Inverse Condemnation In California

The Second Appellate Court in their July 28, 2010 published case law decision fail to talk about Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783.  As briefed and used by Superior Court Judge Martin J. Tangeman.  The Appellate Court States:     "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.)

But Bookout fails to point to anywhere in the record that the trial court applied the reasonableness test instead of strict liability. In any event, the court's ruling was based on the statute of limitations and failure to prove causation. The results are the same under the reasonableness test or strict liability. The defendants prevail."         

    Causation presented to Judge Martin J. Tangeman can be seen at the following websites!
www.governorarnoldschwarzenegger.net  
www.inversecondemnation.net          www.californiasupremecourt.info www.californiasupremecourts.com    www.secondappellatecourt.com www.oceanonursery.com                   www.supremecourtofcalifornia.com www.supremecourtcalifornia.com      
www.supremecourtjustices.net   www.heritageoaksbankquestions.com     www.unitedstatessupremecourt.net 
www.governormegwhitman.co   www.unitedstatessupremcourt.com 
www.governorbrown.net      www.lieutenantgovernorabelmaldonado.com
www.senatorsamblakeslee.com             www.governorjerrybrown.net 
www.governormegwhitmancalifornia.com   www.assemblymankatchoachadjian.com 

 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!  The Appellate Court ignores exhibit # 1768 presented to the Appellate Court showing OCSD maintenance and drainage changes in December 2002 changeing the Statute of Limitations! 

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 Appellate Court Justice--Steven Z. Perren---Kenneth R. Yegan---Arthar Gilbert---Paul Coffee 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 shows Causation and no Date of Stabilization!   County Discovery Abuse per the Baughman Property from State Highway 1 PDF File...  

    
The one Photo that Union Pacific RailRoad did Include in Exhibit # 579 shows that their is in Stabilization in this drainage system as stated on this photo exhibit " Pipeline in rail road culvert obstructin flow (Culvert Abuse) 13th Street & Highway 1 Mr. Bookout"  Exhibt # 1768 and 1756 backs up this statement showing no Date Of Stabilization with this OCSD drainage change since 1977!County Discovery Abuse per the Baughman Property from State Highway 1 PDF File...  
 
RE: Statute of Limitations and Prejudicial Error in regards to evidence withheld from discovery by the County of San Luis Obispo Molly Thurmond, Esq. (SBN 104973)Exhibit #579 (Appendix 15) Prejudicial Error or Not? Photo/Statement Documents withheld by County Of San Luis Obispo And Railroad at trial as allowed by Judge Tangeman, as Judge Tangeman Stated "All  Right" County of San Luis Obispo Causation in permits and drainage requirements on private property.  OCSD and Caltrans correcting 2002 drainage complaint problems in 2002/2003 as stated in exhibit #579 Complaint, Caltrans-McKinley Testomony P. 645 and (RA exhibit #1768) changing the Statute of Limitations!  Date of Stabilization! 

 
County photo documents withheld from discovery by County and Rail Road Exhibit # 579 showing flooding problem on east side of State Highway 1 after Caltrans raised State Highway 1 as stated in document provided with County 2002 Drainage Study Questionnaire!  These photos where provided  December 2, 2008 and are not part of (Appendix 15) showing no Date of StabilizationStabilization!

Why would a California Superior Court Judge allow partial evidence, exhibit # 579 to be withheld from discovery as stated in the Court Transcripts by Union Pacific Railroad and Judge Tangeman? “And for the purpose of the exhibits we don’t need the photographs.” The Court States: “All Right”   Judge Tangeman after his August 5, 2010 Inverse Condemnation Decision States on P. 2117-2018 without acknowledging the photographs, regardoing other documents withheld from discovery. "I accept Mr. Belsher's argument these questionnaires where not available at that time.  They weren't available until July 30th."  "no fruther information was forthcoming and now the questionnaires are here I guarantee they are voluminous, I haven't even read through all of them." 

The Second Appellate Court Ruling June 28, 2010 Allows Caltrans 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!  This ruling allows the United States government to discharge debris and well water into our United States drainage systems stating: "the nuisance or trespass alledged here is permanent."! 

California and United States Justices,
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 

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)
 
 
Now in the publised decision Bookout et al. v. State of California Dept. of Transportation, government (Caltrans, OCSD) is allowed to fill in storm water drainage channels and dredge debris into storm water drainage systems as seen and talked about by Justice--Steven Z. Perren---Kenneth R. Yegan---Arthar Gilbert in their publised July 28, 2010 Decision!  Notice Photos talked about by the Second Appellate Court in their Julu 28, 2010 Inverse Condemnation decision!!


The Second Appellate Court States in their July 28, 2010 published decision in regards to these photos above "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." 

This statement above by the Second Appellate Court affects every California resident and changes our California Case Law with the Second Appellate Courts published decision July 28, 2010 in Bookout et al. v. State of California Dept. of Transportation.  This decision now changes--Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. and Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783.   

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!
NPDES - California Fish And GameAs seen on YOUTUBE changing the date of stabilizationNPDES - California Fish And Game
The Appellate Court on Page 12 of their Appellate Decision ignores this "Continuous Nuisance" per "Mangini"

  NPDES - California Fish And Game
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.)
NPDES - California Fish And Game The Appellate Court Justices--Steven Z. Peren--Kenneth R. Yegan--Arthur GilbertNPDES - California Fish And Game
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 Detailed case information
    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?
           

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