The Second Appellate in their published decision July 28, 2010 allows inverse condemnation by Caltrans drainage changes since December 2000 to Raise and flood State Highway 1 13th and Paso Robles Streets in Oceano California and then Grade and shovel debris into the Oceano Communities Storm Water Drainage Channel putting blame on a produce company for 1977 construction! They Allow withholding of evidence stating "The Trial Court did not abuse its discreation." California Residents can decide this by viewing Caltrans action now on YOUTUBE and the photo documents that Superior Court Judge Martin J. Tangeman allowed Union Pacific Railroad to withhold at trial that went with Exhibit # 579!
Again, 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...
The Second Appellate Court July 28, 2010 published decision compleatly ignores Statute Of Limitations changes as seen in exhibit # 579 "Did you observe likely causes of the flooding, such as clogged culverts under roads, catch basins filled with dirt, no place for water to flow?" On Exhibit # 579 withheld from discovery by the County Of San Luis Obispo it was stated--- "Hwy 1 Not Adaquate drainage on Hwy 1 under the train track & Overlay from Caltrans in 2001 on Hwy 1"
The Second Appelate Court Justices--Steven Z. Perren, Kenneth R. Yegan and Arthur Gilbert State on P. 4 of their July 28, 2010 published decision "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." This now changes Inverse Condemnation Responsibility making the lower landowner responsible for drainage from other landowners property that they do not own!
The Second Appellate Court Justice--Steven Z. Perren---Kenneth R. Yegan---Arthar Gilbert---would not talk about these 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 "“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. This prejudicial error evidence shows Causation and no Date of Stabilization;per photos below! County Discovery Abuse per the Baughman Property from State Highway 1 PDF File...
The one Photo that Union Pacific RailRoad Included in Exhibit # 579 shows a Train Wreck and no Date of Stabilization in this drainage system as stated on this photo exhibit #579 " Pipeline in rail road culvert obstructin flow (Culvert Abuse) 13th Street & Highway 1 Mr. Bookout" The photos and video below show this OCSD pipline obstructing and damming this drainage system as seen in Exhibt #579, 1768 and 1756, which backs up this statement showing no Date Of Stabilization with this OCSD drainage changes since the County of San Luis Obispo permitted building construction of RR property by POVE in 1977, 1984 and 1985! The Second Appellate Court Justices--Steven Z. Perren, Kenneth R. Yegan and Arthur Gilbert do not mention this later RR/POVE construction nor any of the other documents that the County of San Luis Obispo withheld from discovery as seen in this PDF file!
County Discovery Abuse per the Baughman Property from State Highway 1 PDF File...
Video --
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 inverse condemnation or 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 Caltrans shoveling and grading Caltrans storm water debris into the Oceano Community's storm water drainage channel!
March 1, 2007 E-Mail regarding this Inverse Condemnation "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." 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
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 June 28, 2010 that this 2001-2002 Oceano Community Service District drainage change is not inverse condemnation or 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
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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 not inverse condemnation and 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 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!...
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 wheather, 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 wheather, 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 daming/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 entrence 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 Apellate 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 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 believe. Seventy feet.” Page 659 “We did adjust crowns on adjust crowns on 13th and Paso.”
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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. Pie 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 which is currently rented to Chuck Bachman. It floods every winter with up to a foot of water in the living room, causing Mr. Bachman to move to a Motel." "Water At The Corner Of 13th/Paso Robles/And Highway 1 Runs (Drains) Under The Railroad Tracks Across Railroad Ave And Collects In The Area Highlighted In Yellow On The Reverse. Something Has To Be Done To Get That Water To The Lagoon Or South To The Ag Creek At The East End Of Airport Runway. The End Of Fountain Ave Floods Every Winter. Larry Baughman"
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 and he advised me that the County can not work with individuals who have law suits pending against the County. They also can not provide anything in writing since anything in writing is potentially part of any lawsuit. I believe this to be standard operating policy for most public agencies.
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!...
County of San Luis Obispo and State of California Tort liability Drainage West of State Highway 1. If they fix their flooding of State Highway 1 as seen in documents that Molly Thurmond, ESQ. (SBN 104973 and The County of San Luis Obispo Dean Benedix withheld from Discovery! ---------The State Highway 1 fix is only $43,295.00!!!!------
Bill Tatum 1539 Fountain Ave. ---2001 flooding of Entire Street. Sporadic some flooding every year
Larry A Baughman--Owner of 1519 Fountain Ave. Statement house Floods every winter-- Ex-OCSD Director
Chuck Bachman--1519 and 1525 Fountain Ave. Property on Fountain Floods every year with 6- 18 inch's of water.
Greg S. McGree-- Fountain Ave knowledge
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-- Every time it Rains house up to 6-12'
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 neighborhood.
Keith pelemeyer-Pismo State Beach maintenance Supervisor
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 letter to Planning Department drainage in Oceano, Street improvements /Sidewalks
October 1, 1990 County Of San Luis Obispo letter to OCSD Water Run off and Drainage
October 17, 1990 Letter from John L. Wallace to OCSD Drainage in Oceano, Retention Basins, County Requirements
January 15, 1991 San Luis Obispo County letter to OCSD overall study of drainage patterns
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 katcho Achadjian Letter to OCSD
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. Ex OCSD Director with knowledge of drainage through County property.
"We Own a home at 1519 Fountain Ave which is currently rented to Chuck Bachman. It floods every winter with up to a foot of water in the living room, causing Mr. Bachman to move to a Motel."
"Water At The Corner Of 13th/Paso Robles/And Highway 1 Runs (Drains) Under The Railroad Tracks Across Railroad Ave And Collects In The Area Highlighted In Yellow On The Reverse. Something Has To Be Done To Get That Water To The Lagoon Or South To The Ag Creek At The East End Of Airport Runway. The End Of Fountain Ave Floods Every Winter. Larry Baughman"
Daniel Dena Neill--2640 Grell Ln. Safety Concerns on Paso Robles Street. Sidewalks and Alley ways paved with proper drainage.
Josue Astrero,Larry A Baughman--Knowledge of State Highway 1
Pat Clegg, Knowledge of State Highway 1
Sharon Collester, Knowledge of State Highway 1
Alan & Liane Barta, Knowledge of State Highway 1--2450 Paso Robles Street
Wando Cebulla, Knowledge of State Highway 1
Fred Cheda, 2231 Paso Robles Street--Knowledge of State Highway 1
Katherine B. Escobar 1627 Front Street, Knowledge of State Highway 1
Ben Harvey knowledge of Cal Trans changes to State Highway 1
Florence Welles 2431 Paso Robles Street.
Marylice Mankins
Eric Johnson Ally way knowledge
Herb West Knowledge of State Highway 1
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 Liability
Dan Striciculerda 1541 Wilmar Ave. "Flooding on Wilmar-between 14th &16th
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
Associate Justice Carlos R. Moreno video viewed by Judge Martin J. Tangeman 
Associate Justice Joyce L. Kennard 
Chief Justice Ronald M. George and Associate Justice Marvin R. Baxter 
Associate Justice Ming W. Chin The Oceano Community Service District photos of their use of the storm water drainage channel as presented to Judge Martin J. Tangeman! 
Associate Justice Carol A. Corrigan 
Associate Justice Marvin R. Baxter 
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