Weidl v. Gil
Filed 11/4/13 Weidl v. Gil CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
LORENZ WEIDL,
Plaintiff and
Appellant,
v.
JOSE GIL et al.,
Defendants and
Respondents.
2d Civil No.
B244284
(Super. Ct. No.
1373629)
(Santa
Barbara County)
Plaintiff Lorenz Weidl
appeals a summary judgment in favor of
defendants Jose Gil and Sanjuana Gil on the grounds that Weidl's action was
barred by the running of the statute of
limitations. In his first amended
complaint, Weidl sought damages and injunctive relief for causes of action for
trespass, nuisance, negligence and unjust enrichment. We conclude, among other things, that the
trial court did not err because: 1)
Weidl's causes of action were subject to a three-year statute of limitations,
2) his action was untimely, and 3) he did not meet his burden to produce
evidence to show that he fell within the continuing nuisance doctrine. We affirm.
FACTS
Weidl owns real property
on Sunset Ridge in Goleta. The Gils own an adjacent parcel of real
estate. A 20-foot-wide easement runs
across the Gils' property that Weidl "uses as his means of ingress and
egress to his property." The Gils
constructed "a concrete block wall," which runs "along the
length of the easement."
In June 2005, Weidl wrote
to Mr. Gil about the wall and "a fence" the Gils constructed between
the "adjoining properties." Weidl said, "[Y]our wall is lying well
within the easement and is going to cause me to do additional reinforcing on
the downhill side of the road." On
July 1, 2005, he wrote to Gil and said, "[M]ajor portions of the block
wall are in my easement and at one place blocks off the easement entirely. Your wall also raises drainage issues." He added, "[Y]ou have a fence at the rear
of your property that actually is on my property (at least in places)." In 2005, Weidl and the Gils retained lawyers. They were unable to "reach[] a
resolution."
In November 2005, Weidl "discovered
damage to the easement as a result of water drainage" from the wall. In June 2006, Weidl discovered damage to his
property "as a result of water drainage from the Gil property."
On January 20, 2011,
Weidl filed a lawsuit against the Gils. In his first amended complaint, he alleged the
wall and fence interfered with his property interest in the easement. He claimed the Gils' "block wall and
chain link fence . . . negatively impacted" his use and
enjoyment of his property, and that they were "negligently designed,
located and constructed" within "the last five years." He sought damages and injunctive relief for
four causes of action:
enrichment.
The Gils filed a motion
for summary judgment claiming that all causes of action were barred by the
running of a three-year statute of limitations. In opposition, Weidl said, "Plaintiff
continues to accrue damages to his easement every time it rains because
Defendants' wall is improperly designed and constructed." He attached his declaration and an
engineering report.
In granting summary
judgment, the trial court said Weidl "does not dispute the fact that this
action is brought more than three years after he became aware of the alleged
encroachments and issues regarding drainage from the hill on which the wall
sits. . . . Plaintiff has
failed to carry his burden of demonstrating a triable issue of fact supporting
the continuing nuisance exception to the statute of limitations."
DISCUSSION
The
Statute of Limitations
Weidl contends the trial
court erred because the three-year statute of limitations did not expire
because the Gils maintained a continuing nuisance.
The Gils contend that in
2005 Weidl knew they built the concrete wall, but Weidl did not file his action
until 2011. They claim their fixed
structures were not a continuing nuisance and his action is barred by a three-year
statute of limitations. We agree.
"[T]he party moving
for summary judgment bears an initial burden of production to make a prima
facie showing of the nonexistence of any triable issue of material fact." (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "[I]f he carries his burden of
production, he causes a shift, and the opposing party is then subjected to a
burden of production of his own to make a prima facie showing of the existence
of a triable issue of material fact." (Ibid.)
"There is a triable issue of
material fact if, and only if, the evidence would allow a reasonable trier of
fact to find the underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof." (Ibid.)
The defendant who seeks
summary judgment bears the burden of showing that the statute of limitations
period "had expired when [plaintiff] filed his action." (Schmidlin
v. City of Palo Alto (2007) 157 Cal.App.4th 728, 788.) If that burden is met, the plaintiff bears
the burden to prove an exception to the statute of limitations. (Ibid.)
Our review is de novo. (Carnes
v. Superior Court (2005) 126 Cal.App.4th 688, 694.) "'[I]n practical effect, we assume the
role of a trial court and apply the same rules and standards that govern a
trial court's determination of a motion for summary judgment.'" (Ibid.)
Here there is a three-year
statute of limitations for Weidl's causes of action for trespass, nuisance,
unjust enrichment and negligence. (Code
Civ.Proc., § 338, subd. (b) [three-year limitations period for trespass or
injury to real property]; Starrh & Starrh
Cotton Growers v. Aera Energy, LLC (2007) 153 Cal.App.4th 583, 592;
Transportation Co. (1996) 44
Cal.App.4th 1160, 1216 [three years for nuisance]; Federal Deposit Ins. Corp. v. Dintino (2008) 167 Cal.App.4th 333,
348 [three years for unjust enrichment].)
On June 4, 2005, Weidl
wrote to Mr. Gil complaining about the wall and "drainage issues." In discovery, Weidl admitted that he first
discovered "damage" caused from "water drainage from [the Gils']
property" in June 2006. A cause of
action generally accrues when the plaintiff suffers damage. (Lyles
v. State of California (2007) 153 Cal.App.4th 281, 286.) But Weidl did not file this action until
January 20, 2011. That was beyond the
three-year limitations period. During
his deposition, Weidl was asked why he waited so long to file his action. In response, he said, among other things, "I
had just gotten married. We were moving.
There was just a million things on my
plate . . . ."
Weidl contends his
action was not barred because he sought relief for a continuing nuisance. The Gils claim his action is barred because
it involves a challenge to a fixed structure and it consequently falls within
the permanent nuisance category. We
agree.
There are differences
regarding the running of the statute of limitations in actions to abate
permanent nuisances and continuing nuisances. "The cases finding the nuisance
complained of to be unquestionably permanent in nature have involved
encroaching upon the plaintiff's land . . . , a steam railroad
operating over plaintiff's land . . . , or regrade of a
street . . . ." (Baker
v. Burbank-Glendale-Pasadena Airport Authority
(1985) 39 Cal.3d 862, 869, italics added, citations & fns. omitted.) "In such cases, plaintiffs ordinarily
are required to bring one action for all past, present and future damage within
three years after the permanent nuisance is erected." (Ibid.)
Where a landowner has no knowledge of
damage caused by such a nuisance, some courts have indicated that the statute
of limitations may begin to run when he or she discovers the damage. (Lyles
v. State of California, supra,
153 Cal.App.4th at p. 286; Mangini
v. Aerojet-General Corp. (1996) 12 Cal.4th 1087, 1096.)
By contrast, "[i]f
a nuisance is a use which may be
discontinued at any time, it is
considered continuing in character and persons harmed by it may bring
successive actions for damages until the nuisance is abated." (Baker
v. Burbank-Glendale-Pasadena Airport
Authority, supra, 39 Cal.3d at p.
869, italics added.) Continuing
nuisances typically involve an "injury that is attributable to
the discontinuance of which would terminate the injury." (Beck
Development Co. v.
italics added.)
In his complaint, Weidl
alleged that the damage to his property was caused by solid structures‑‑a
"block wall and chain link fence," which were "negligently
designed, located and constructed." He describes this structure to be a "
500-600 [foot] concrete block wall along a roadway easement leading to" his
property. Under Baker, this is a solid structure. This block wall was erected in 2002. "[T]he courts have held that the
encroachment of . . . walls . . . are permanent in nature."
(Field-Escandon
v. DeMann (1988) 204 Cal.App.3d 228, 233, citations omitted.) Consequently, damages caused by such fixed
structures fall within the permanent nuisance category. (Id.
at pp. 233-234.)
Tracy
v. Ferrera
Weidl contends the trial
court erred in light of Tracy v. Ferrera
(1956) 144 Cal.App.2d 827. We disagree. In Tracy,
the court reversed a judgment following the sustaining of a demurrer to the
plaintiffs' complaint. The plaintiffs
alleged adjoining landowners created a nuisance by maintaining pipes that
caused noxious orders. In deciding the
nature of the nuisance, the court distinguished between structural defects and
the acts and "uses" plaintiffs alleged to have occurred. It said, "[C]omplaint is made, not of
their location, but of the use to which
they are put." (Id.
at p. 828, italics added.) There
was no statute of limitations problem because plaintiffs alleged "
occurred within three years." (
But unlike
structural design defect for structures erected outside of the statute of
limitations period. Weidl does not
allege the Gils constructed the wall within the past three years. His pleading alleges the wall was built "within
the preceding five
said, "I became aware of the potential encroachment of the Defendants'
wall in or around March, 2005 . . . ."
Weidl's
Showing in Opposition to Summary Judgment
Weidl claims he made a
sufficient showing to oppose summary judgment. He argues he was seeking relief from a
continuing nuisance. But, "[a]
plaintiff cannot simply allege that a nuisance is continuing in order to avoid
the bar of the statute of limitations . . . ." (Beck
Development Co. v. Southern Pacific
Transportation Co., supra, 44
Cal.App.4th at p. 1217.) He or she "must
present evidence that under the circumstances the nuisance may properly be
considered continuing rather than permanent." (Ibid.)
In his declaration opposing
summary judgment, Weidl said, "Within three years prior to filing suit and
continuing thereafter, I have regularly and repeatedly expended significant
sums of money for soil, road base, gravel and labor to repair the damage to my
property and road caused by excessive
rainwater run off which is concentrated
by Defendant's wall and directed over my road and property, causing damage."
(Italics added.) He believed the wall was the source of the
damage, not the defendants' "use which may be discontinued at any time."
(Baker
v. Burbank-Glendale-Pasadena Airport
Authority, supra, 39 Cal.3d at p. 869.) Where a nuisance has "characteristics
which [are] overwhelmingly permanent," the plaintiff may not "elect
to treat the encroachment as a continuing rather than a permanent nuisance."
(Spar
v. Pacific Bell (1991) 235 Cal.App.3d 1480, 1488.)
Citing
Transportation Authority (2003) 107 Cal.App.4th 848, Weidl claims the
statute of limitations did not begin to run. He argues damage to his property had "not
yet stabilized," and consequently his cause of action had "not yet
accrued." But Lee is distinguishable. There
the court reversed a judgment of dismissal after the sustaining of a demurrer
to the plaintiff's complaint. It
concluded the plaintiff pled sufficient facts to overcome a demurrer based on
the running of the statute of limitations for her nuisance damage cause of
action. The plaintiff alleged she
suffered damage due to: 1) Metro Rail
construction, and 2) "ongoing construction" that will "continue
to damage [her] businesses." (
stabilized because of the continuing construction activities.
By contrast, Weidl did
not show that the Gils conducted ongoing construction. In his separate statement of facts, he said
the wall was not complete, but he admitted the Gils conducted "no
significant work towards completion since
2005." (Italics added.) Unlike the defendants in Lee and Tracy, the Gils
did not initiate activities within the three-year limitations period that
caused a nuisance. Moreover, Weidl's
claim that the wall is not complete misses the point. The issue is whether the wall was intended to
be a permanent structure when it was built, regardless of its current condition.
(Castelletto
v. Bendon (1961) 193 Cal.App.2d 64, 67.)
Weidl has not shown that a large, decade-old concrete wall spanning the
length of two football fields was built to only be a moveable or temporary
structure.
Weidl claims he will be
subject to continuous damage when it rains because the wall directs water to
his property. He argues this nuisance consequently
falls within the continuing category. We
rejected a similar argument in Bookout v.
State of California ex rel. Dept.
of Transportation (2010) 186
Cal.App.4th 1478, 1490. There appellant
claimed a pipeline, which redirected water and flooded his property when it
rained, was a continuing nuisance. He
argued he was not subject to the three-year statute of limitations. In rejecting this claim, we recognized that
although damage could continually originate from the solid structure, the type
of nuisance remained the same‑‑permanent. We said, "A solid structure that
encroaches on a plaintiff's land produces continuous damage. Yet, our Supreme Court described such a
nuisance as 'unquestionably permanent.'" (Ibid.)
The Gils also claim
Weidl did not meet his burden to present evidence that the nuisance "is
abatable by reasonable means and at a reasonable cost." We agree. Plaintiffs who allege continuing nuisances "must
prove 'that whatever they claim constitutes the nuisance is actually and
practically abatable by reasonable measures and without unreasonable expense.'"
(Mangini
v. Aerojet-General Corp., supra, 12
Cal.4th at p. 1098.) They must
produce evidence on "hardship and cost" so the trier of fact may
determine if the nuisance is abatable. (
Weidl presented a report
by Mitch Perkins, an engineer. The Gils
claim it does not support a triable issue of fact on abatement because it is a
hearsay document without adequate foundation for its admissibility. We agree.
The report did not meet
the minimal standards for evidence opposing summary judgment. The report was not a sworn document, nor was it
signed. It was simply a two-page letter
to Weidl from Perkins, with no indication that Perkins ever intended to testify
as an expert witness. Weidl made no
showing why Perkins did not file a declaration under penalty of perjury. (Kulshrestha
v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 618.) In the letter, Perkins offered his conclusions
without stating his qualifications for making them. He opined on the subject of downhill water
flow erosion. He claimed that water
flowing from the wall caused "erosion at the downhill side of the road." But he did not claim to be a geologist or
hydrologist. He did not state that he
ever received training in water flow origination or diversion. Nor did he discuss why water would not
naturally flow downhill due to gravity, with or without a wall. Perkins opined
that a "new culvert and re-compaction [of soil] should be performed to
mitigate and diffuse the water transference." But he did not claim to have expertise on
soil. In fact, he said that "[a]
licensed Soils Engineer should be retained to provide soils and re-compaction
specifications." Weidl made no
showing why he did not retain such an expert to obtain those specifications, or
why he did not obtain a declaration from a licensed soils engineer.
Moreover, neither Weidl
nor Perkins made any estimates on the costs of abatement measures, the hardship
of abatement for the Gils, or whether it could be performed "without
unreasonable expense." (
that there was a continuing nuisance. (
From our independent review of the record, we conclude the trial court
did not err by granting summary judgment for the Gils.
The judgment is
affirmed. Costs on appeal are awarded in
favor of respondents.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
Denise
de Bellefeuille, Judge
Superior
Court County of Santa Barbara
______________________________
Frank P. Cuykendall for
Plaintiff and Appellant.
Griffith &
Thornburgh, LLP, John C. Eck for Defendants and Respondents.
