Wedbush v. Pacific Bell
Filed 10/19/06 Wedbush v. Pacific Bell CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| EDWARD W. WEDBUSH et al., Plaintiffs and Appellants, v. PACIFIC BELL TELEPHONE COMPANY et al., Defendants and Respondents. | D045571 (Super. Ct. No. GIC797475) [NO CHANGE IN JUDGMENT] |
THE COURT:
The opinion filed September 19, 2006, is modified as follows:
At Discussion II, prior to last paragraph beginning with "In sum then we reverse" (slip opn. p. 9), insert the following paragraph: "In light of our conclusion the evidence did not support the trial court's finding that Pacific Bell's occupation of the easement was open and notorious, that part of the judgment providing Pacific Bell with a prescriptive easement must be reversed. It will also be necessary to reverse and remand the Wedbushes' trespass, nuisance and inverse condemnation causes of action. In this regard we note that cases interpreting Code of Civil Procedure section 338, subdivision (b), and its predecessors have applied a discovery rule in determining when causes of action for trespass and injury to real property commence. (See Mehl v. People ex rel. Dept. Pub. Wks. (1975) 13 Cal.3d 710, 717; Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1149-1151; Leaf v. City of San Mateo (1980) 104 Cal.App.3d 398, 405-408; but see Castelletto v. Bendon (1961) 193 Cal.App.2d 64, 67.)[1]
As modified, the petitions for rehearing are denied.
There is no change in the judgment.
BENKE, Acting P. J.
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[1] We also note that in resolving the related question of whether an intrusion on land is permanent or continuing, even solid structures have been considered continuing nuisances "where it appeared that the structure could have been removed. [Citations.]" (Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 870, fn. 11.)
