STATE OF CALIFORNIA
Filed 6/28/10 Modified and certified for publication 7/28/10 (order attached)
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
WILLIAM BOOKOUT,
Plaintiff and
Appellant,
v.
STATE OF CALIFORNIA
ex rel. DEPARTMENT OF TRANSPORTATION et al.,
Defendants and
Respondents.
2d Civil No.
B214906
(Super. Ct.
No. CV 060384)
(San
Luis Obispo County)
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.
FACTS
In
2000, William Bookout acquired a parcel of property in the Oceano community of San Luis
Obispo County (County). He began
operating a nursery business on the property shortly thereafter.
The
property lies at the intersection of Paso Robles and 13th Streets. Highway 1 cuts diagonally across the
intersection, cutting through the southwest tip of Bookout's parcel. The California
Department of Transportation (Caltrans) owns Highway 1. The Union Pacific Railroad (Railroad) owns
land across from Highway 1. The
Railroad's predecessor in interest, the Southern Pacific Railroad Company,
acquired the land by deed from a private party in 1894. A railroad line on a raised bed was
constructed on the property.
When
it rains, surface water from the surrounding area drains away from Bookout's
parcel and into a drainage channel on the Railroad's property. A 24-inch iron pipe conducts the water under
the raised rail bed. In 1939 or 1940,
the Railroad extended the pipe to go under a second spur added by the Railroad.
The
Pismo Oceano Vegetable Exchange (Exchange) first leased, then purchased, from
the Railroad the property west of the raised 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.
The
Oceano Community Services District (District) owns a water well. From time to time, the well discharges water
into the drainage channel that leads to the culvert under the rail bed. Exchange employee, Dan Sutton, testified Bookout
discussed the flooding with him shortly after the nursery opened. District employee, Phillip Davis, testified
Bookout complained about flooding every time it rained. Davis
recalled receiving a complaint from Bookout about flooding in December 2002. Davis's
daily log for that year makes reference to a meeting with Bookout on December 20, 2002. Bookout took a picture of the pipe going into
the drainage channel in the aftermath of a rain event in 2002. The picture included a District employee. Caltrans employee, Fred Brebes, testified
that before he retired in 2002 he met with Bookout about damage to his property
due to flooding.
In
June 2002, Bookout returned a County questionnaire concerning flooding in
Oceano. Bookout stated on the
questionnaire that flooding, one foot deep, occurred once a year, and that the
flooding damages his inventory.
On
May 2, 2006, Bookout filed a
complaint against Caltrans, the District, the Railroad, the County and the
Exchange for inverse condemnation,
nuisance, trespass and negligence. Bookout filed a first amended complaint in May
2007. He alleged the flooding ruined his
nursery business.
Trial
on the inverse condemnation cause of action was bifurcated from the other causes
of action. Trial was before the court
sitting without a jury. During trial,
the Exchange entered into a good faith settlement with Bookout. Trial proceeded against the remaining
defendants.
Bookout
claimed he first discovered the flooding in February 2004. His expert engineer, Keith Crowe, testified
that six conditions caused the flooding:
(1) the pipe under the Railroad's tracks was too small for the
conditions; (2) the pipe's capacity was compromised by the Exchange's
poorly designed extension; (3) the District's well added silt and debris;
(4) the County, Caltrans and the District allowed or caused upstream watershed
conditions to worsen; (5) all remaining defendants contributed to a decrease in
storage volume at the pipe's inlet; and (6) a lack of maintenance by all
defendants.
After
Bookout completed the presentation of his case, the defendants moved for
judgment of nonsuit pursuant to Code of Civil Procedure section 631.8.[1] The trial court granted the motion.
The
trial court determined that the applicable statute of limitations is three
years, pursuant to section 338, subdivision (j). The court found Bookout's cause of action for
inverse condemnation accrued some time prior to the middle of 2002. Thus the cause of action is barred by the statute
of limitations. The court also found
Bookout failed to carry his burden of proof that acts or omissions by the
District, the County or Caltrans were the cause of the flooding. The court found that the Railroad may have
been negligent by failing to enlarge the culvert or requiring that its tenant
do so. But the court also found that the
Railroad is not a public entity subject to an action for inverse condemnation.
After
the trial court granted nonsuit on the inverse condemnation cause of action, the
defendants moved for judgment on the pleadings for the remaining causes of
action. The motion was based on
collateral estoppel. A different trial
court granted the motion.
The
trial court relied on the finding in the first phase that Bookout failed to
prove causation as to the County, the District and Caltrans. Although the court in the first phase stated
the Railroad may have been negligent, the court in the second phase determined
that all remaining causes of action against the Railroad were barred by
limitations.
DISCUSSION
I
Inverse Condemnation
(a)
Bookout
contends the trial court applied the wrong statute of limitations.
The
trial court applied section 338, subdivision (j), which provides a three-year
limitation on "[a]n action to recover for physical damage to private
property under Section 19 of Article I of the California
Constitution." Section 19 of
article I requires just compensation where private property is "taken or
damaged" by a public entity. (Cal.
Const., art. I, § 19, subd. (a).)
Bookout
argues the trial court should have applied the five-year statute of limitations
applicable to actions for adverse possession.
(See §§ 318, 319.)
If
the property is damaged, the three-year statute of limitation applies; if the
property is taken, the five-year limitation on actions to recover property
applies. (3 Witkin,
Cal. Procedure (5th ed. 2008) § 605,
p. 786; Patrick Media Group, Inc. v.
607.)
Thus,
in Lyles v. State of California
(2007) 153 Cal.App.4th 281, 285, the court applied the three-year statute to
allegations that plaintiff's property was damaged by a flood caused when a
state-owned culvert became blocked. In
Transportation Authority (2003) 107 Cal.App.4th 848, 855 (
the three-year statute applied to allegations that plaintiff's property was
damaged by the construction of a subway under a neighboring street.
In
contrast, courts have applied the five-year statute where a public entity has
physically entered and exercised dominion and control over some portion of
plaintiff's property. Thus, in
Cal.App.2d 345, the city entered plaintiff's property, widened a drainage ditch
that ran the length of the property and constructed a berm. In Ocean
Shore R.R. Co. v. City of Santa Cruz (1961) 198 Cal.App.2d 267, 272, the
city constructed a road over plaintiff's property. In Garden
Water Corp. v. Fambrough (1966) 245 Cal.App.2d 324, 328, a public entity
took possession of plaintiff's water system, supplied water to some 90
residences, maintained the system and retained all income.
Here,
unlike cases applying the five-year statute, no public entity physically entered
Bookout's land or maintained possession and control over any portion of
it. The trial court correctly concluded
the three-year statute applies.
Bookout
argues that even if the three-year statute applies, the trial court failed to
use the "date of stabilization"
to determine when the cause of action accrued.
In
Pierpont
(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. Pierpont brought an
action for condemnation and damages. The
state demurred on the ground that Pierpont failed to file a claim under the
government claims within two years of the accrual of the cause of action. The court held the claim was timely. Pierpont reasonably awaited the completion of
the project to determine more accurately the exact extent to which its
remaining property would be damaged. (
there is continuous and repeated damage, incident to a public improvement, the
limitations period does not begin to run until the situation has stabilized. (See Lee,
supra, 107 Cal.App.4th at
p. 857.)
The
determination of when the statute of limitations begins to run is a question of
fact. (Lee, supra, 107
Cal.App.4th at p. 857.) Here the
trial court determined that the date of stabilization theory does not
apply. The court found that the last
improvements to the drainage system were constructed by the Exchange in the
late 1970's, and that the flooding problem was relatively consistent and static
for several years prior to the time Bookout purchased his property in 2000.
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
County explained that it was unaware of the document at the time of
discovery. It said that the
questionnaire responses were summarized for inclusion in a drainage study, but
they were not filed by name, address or location. The Railroad's counsel happened to find
Bookout's response during Crowe's testimony.
The County pointed out that Bookout must have been aware of the document
because he submitted it to the County.
The trial court found the failure to produce the document was not in bad
faith, and refused to impose discovery sanctions.
Bookout
cites Pate v. Channel Lumber Co.
(1977) 51 Cal.App.4th 1447, 1455, for the proposition that the trial court has
the power to exclude documents that a party has failed to produce in response
to discovery requests. But in
party who failed to produce the requested documents had "'played
fast'" with the discovery rules. (
here. Discovery sanctions are reviewed
for an abuse of discretion. (
In
any event, even without the challenged document, the trial court's finding that
Bookout knew about the flooding in 2002 is supported by overwhelming
evidence. Sutton, Davis and Brebes
testified Bookout complained to them about flooding in 2002. Bookout even admitted he took a picture of
the drainage pipe in the aftermath of flooding in 2002. Bookout has failed to carry his burden of
showing he would have obtained a more favorable result had the challenged
document been excluded. (See
1709, 1720.)
(b)
Even
if the trial court erred in applying the statute of limitations, the trial
court found that Bookout failed to carry his burden of proof as to causation in
his action against the District, the County and Caltrans. Plaintiff has the burden of proving a
substantial causal relationship between the defendant's act or omission and the
injury. (
(2006) 138 Cal.App.4th 474, 481.) To
carry that burden plaintiff must exclude the probability that other forces
alone produced the injury. (
Where,
as here, the judgment is against the party who has the burden of proof, it is
almost impossible for him to prevail on appeal by arguing the evidence compels
a judgment in his favor. That is because
unless the trial court makes specific findings of fact in favor of the losing
plaintiff, we presume the trial court found plaintiff's evidence lacks
sufficient weight and credibility to carry the burden of proof. (See Rodney
F. v. Karen M. (1998) 61 Cal.App.4th 233, 241; Kunzler v. Karde (1980) 109 Cal.App.3d 683, 688 [judgment appealed
from is presumed correct].) We have no
power on appeal to judge the credibility of witnesses or to reweigh the
evidence. (Kimble v. Board of Education (1987) 192 Cal.App.3d 1423, 1427.)
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.
Bookout
argues the County may be liable even if it did not cause the flooding. He cites Marin
v. City of San Rafael (1980) 111 Cal.App.3d 591, for the proposition that a
governmental entity may be liable if it approves a work of improvement. There the city constructed a drainage pipe
that extended onto a lot owned by plaintiffs' predecessor. The lot owner obtained a permit to extend the
pipe beyond his lot. The city's engineer
told him exactly what pipe to lay and how to do it. Later a home was constructed on the buried
drainage pipe. Plaintiffs purchased the
home without knowledge of the pipe's existence.
A few months later the pipe burst during a heavy rain damaging plaintiffs'
property. Plaintiffs placed a concrete
obstruction in the pipe to prevent further damage. The city obtained an injunction requiring
plaintiffs to remove the obstruction and restore the pipe to an operational
condition. The trial court found the
city was not liable.
The
Court of Appeal reversed. The court
stated the city was liable because (1) its engineer supervised and directed
installation of the pipe, (2) the city used the pipe for drainage over many
years, and (3) the city conceded the pipe was part of its storm drainage system. (Marin
v. City of San Rafael, supra, 111
Cal.App.3d at p. 596.) In other
words, the city was liable because it directed the installation of, used, and
owned the pipe. It even obtained an
injunction to prevent plaintiffs from interfering with its operation. None of those factors are present here.
(c)
Bookout
contends the trial court improperly applied a reasonableness test to determine
liability. He points out that except for
damage caused by public flood control projects, the test in inverse condemnation
actions is strict liability. (Citing
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.
II
(a)
A
judgment on the pleadings is similar to a general demurrer. (See 6 Witkin, Cal. Procedure (5th ed. 2008)
Proceedings Without Trial, § 187, p. 625.)
The factual allegations of the complaint are accepted as true. (Ibid.) The court, however, may grant judgment on the
basis of extrinsic matters of which it may take judicial notice. (Ibid.) Bookout does not contest that the trial court
may take judicial notice of the court's decision in the first phase of the
trial.
The
trial court in the first phase found Bookout failed to prove the County, the
District or Caltrans caused harm to Bookout.
Bookout argues the standard of causation for inverse condemnation is
different from tort causation. He cites
CACI No. 431 on multiple causes.[2] He claims, without citation to
authority, that the standard of proof for causation stated in CACI No. 431
differs from causation for inverse condemnation. He fails to specify how it
differs. In fact, if the defendant did
not cause harm, there is no causation no matter what the cause of action. The trial court properly granted judgment on
the pleadings to the County, the District and Caltrans.
(b)
The trial court in the second phase
did not grant the Railroad judgment on the pleadings based on failure to prove
causation. That is because the trial
court in the first phase stated, "[A]t most, the Railroad negligently
acted by omission by failing to enlarge a culvert or by failing to require (if
that was possible) that its tenant do so."
Instead, the trial court in the second phase granted the Railroad
judgment on the pleadings based on the statute of limitations.
Bookout argues the trial court in the
second phase erred in basing its judgment on the three-year statute of
limitations. (§ 338, subd.
(b).) Instead, Bookout contends the
flooding constitutes a continuous trespass or nuisance and a new cause of
action arises each time it floods.
The cases distinguish between
permanent and continuous nuisance or trespass.
Where a nuisance is of such a character that it will presumably continue
indefinitely, it is considered permanent and the limitations period runs from
the time the nuisance is created. (
Cal.2d 104, 107.) Where, however, a
nuisance may be discontinued at any time, it is considered continuing in
character. (Ibid.) A person injured by a
continuous nuisance may bring successive actions, even though an action based
on the original wrong may be barred. (
characterized as nuisance or trespass. (
230 Cal.App.3d 1125, 1148.)
In Phillips, the alleged nuisance was a locked gate. The court determined that the nuisance could
be characterized as continuous because it could be removed at any time. (Phillips
v. City of Pasadena, supra, 27
Cal.2d at p. 108.) Here the
Railroad purchased its property in 1894.
The raised rail bed and culvert pipe have been in place at least since
1940 and most probably for over 100 years.
Unlike a locked gate, there is nothing to suggest the pipe is temporary
or might be modified at any time. Our
Supreme Court has stated, "The cases finding the nuisance complained of to
be unquestionably permanent in nature have involved solid structures, such as a
building encroaching upon the plaintiff's
land . . . ." (
Authority (1985) 39 Cal.3d 862, 869.)
The solid structure here is no less permanent because it is built on a
defendant's land.
Bookout cites Mangini for the proposition that a nuisance is continuous if the
damage is continuous. Bookout's reliance
on Mangini is misplaced. There plaintiffs alleged the defendant
created a nuisance by polluting their land with hazardous waste. Defendant demurred on the ground that the
complaint was filed beyond the three-year limitation. The trial court sustained the demurrer. In reversing, the Court of Appeal recognized
the test for continuous nuisance is that the nuisance may be discontinued at
any time. (Mangini v. Aerojet-General Corp., supra, 230 Cal.App.3d at p. 1143.)
The court stated that the allegations of the complaint meet "the
crucial test of a continuing nuisance:
that the offensive condition is abatable." (Id.
at p. 1147.) Because the
defendant's alleged conduct ended years prior to the filing of the complaint,
the court went on to say, "We note plaintiffs' land may be subject to a
continuing nuisance even though defendant's offensive conduct ended years
ago. That is because the 'continuing'
nature of the nuisance refers to the continuing damage caused by the offensive
condition, not to the acts causing the offensive condition to occur." (Ibid.)
Unlike the instant case,
structure. It involved abatable
pollution. The court did not mean to
suggest a nuisance is continuous simply because the damage produced by the
nuisance is continuous. A solid
structure that encroaches on a plaintiff's land produces continuous damage. Yet, our Supreme Court described such a
nuisance as "unquestionably permanent." (Baker
v. Burbank-Glendale-Pasadena Airport Authority, supra, 39 Cal.3d at p. 869.)
All Mangini was trying to say
is that a nuisance can still be continuous even after the offensive conduct has
ended.
The nuisance or trespass alleged here
is permanent. The three-year statute of
limitations bars Bookout's causes of action for nuisance and trespass.
The judgment is affirmed. Costs are awarded to respondents.
GILBERT,
P.J.
We
concur:
YEGAN, J.
PERREN, J.
Martin
J. Tangeman, Teresa Estrada-Mullaney, Judges
Superior
Court County
of San Luis Obispo
______________________________
Belsher &
Becker; Belsher, Becker & Roberts, John W. Belsher, Gregory A. Connell for
Plaintiff and Appellant.
Ronald W. Beals,
Chief Counsel, David Gossage, Deputy Chief Counsel, Lucille Baca, Assistant
Chief Counsel, Wm. David Sullivan, Derek S. Van Hoften for Defendant and
Respondent State of California Department of Transportation.
Porter Scott,
Terence J. Cassidy, Thomas L. Riordan, Michael William Pott for Defendant and
Respondent County of San Luis Obispo.
Daner Law Firm,
Adam M. Daner for Defendant and Respondent Oceano Community Services District.
Randolph Cregger
& Chalfant LLP, Thomas A. Cregger for Defendant and Respondent Union
Pacific Railroad.
>
Filed 7/28/10 Publication & Modification order
CERTIFIED FOR PUBLICATION
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
WILLIAM BOOKOUT,
Plaintiff and
Appellant,
v.
STATE OF CALIFORNIA
ex rel. DEPARTMENT OF TRANSPORTATION et al.,
Defendants and
Respondents.
2d Civil No.
B214906
(Super. Ct.
No. CV 060384)
(San
Luis Obispo County)
ORDER MODIFYING
OPINION
AND CERTIFYING
OPINION
FOR PUBLICATION
[NO CHANGE IN
JUDGMENT]
THE COURT:
It is ordered that the
opinion filed herein on June 28, 2010, be modified as follows:
On page 1, the following two
paragraphs are added to the beginning of the opinion:
Plaintiff alleges damages because several defendants
caused flooding on his property when it rained.
We conclude, among other things, that the flooding allegedly caused by
the public entities here does not constitute control or possession of
plaintiff's property. Therefore the
three-year statute of limitations applies.
We also conclude that the rules of causation are the same
whether applied in inverse condemnation or tort.
2. On page 2, the second sentence in the first
paragraph is changed to read: "He
opened a nursery business on the property shortly thereafter."
3. On page 2, in the first sentence of the third
paragraph, delete the word "and" so that the sentence reads: "When it rains, surface water
from the surrounding area drains away from Bookout's parcel into a drainage
channel on the Railroad's property."
There is no change in the
judgment.
The opinion in the
above-entitled matter filed on June 28, 2010, was not certified for
publication in the Official Reports. For
good cause, it now appears that the opinion should be published in the Official
Reports and it is so ordered.
Publication courtesy of California
pro bono legal advice.
Analysis and review provided by La Mesa Property line Lawyers.
San Diego Case Information
provided by www.fearnotlaw.com
[1]
All statutory
references are to the Code of Civil Procedure unless stated otherwise.
[2] CACI No. 431 states: "A person's negligence may combine with
another factor to cause harm. If you
find that [defendant's] negligence was a substantial factor in causing
[plaintiff's] harm, then [defendant] is responsible for the harm. [Defendant] cannot avoid responsibility just
because some other person, condition, or event was also a substantial factor in
causing [plaintiff's] harm."
