainage pipe that extended onto a lot owned by the plaintiffs' predecessor. The lot owner obtained a permit to extend the pipe beyond his lot. The city's engineer told him exactly what pipe to lay and how to do it. Later a home was constructed on the buried drainage pipe. The plaintiffs purchased the home without knowledge of the pipe's existence. A few months later the pipe burst during a heavy rain damaging the plaintiffs' property. The plaintiffs placed a concrete obstruction in the pipe to prevent further damage. The city obtained an injunction requiring the plaintiffs to remove the obstruction and restore the pipe to an operational condition. The trial court found the city was not liable.

The Court of Appeal reversed. The court stated the city was liable because (1) its engineer supervised and directed installation of the pipe, (2) the city used the pipe for drainage over many years, and (3) the city conceded the pipe was part of its storm drainage system. (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 the plaintiffs from interfering with its operation. None of those factors are present here.

(c)

Bookout contends the trial court improperly applied a reasonableness test to determine liability. He points out that except for damage caused by public flood control projects, the test in inverse condemnation actions is strict liability. (Citing Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 753–754 [122 Cal. Rptr. 2d 38].)

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. Defendants prevail.

II

Second Phase: Judgment on the Pleadings

(a)

A judgment on the pleadings is similar to a general demurrer. (See 6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 187, p. 625.) The factual allegations of the complaint are accepted as true. (Ibid.) The court, however, may grant judgment on the basis of extrinsic matters of which it may take judicial notice. (Ibid.) Bookout does not contest that the trial court may take judicial notice of the court's decision in the first phase of the trial.

The trial court in the first phase found Bookout failed to prove the County, the District or Caltrans caused harm to Bookout. Bookout argues the standard of causation for inverse condemnation is different from tort causation. He cites CACI No. 431 on multiple causes. 2 He claims, without citation to authority, that the standard of proof for causation stated in CACI No. 431 differs from causation for inverse condemnation. He fails to specify how it differs. In fact, if the defendant did not cause harm, there is no causation no matter what the cause of action. The trial court properly granted judgment on the pleadings to the County, the District and Caltrans.

FOOTNOTES

2 CACI No. 431 states: “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 some other person, condition, or event was also a substantial factor in causing [plaintiff's] harm.”
     The Second Appellate Court ignores Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. ”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 Appellate Court ignores Caltrans ownership of the first four feet of the storm water drainage inlet and the OCSD ownership and control of their Well # 8 pipe inside this storm water drainage channel per exhibit # 1278-1337 and 1338 that Judge Martin J. Tangeman talks about on P. 7 of his August 5, 2008 inverse condemnation decision!  The Appellate Court ignores exhibit # 1768 presented to the Second Appellate Court showing OCSD maintenance and drainage changes in December 2002 changeing the Statute of Limitations!  Photo Evidence/Exhibits presented to Judge Martin J. Tangeman 1278-1337-1338 pdf...   


(b)

The trial court in the second phase did not grant the Railroad judgment on the pleadings based on failure to prove causation. That is because the trial court in the first phase stated, “[A]t most, the Railroad negligently acted by omission by failing to enlarge a culvert or by failing to require (if that was possible) that its tenant do so.” Instead, the trial court in the second phase granted the Railroad judgment on the pleadings based on the statute of limitations.

Bookout argues the trial court in the second phase erred in basing its judgment on the three-year statute of limitations. (§ 338, subd. (b).) Instead, Bookout contends the flooding constitutes a continuous trespass or nuisance and a new cause of action arises each time it floods.

The cases distinguish between permanent and continuous nuisance or trespass. Where a nuisance is of such a character that it will presumably continue indefinitely, it is considered permanent and the limitations period runs from the time the nuisance is created. (Phillips v. City of Pasadena (1945) 27 Cal.2d 104, 107 [162 P.2d 625].) Where, however, a nuisance may be discontinued at any time, it is considered continuing in character. (Ibid.) A person injured by a continuous nuisance may bring successive actions, even though an action based on the original wrong may be barred. (Id. at pp. 107–108.) The same rules apply whether the wrong is characterized as nuisance or trespass. (Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1148 [281 Cal. Rptr. 827].)

In Phillips, the alleged nuisance was a locked gate. The court determined that the nuisance could be characterized as continuous because it could be removed at any time. (Phillips v. City of Pasadena, supra, 27 Cal.2d at p. 108.) Here the Railroad purchased its property in 1894. The raised railbed and culvert pipe have been in place at least since 1940 and most probably for over 100 years. Unlike a locked gate, there is nothing to suggest the pipe is temporary or might be modified at any time. Our Supreme Court has stated, “The cases finding the nuisance complained of to be unquestionably permanent in nature have involved solid structures, such as a building encroaching upon the plaintiff's land … .” (Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 869 [218 Cal. Rptr. 293, 705 P.2d 866].) The solid structure here is no less permanent because it is built on a defendant's land.

Bookout cites Mangini for the proposition that a nuisance is continuous if the damage is continuous. Bookout's reliance on Mangini is misplaced. There the plaintiffs alleged the defendant created a nuisance by polluting their land with hazardous waste. The defendant demurred on the ground that the complaint was filed beyond the three-year limitation. The trial court sustained the demurrer. In reversing, the Court of Appeal recognized the test for continuous nuisance is that the nuisance may be discontinued at any time. (Mangini v. Aerojet-General Corp., supra, 230 Cal.App.3d at p. 1143.) The court stated that the allegations of the complaint met “the crucial test of a continuing nuisance: that the offensive condition is abatable.” (Id. at p. 1147.) Because the defendant's alleged conduct ended years prior to the filing of the complaint, the court went on to say, “We note plaintiffs' land may be subject to a continuing nuisance even though defendant's offensive conduct ended years ago. That is because the ‘continuing’ nature of the nuisance refers to the continuing damage caused by the offensive condition, not to the acts causing the offensive condition to occur.” (Ibid.)

Unlike the instant case, Mangini did not involve a solid structure. It involved abatable pollution. The court did not mean to suggest a nuisance is continuous simply because the damage produced by the nuisance is continuous. A solid structure that encroaches on a plaintiff's land produces continuous damage. Yet, our Supreme Court described such a nuisance as “unquestionably permanent.” (Baker v. Burbank-Glendale-Pasadena Airport Authority, supra, 39 Cal.3d at p. 869.) 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.

Yegan, J., and Perren, J., concurred.

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