Can a Superior Court Judge allow a County to withhold evidence affecting public safety with their full knowledge of the documents that they where allowed to withhold? County withholding evidence from discovery until December 2, 2008 of flooding before Hwy 1 Baughman Union Pacific Railroad stated at trial July 15, 2008. “And for the purpose of the exhibits we don’t need the photographs.” If the photographs are part of the evidence then why would they not be requierd to be provided?
Can a Superior Court Judge ignore the most recent California Case Law invloving Inverse Condemnation?
Oceano Nursery owner loses flooding lawsuit (Santa Maria Times)Sunday January 18th 2009, 2:06 am A San Luis Obispo County Superior Court judge has dismissed the remaining claims in a contentious lawsuit filed against numerous government agencies and local businesses by Oceano Nursery owner Bill Bookout. [News Source]
The News Media in San Luis Obispo County have been unable to show and explain to the public with the government documents/Photos/Quotes why this section of State Highway 1 in Oceano California has flooded over 50 times since February 2004! The Santa Maria Times story January 18, 2009 lays a foundation to show how our Constitutional rights can be taken away[News Source Article with comments showing intentional flooding of State Highway 1 e]
June 5, 2009 Flooding of State Highway 1 Rain creates big flooding problem in Oceano
California Supreme Court
State Highway 1 in Oceano should not be flooding any time it rains!
When our California Constitutional Rights are taken away from us and our property is taken for a dangerous public use, as Caltrans raising a State Highway and then shoveling and Grading Contaminated Storm Water Debris into a Storm Water Drainage Channel, it is our duty to make the public aware; especially when their public safety has been endangered! Please
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View Caltrans and County using State Hwy 1 for a storm water retention. The San Luis Obispo Superior Court has stated August 5, 2008 regarding the flooding of State Highway 1 and Oceano Nursery: "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance"
View the actions of this Caltrans Supervisor in this video showing Caltrans Supervision purposely shoveling debris into a Community's storm water drainage channel
Exhibit # 1488 Below shows a Caltrans Supervisor having his employees grade debris into a Community's storm water drainage channel!
Please view the local News Media Knowledge with Senator.Maldonado and Assemblymember.blakeslee@asm.ca.gov Knowledge as presented to them in this PDF file then Contact Senator.Maldonado@sen.ca.gov and Assemblymember.blakeslee@asm.ca.gov to ask questions that affects our California Residents from State Highway to our Pacific Ocean. Assemblyman Blakeslee is taking action see his letter April 30, 2009 Assemblyman_Sam_Blakeslee. pdf...Mention the videos presented to the Trial Court of a Caltrans Supervisor and his employees shoveling storm water debris into the Oceano Communities Storm Water Drainage Channel! View California_Coastal_Commission. Questions and knowledge pd... View Senator Abel_Maldonado. pdf Caltrans Caltrans_1953_Aerial_Photo Drainage Changes...
Caltrans as recently as November 26, 2008 have been shoveling debris into this drainaged channel.
Trial exhibits presented to Judge Tangeman showing no Stabilization from drainage changes in inverse condemnation with the Caltrans Maintenance Supervisor and his employee's shoveling debris into the Oceano Community's Storm Water Drainage Channel! Trial Exhibits seen by Judge Tangeman Exhibits 1516, 1513, 1514, 1468, 1469, 1470 PDF...notice dates on photos and that Caltrans is not removing debris from State Highway 1! Notice flooding of East side of State Highway 1 from Caltrans ovelay as seen in Caltrans photos June 13, 2002. Exhibits 1466 and 1467 show Caltrans in 2000 doing proper maintenance to this drainage channel used by Caltrans. Exhibits 1464 and 1465 show Caltrans raising State highway 1 in 2000 before they removed their retaining wall in 2003. Appeal Brief reasons and facts showing Inverse Condemnation Caltrans, County, OCSD Railroad pdf Exhibit # 1488 of Caltrans grading storm water debris into this drainage channel while Caltrans continues to shovel debris into this storm water drainage channel Exhibit #1517.
The Trial Court erred regarding Inverse Condemnation and "date of Stabilization" with the evidence above. The San Luis Obispo Court has ignored our California Constitution (Property Rights Article I Section 19) The Trial Court Stated "Finally,the Court does not find a factual basis to impose liability based upon allegedly increasing elevations of Highway 1 resulting from overlay projects. First, the evidence was mixed at best as to weather the absolute elevation of Highway 1 changed in a substantial way as a result of the "remove and replace" projects." Caltrans in California in changing State Highways are required to address Drainage! Caltrans had previously addressed their drainage at this location and were aware of their actions as seen in Exhibit # 579 "Overlay From Caltrans in 2001 on HWY 1." At Trial an in exhibits drainage changes by Caltrans are seen in 2000, 2001, 2002, 2003, 2005, 2006, 2007, 2008 showing no Stabilization! The County of San Luis Obispo withheld part of their knowledge of these drainage changes from discovery Exhibit # 579 states: "Caltrans raising Highway 1 at 13th Street (summer 2002) Contributing to elevated flooding (inability for water to cross roadway) on northeast side of Highway 1 (at Oceano Nursery)"
This trial case needs to become Case Law as the actions of Caltrans, County, OCSD and Union Pacific Railroad affects everyone in California. This case would be a good Supreme Court case as seen in this knowledge of a small drainage problem ignored and then with changes in this drainage by Caltrans, County, OCSD and Union Pacific Railroad since December 2000 show no date of stabilization.
The Public can help by asking Questions of Senator.Maldonado@sen.ca.gov and Assemblymember.blakeslee@asm.ca.gov Can Caltrans Legally preform this type of maintenance as Seen below by a Caltrans Supervisor? View the County trying to make a Deal ignoring public Safety of County residents .pdf See September 25, 1987, July 18, 2006 and February 6, 2007 letters and then ask why the County of San Luis Obispo would withhold Exhibit # 579 from discovery?
Caltrans and County of San Luis Obispo actions affecting our public safety in California needs to become National News. The public can bring this to the news medias attention as this storm water travels to the Pacific Ocean through the Baughman property as evidence withheld by the County of San Luis Obispo showed with Caltrans and the County having Tort Liability concerns west of State Highway 1 if they were to correct drainage problems as seen in their September 25, 1987 letter!
In the videos above viewed by the Trial Court Exhibit # 1816, this Caltrans Maintenance Supervisor is caught January 4, 2007 shoveling Contaminated Storm Water debris into the Oceano Community's Storm Water Drainage Channel. This type of maintenance is a substantial cause of flooding of State Hwy 1! This Caltrans Supervisor had engineered Concrete bags at the Railroads 24 inch pipe in December 2002 when the OCSD made drainage changes as seen in the video below of OCSD flooding State Highway 1 from their drainage changes!Judge Tangeman Exhibits presented to him during trial showing Caltrans endangering public Safety!...
This maintenance practice by Caltrans is seen in the videos and photos; November 26, 2008, April 2, 2008, December 19, 2007, January 4, 2007, March 22, 2005. Caltrans Claims this is normal for Caltrans. View Caltrans January 10, 2005 OCSD meeting with Caltrans talking about drainage. See Caltrans Response to the Regional Water Quality Control Board January 12, 2009 Caltrans-D-5 Pete_Riegelhuth January 12, 2009 Statement mailto... Caltrans Pete Riegelhuth Stated to the RWQCB "it was determined that Department roadway maintenance operations at this location are in compliance with requirements set forth in Department Stormwater Quality Guidance Manuals."
Caltran drainage changes in 2000 changing the capacity for storm water retention on State HWY 1 and the Oceano Community's man made drainage channel.
Caltrans shoveling storm water debris into a drainage system!
This Caltrans Supervisor has now set an example for all Caltrans employees in California regarding what Caltrans can do with storm water debris!
Caltrans employees with the San Luis Obispo Superior Court decision August 5, 2008 now have a right to follow their Supervisor in shoveling storm water debris into California drainage systems going against previous California case law Skoumbas v. City of Orinda. Aerrola v. Monterey (2002)
The Three Trees seen in these photos are on Caltrans Right A Way. Caltrans is now legally allowed to shovel the debris from these trees into California Drainage systems, that then clogg up California Drainage systems allowing Caltrans to Legally flood a California State Highway; endangering public safety!
Caltrans can now even shovel debris outside of their Right A Way to dispose of their debris!
Caltrans with the San Luis Obispo Superior Courts Judgement decision August 5, 2008 can now dispose of their Eulyptus trees and dirt in a community's drainage system as seen in this photo presented to the Trial Court. The San Luis Obispo Superior Court has ruled this is legal and that fault should be 100% on the person who owns the end of the drainage system that Caltrans is allowed to shovel and grade their debris into!
View Regional Water Quality Control Board Questions affecting California residents Health and Safety to the Pacific Ocean that need to be answered pdf by the Regional Water Quality Control Board as asked of Harvey Packard and Roger Briggs.
In this video below the RWQCB has allowed the Oceano Community Service District to dredge 4500 gallons of Well water daily through this storm water drainage system from their December 2002 drainage changes.
The San Luis Obispo Superior Court has stated after viewing the evidence. "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance"
I do not agree with the San Luis Obispo Superior Courts decisions as you can see from the documents presented to the trial Court. Please help by asking questions of Caltrans, County OCSD and Railroads Negligence through the news media. I am appealing the courts decision. The Appeal of this decision will become case law regarding our California Constitution. Bookout v. State of California in which we will find out if Caltrans, County, OCSD and Railroads drainage changes affecting public health and safety along with taking the public property and business property is legal? According to the California Constitution, Article I, Section 19. “Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner.”
Below are proper actions taken by the Regional Water Quality Control Board that have resulted in Caltrans correcting their drainage inlet Changes in December 2000 showing Caltrans prior negligence changing the stabilization of this drainage channel. The Public can help by seeing that the RWQCB answer the remaining questions of Harvey Packard" Hpackard@waterboards.ca.gov Roger Briggs" Rbriggs@waterboards.ca.gov in the PDF file above. The OCSD Well # 8 Pipe appears to have been permitted by them?
This is the same evidence seen by the RWQCB presented to the Trial Court showing Caltrans workers plowing and shoveling flood-related debris from Highway 1 into a roadside ditch as the Regional Water Quality Control Board states below.Trial Exhibits seen by Judge Tangeman PDF...
"John, Pete,As we spoke about earlier today John, here is the blog that Oceano businessman Bill Bookout has shared with Water Board staff and other agencies: http://www.oceanonurseryflooding.blogspot.com/
This blog includes photos and videos of Caltrans maintenance workers plowing and shoveling flood-related debris from Highway 1 into a road side ditch. Mr. Bookout says the Caltrans maintenance supervisor is David Fry(sp?). Mr. Bookout asserts that this activity is causing a nearby culvert beneath the railroad tracks to become clogged with debris, which exacerbates flooding of his property.
Caltrans' NPDES stormwater permit prohibits the discharge of wastes or wastewater from road sweeping vehicles or from other maintenance or construction activities to any surface waters or to any storm drain leadingto surface water bodies. This maintenance activity appears to violate this prohibition. Please direct your maintenance staff to immediately discontinue this activity. Any flood-related debris should be scooped up and properly disposed of in an appropriate location. If we receive any further complaints regarding this activity, we may find Caltrans inviolation of its NPDES requirements and pursue formal enforcement action.Thank you for your attention to this matter.--Matt Thompson Regional Water Quality Control Board Central Coast Region895 Aerovista Place, Suite 101San Luis Obispo, California 93401V (805) 549-3159F (805) 788-3572"
The Regional Water Quality Control Board was able to understand Caltrans maintenance Staff illegal actions as seen by the trial court. Unfortunatly, the trial court has stated. "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" Caltrans D-5 Pete Riegelhtuth NPDES Coordinator January 12, 2009 E-Mail Statement!...
The Trial Court erred as Caltrans' NPDES stormwater permit prohibits the discharge of wastes or wastewater from road sweeping vehicles or from other maintenance or construction activities to any surface waters or to any storm drain leading to surface water bodies. The Trial Court viewed the Videos and Photos of Caltrans actions!
Judge Martin J. Tangeman erred in his decision August 5, 2008 and ignored evidence as he States on Page 10 in his court decision regarding Caltrans Maintenance Supervisors actions above and photo documents attached reviewed by the RWQCB. "Mr. Fry testified that any work undertaken by Cal Trans employees in the channel to help clear the channel were most likely undertaken solely as a "good neighbor" practice by a "conscientious employee." Notice video of Mr. Fry above shoveling debris into this storm water drainage channel and photo below of Caltrans March 22, 2005 grading storm water debris into the Oceano Community's storm water drainage channel! See Judge Tangeman Exhibits presented to him during trial showing Caltrans endangering public Safety!... Notice that they are not removing this debris from State Highway 1!
View Governor Arnold Schwarzengger's letter. _Response to State HWY 1 Flooding in Oceano... and then what Caltrans thinks about public Safety in Oceano from their September 15, 1987 Quote: “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)"
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As in Arreola v. County of Monterey County trying to make a Deal ignoring public Safety of County residents .pdf County of San Luis Obispo knowing of theirs and Caltrans responsibilities for their drianage changes! This is a question for our State Representatives and news media to make public as seen in these documents.
The Trial Court erred as seen in the County's February 6, 2007 letter above. “As to the “fix” the defendants did agree that it does not make sense to resolve the plaintiff’s damage claim unless the problem has bee rectified. Otherwise, subsequent flooding will cause subsequent litigation.” The County's Attorney's previously stated July 18, 2006 "It remains my position that the County has a Right to allow its water to flow downhill and it is the responsibility of the downhill property owners to dispose of that water in an appropriate fashion." See Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. As to government liability! The February 2, 2009 Trial Court decision has taken away this ability to stand up to Constitutional Rights in California!
This is Caltrans Response to the RWQCB that now affects all of California residents as seen in their September 15, 1987 quote above. "Due to past litigation, the Department is no longer responsible or allowedto maintain the channel located off of the Caltrans right of way. If youwould like further information about the drainage situation and themaintenance effort at this location, which has a history beyond what canbe detailed in an e-mail, please let me know so that I can arrange ameeting with Department staff familiar with the drainage challenges andrestrictions at this site.Respectfully,Pete RiegelhuthD-5 NPDES Coordinator"Office 805-549-3375Cell 805-305-7726Fax 805-542-4746"john_papathakis@dot.ca.gov Marissa Nishikawa" marissa nishikawa@dot.ca.gov Pete Riegelhuthpete_riegelhuth@dot.ca.gov
In Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. As cited to the Trial Court. “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.”Judge Tangeman Exhibits presented to him during trial showing Caltrans County and OCSD aware of the risk posed by their improvements Safety!...
The Question that needs to be asked of Caltrans through our State Representatives is why if this section of California State Highway 1 has a history of drainage challenges would Caltrans raise the State Highway a foot in December 2000 and then start grading and shoveling contaminated storm water debris into this community's storm water drainage channel as they were aware of the risk this would pose from what they thought was a public improvement?
The Trial Court erred with exhibit #1488 above of Caltrans actions after raising State HWY 1 and changeing the drainage channels stabilization by Shoveling and Gradings debris into the Oceano Community's Storm Water drainage channel onto Railroad property taking the railroads property by eminent domain powers. This power and their drainage changes since December 2000 combined with the Oceano Community Service District taking the drainage channel to construct a place to dispose of OCSD well water and debris is unconstitutional with the damage this causes to a State Highway, local business, public safety and the Community of Oceano as a whole.
The Trial Court erred in exhibit #1816 showing Caltrans shoveling storm water debris into the Oceano Community's Storm Water drainage Channel outside of Catrans 4 FT Right of way changing the date of Stabilization with Caltrans Maintenance changes. As stated by the Trial Court "Mr. Fry testified that any work undertaken by Cal Trans employees in the channel to help clear the channel were most likely undertaken solely as a "good neighbor" practice by a "conscientious employee." Exhibit #579 withheld from discovery shows shows photo Exhibits of Caltrans removing debris until 2002! See PDF of Exhibits.County withholding evidence from discovery until December 2, 2008 of flooding before Hwy 1 Baughman Read the Baughman Questionnaire of County Drainage
Questions asked of the Regional Water Quality Control Board unanswered by the RWQCB! Regional Water Quality Control Board actions affecting California residents Health and Safety to the Pacific Ocean pdf The public can help in asking these same questions of the Regional Water Qauality Control Board through the news media to see that these questions are answered. Notice Caltrans actions below and OCSD pipe in drainage channel damming debris.
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Oceano Nursery Flooding
The Flooding Story of Oceano Nursery- Bookout v. State of California--- Judge Martin J. Tangeman in his August 5, 2008 decision determined that the "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" www.oceanonurseryflooding.blogspot.com
10/30/08
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SIX
____________________
WILLIAM BOOKOUT, individually
and dba OCEANO NURSERY,
Plaintiffs/Appellants,
vs.
STATE OF CALIFORNIA -
DEPARTMENT OF
TRANSPORTATION; COUNTY
OF SAN LUIS OBISPO; OCEANO
COMMUNITY SERVICES
DISTRICT; and
UNION PACIFIC RAILROAD,
Defendants/Respondents
))))))))))))))))
Second Appellate No. BB214906
Appeal from the Judgment of the
Superior Court of San Luis Obispo
County Case No. CV 060384
Hon. Martin J. Tangeman, Presiding
Phase One - Inverse Condemnation
Liability
Hon. Teresa Estrada-Mullaney, Presiding
Phase Two
____________________
APPELLANT’S OPENING BRIEF
____________________
John W. Belsher, #103088
Gregory A. Connell, # 233228
BELSHER & BECKER
412 Marsh Street
San Luis Obispo, CA 93401
(805) 542-9900
slolaw@belsherandbecker.com
Attorneys for Plaintiff and Appellant
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SIX
____________________
WILLIAM BOOKOUT, individually
and dba OCEANO NURSERY,
Plaintiffs/Appellants,
vs.
STATE OF CALIFORNIA -
DEPARTMENT OF
TRANSPORTATION; COUNTY
OF SAN LUIS OBISPO; OCEANO
COMMUNITY SERVICES
DISTRICT; and
UNION PACIFIC RAILROAD,
Defendants/Respondents
))))))))))))))))
Second Appellate No. BB214906
Appeal from the Judgment of the
Superior Court of San Luis Obispo
County Case No. CV 060384
Hon. Martin J. Tangeman, Presiding
Phase One - Inverse Condemnation
Liability
Hon. Teresa Estrada-Mullaney, Presiding
Phase Two
____________________
APPELLANT’S OPENING BRIEF
____________________
John W. Belsher, #103088
Gregory A. Connell, # 233228
BELSHER & BECKER
412 Marsh Street
San Luis Obispo, California 93401
Telephone: (805) 542-9900
slolaw@belsherandbecker.com
Attorneys for Plaintiff/Appellant
State of California
Court of Appeal
Second Appellate District
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
California Rules of Court, rules 8.208, 8.490(i), 8.494(c), 8.496(c), or 8.498(d)
The following entities or persons have either (1) an ownership interest of 10 percent
or more in the party or parties filing this certificate (Cal. Rules of Court, rule 8.208(e)(1)),
or (2) a financial or other interest in the outcome of the proceeding that the justices should
consider in determining whether to disqualify themselves (Cal. Rules of Court, rule
8.208(e)(2)):
- William Bookout is the sole owner and proprietor of Oceano Nursery
Dated: October __, 2009 BELSHER & BECKER
By: ______________________
JOHN W. BELSHER
Attorneys for Plaintiff/Appellant WILLIAM
BOOKOUT dba OCEANO NURSERY
i
TABLE OF CONTENTS
PAGE
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
III. STATEMENT OF APPEALABILTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
IV. STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
V. SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
VI. LEGAL DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
VII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
CERTIFICATE OF WORD COUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
PROOF OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ii
TABLE OF AUTHORITIES
Page
Cases
Aaron v. City of Los Angeles (1974) 40 Cal.App.3d 471, 491 . . . . . . . . . . . . . . . . 11, 12
Amador Valley Investors v. City of Livermore (1974) 43 Cal.App.3d 483, 489 . . . . . . 11
Andrew Jergens Co. v. City of Los Angeles (1951) 103 Cal.App.2d 232, 229 . . . . . . . 27
Arreola v. County of Monterey (2002) 99 Cal.App.4th 722,
761-763. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 16, 17, 18
Baker v. Burbank Airport (1985) 39 Cal.3d 862, 867 . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Baker v. Burbank-Glendale-Pasadena Airport Authority (1985)
29 Cal.3d 862, 869 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Bauer v. County of Ventura (1955) 45 Cal.2d 276, 284-285 . . . . . . . . . . . . . . . . . . . . . 15
Blau v. City of Los Angeles (1973) 32 Cal.App.3d 77, 83-85 . . . . . . . . . . . . . . . . . . . . 15
Breidert v. Southern Pacific Company (1964) 61 Cal.2d 659 . . . . . . . . . . . . . . . . . 20, 21
Bunch v. Coachella Valley Water Dist. (1997) 15 Cal.4th 432 . . . . . . . . . . . . . . . . . . . 23
California State Automobile Assn. v City of Palo Alto (2006)
138 Cal.App.4th 474, 483 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 16
Canto v. Pacific Gas and Electric Company (1987) 189 Cal.App.3d. 160 . . . . . . . . . . . 19
Charles C. Chapman Bldg. Co. v. California Mart (1969)
2 Cal.App.3d 846, 853 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 266 . . . . . . . . . . . . 21
Deeter v. Angus (1986) 179 Cal.App.3d 241, 255 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
iii
Frustuck v. Fairfax (1963) 212 Cal.App.2d 345, 374 . . . . . . . . . . . . . . . . . . . . . . 9, 10, 24
Joseph v. Drew (1950) 36 Cal.2d 575, 579 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Lee v. Los Angeles County Metropolitan Transportation Authority
(2003) 107 Cal.App.4th 848 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33
Los Angeles County Metropolitan Transportation Authority v. Continental
Development Corp. (1997) 16 Cal.4th 694 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1147 . . . . . . . . . . 31, 32
Marin v. City of San Rafael (1980) 111 Cal.App.3d 591, 596 . . . . . . . . . . . . . . . . . 23, 24
McKinney v Ruderman (1962) 203 Cal.App.2d 109, 115 . . . . . . . . . . . . . . . . . . . . . . . 24
McMahan’s of Santa Monica v. City of Santa Monica (1983)
146 Cal.App.3d 683, 697-698 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 21
Newman v. City of Alhambra (1918) 179 Cal. 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596 . . . . . . . . . . . 16, 17, 18, 19
Paterno v. State (2003) 113 Cal.App.4th 998, 1029 . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Pate v. Channel Lumber Co. (1997) 51 Cal.App.4th 1447, 1455 . . . . . . . . . . . . . . . . . . 34
Phillips v. City of Pasadena (1945) 27 Cal.2d 104, 107-108 . . . . . . . . . . . . . . . . . . . . 31
Pierpont Inn, Inc. v. State of California (1969) 70 Cal.2d 282, 291 . . . . . . . . . . . . . . . . 11
San Diego Metropolitan Transit Develop. Bd. v. Handlery Hotel, Inc. (1999)
73 Cal.App.4th 517, 528 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28
Sheffet v. County of Los Angeles (1970) 3 Cal.App.3rd 720, 735 . . . . . . . . . . . . . . . . 23
Smith v. Los Angels (1944) 66 Cal.App.2d 562, 586 . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
Spaulding v. Cameron (1952) 38 Cal.2d 265, 268 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
iv
Steiger v. City of San Diego (1958) 163 Cal.App.2d 110 . . . . . . . . . . . . . . . . . . . . . . . . 24
Stoney Creek Orchards v. State (1970) 12 Cal.App.3d 903, 907 . . . . . . . . . . . . . . . . . . 13
Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1547-1548 . . . . . . . . . . . . . . . . . . . 34
Statutes
Code of Civil Procedure § 338(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Code of Civil Procedure § 338 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Code of Civil Procedure § 631.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28
Cal. Const., Art. I § 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Other Authorities
California Procedure, § 427 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CACI 400, 1100, 2000, and 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
CACI 431 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Restatement (Second) of Torts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Van Alstyne, Condemnation Practice in California (2007) § 16.4 . . . . . . . . . . . . . 10, 18
1
I.
INTRODUCTION
This appeal is from two rulings on two phases of a bifurcated trial. The first ruling
Petitioner is appealing is the ruling on Defendants’ Motion for Directed Verdict for the first
phase of the trial which dealt with the issue of inverse condemnation liability only. The
second ruling Petitioner is appealing is the ruling on Defendants’ Motion for Judgment on
the Pleadings which barred Plaintiff from moving forward on his remaining causes of action
in the second phase of the trial. These judgments have been made in error and are not
supported by the substantial evidence in the record or California law. These Defendants have
successfully used the erroneous first phase ruling to prevent Plaintiff from a trial on the
merits of this case, which has denied him his right to petition his grievances regarding the
flooding of his property in Oceano, California.
II.
PROCEDURAL HISTORY
The First Amended Complaint was filed on May 24, 2007 (Appendix #1). The case
was bifurcated by Honorable Judge Martin J. Tangeman during the pre-trial readiness
conference. The first phase for inverse condemnation liability began on July 9, 2008. After
Plaintiff’s case in chief, all remaining Defendants orally moved for a non-suit and/or directed
verdict (Reporter’s Transcript (“RT”) Vol. 6. Pgs. 1624 - 1650), which was granted and
2
entered into the record on August 5, 2008 (Appendix #13). Plaintiff filed a motion for
reconsideration and new trial on August 14, 2008, which was denied (Appendix #14).
The second phase of the trial on Plaintiff’s remaining causes of action, i.e. Dangerous
Condition of Public Property, Nuisance, Trespass, Negligence, and Injunctive Relief, was set
for trial. Defendants then filed, or joined in, a Motion for Judgment on the Pleadings based
on the ruling on the first phase of the trial (Appendix #17 - 23). These motions were granted
on January 5, 2009 (Appendix #24), and notice of this ruling was mailed to Plaintiff on
February 4, 2009 (Appendix #25).
III.
STATEMENT OF APPEALABILTY
Judge Tangeman issued his ruling for directed verdict on the first phase for inverse
condemnation liability only on August 5, 2008 (Appendix #13). The Honorable Judge Teresa
Estrada-Mullaney issued her ruling on the Defendants’ Motion for Judgment on the
Pleadings on January 5, 2009 (Appendix #24), and notice of this second ruling on the second
phase was mailed by opposing counsel on February 4, 2009 (Appendix #25). These
judgments became final and appealable pursuant to Code of Civil Procedure section 904.1
on February 4, 2009. Plaintiff filed his Notice of Appeal on March 17, 2009 (Appendix #26).
///
///
3
IV.
STATEMENT OF FACTS
Plaintiff bought property in 2000 on Highway One at the intersection of Paso Robles
Street and 13 Street in Oceano (Exhibit th 1449; RT Vol. 1 Pg. 35). He had no knowledge of
any potential for flooding at the property when it was purchased (RT Vol. 1 Pgs. 35-36). He
invested substantially in creating and building up the Oceano Nursery on this property
(Exhibits 1002, 1004-1009; RT Vol. 1 Pg. 40). Plaintiff managed to build a solid reputation
in the Oceano community, and his nursery and gift shop were well-known and loved for its
unique inventory (Exhibit 1003).
The Oceano Nursery opened in July of 2000 (RT Vol. 1 Pg. 35). The nursery operated
without interruption until it was first flooded, on February 25, 2004 (Exhibits 1010-1055; RT
Vol. 1 Pg. 41). The nursery flooded twelve (12) times prior to trial, with the last flood on
February 3, 2008 (Exhibit 1867; RT Vol. 5 Pgs. 1210-1211). This periodical flooding ruined
the Oceano Nursery and its reputation, and the nursery lost its loyal clientele. The Oceano
Nursery finally closed its doors on January 13, 2008 (Exhibit 1867).
The causes of these floods are complex and diversified. Plaintiff filed his complaint
against the Pismo Oceano Vegetable Exchange (“POVE”), CalTrans, County of San Luis
Obispo, Union Pacific Railroad, and the Oceano Community Services District, alleging that
each party bears some responsibility for the flooding of Plaintiff’s property. A settlement
4
was achieved with POVE and approved by the Court on July 14, 2008 (RT Vol. 4 Pgs. 962 -
963).
Once a flood pool has formed in front of Plaintiff’s property due to blockages in the
24" culvert going under the Railroad (and its inadequate size), and the flood pool blocks
Highway One adjacent to Plaintiff’s property, stormwater from County property, OCSD
property, CalTrans Property, and Railroad property continue to simultaneously flood
Plaintiff’s property (RT Vol. 6 Pgs. 1606 - 1607). In essence, Defendants use Plaintiff’s
property as a retention basin to cover the inadequacies in their own surface water discharge
systems and practices (RT Vol. 6 Pgs. 1606 - 1607).
A. Union Pacific Railroad Company
Union Pacific Railroad Company is the owner of a 24" surface water drainage culvert
which runs under their railroad and a drainage channel which leads to the culvert (RT Vol.
4 Pgs. 968 - 973; Exhibits 1268, 1740, 1743 and 1869). The railroad bed acts as a dam
across the former location of drainage in this watershed (RT Vol. 4 Pg. 1246). During small
and heavy rainstorms, this culvert and drainage channel reach their capacity in a relatively
short amount of time and water begins to back up all the way across Highway One to
Plaintiff’s property (RT Vol. 6 Pgs. 1601-1603). During certain flood events, Plaintiff’s
property has been under as much as sixteen to eighteen inches of water (RT Vol. 1 Pgs. 64-
65). The culvert and channel also accumulate debris from the surrounding area which
reduces its capacity (RT Vol. 5 Pg. 1269).
5
The Union Pacific Railroad leased, then sold, the real property on the outfall side of
the culvert to POVE (RT Vol. 2 Pg. 423; RT Vol. 3 Pg. 628). POVE’s involvement is
important in understanding the history of the drainage system in this watershed. As early as
1973, localized flooding conditions on Highway One and 13th Street were reported by
CalTrans (Exhibit 1772; Exhibit 1773). Nonetheless, in 1977, while a tenant of Union
Pacific Railroad and pursuant to permits issued by San Luis Obispo County, POVE altered
the discharge of the culvert by constructing a subsurface junction box, which collects the
storm water drainage from the drainage channel and culvert running from the opposite side
of the railroad, then diverts it 90 degrees over 200 feet through a second 24" pipe to a small
retention pond on POVE’s property (RT Vol. 2 Pgs. 414 - 416; RT Vol. 5 Pg. 1255). This
junction box acts as a receptacle for debris and reduces the capacity of the system,
particularly in the absence of a drainage system maintenance plan (RT Vol. 5 Pg. 1269).
B. Oceano Community Services District
The Oceano Community Services District owns property in the watershed which
drains to this culvert (RT Vol. 5 Pg. 1245, Exhibit 1315). It uses the drainage culvert to
discharge water from its Water Well #8 (RT Vol. 2 Pgs. 385 - 386). This well discharges at
2500 gallons per minute directly into the undersized culvert blowing in and cementing debris
and silt into the culvert year-around (RT Vol. 2 Pg. 383; RT Vol. 4 Pgs. 1268 - 1269, 1272).
Importantly, this pipe traps debris flowing in the area in front of the 24" pipe inlet,
contributing to blockages in the pipe and junction box outfall (RT Vol. 5 Pg. 1272). OCSD
6
has performed haphazard maintenance of the drainage channel and culvert at certain times
(RT Vol. 2 Pgs. 390-393). These actions have implicated OCSD in this lawsuit, and have
been identified as a substantial cause of the floods (RT Vol. 6 Pg. 1568; Exhibit 1830).
OCSD claims it has no plan whatsoever for maintenance of the channel and culvert it impacts
and uses (RT Vol. 2 Pgs. 390-393).
C. CalTrans
CalTrans is the owner and responsible agency for Highway One (RT Vol. 4 Pg. 910;
Exhibit 1449). CalTrans owns the first four or so feet of the drainage channel as part of its
right-a-way (RT Vol. 4 Pg. 911). It uses the channel and the culvert to drain surface water
from Highway One (RT Vol. 4 Pgs. 921-211, 925; Exhibit 1466). As owner of the right-ofway
which encroaches some four feet into the drainage channel it has exerted some control
of the drainage channel at certain times, and performed haphazard maintenance (Exhibit
1467; RT Vol. 4 Pgs. 911-927; RT Vol. 6 Pgs. 1563-1564). CalTrans impervious surface
(Highway One) is a major contribution of run-off which might otherwise percolate into the
ground, representing 7.3% of the area draining to the culvert. (RT Vol. 6, Pg. 1520).
D. County of San Luis Obispo
The County of San Luis Obispo is the responsible agency for drainage in Oceano (RT
Vol. 2 Pg. 304; Exhibit 1558). It has created a substandard street, curb, gutter, and sidewalk
drainage system in the watershed which drains to the culvert (RT Vol. 2 Pgs. 313-314). This
system funnels the majority of the surface water which floods Plaintiff’s property to the
7
impacted area (RT Vol. 6 Pg. 1528). County Public Works Official, Glenn Priddy, testified
these improvements were part of the County’s drainage system (RT Vol. 2 Pgs. 366-367).
By issuance of building permits and street improvements the County is responsible for the
urbanization of the watershed which reduces the absorption of stormwater and has increased
runoff to the flood location (RT Vol. 6 Pgs. 1528-1529). The County issued building permits
for the POVE junction box and pond, listing various conditions and specifications for the
private work. (RT Vol. 5 Pgs. 1257-1264).
V.
SUMMARY OF ARGUMENT
A. The Trial Court Applied the Incorrect Statute of Limitations for Inverse
Condemnation during the First Phase of the Trial
B. The Trial Court Failed to Use the Date of Stabilization Approach to Determine
the Date of Accrual
C. The Trial Court Failed to Use the Correct Inverse Condemnation Liability
Standards
1. Strict Liability, not the Rule of Reasonableness, Applies in this
Litigation
2. Union Pacific Railroad Company Liability
3. County of San Luis Obispo Liability
4. OCSD Liability
5. CalTrans Liability
D. The Directed Judgment Pursuant to Code of Civil Procedure § 631.8 is Not
Substantiated by the Record
8
E. The Granting of Defendants' Motion for Judgment on the Pleadings Deprived
Plaintiff of his Right of Petition
1. Plaintiff’s Remaining Causes of Action Differ from Inverse
Condemnation
2. The Flooding of Plaintiff’s Property is a Continuing Nuisance
F. The Trial Court Improperly Allowed Evidence into the Record During the First
Phase which was not Produced During Discovery, Substantially Prejudicing
Plaintiff.
VI.
LEGAL DISCUSSION
A. The Trial Court Applied the Incorrect Statute of Limitations For Inverse
Condemnation During the First Phase of the Trial
Judge Tangeman ruled that Code of Civil Procedure § 338(j) governs the inverse
claim, setting a three year statute of limitations (Appendix #13). Plaintiff alleged, and
supported with testimony at trial that his cause of action did not begin to accrue until the
flooding condition had substantially interfered with his use and enjoyment of his property in
2004, leaving his lawsuit filing well within the three year statute for inverse condemnation
(Appendix #9; RT Vol. 1 Pgs. 41-44; RT Vol. 5 Pgs. 1218-1228). (Exhibits 1011, 1022-
1024). Plaintiff disputes that there is substantial evidence establishing an earlier date (and
in particular, objects to the last minute introduction of surprise Exhibit 579 relied upon by
the Court in making its determination). Even assuming, arguendo there is evidence that
9
Plaintiff’s property had first flooded in 2002 from the conditions alleged in the First
Amended Complaint, a five-year statute of limitation applies for inverse condemnation
where, as here, repeated occupation of property has resulted in a total taking of Plaintiff’s
property.
Plaintiff filed this lawsuit on May 2, 2006, approximately two years and two months
from the first time he testified that his property flooded and damaged his property, on
February 25, 2004 (RT Vol. 1 Pgs. 41-44). The Trial Court disagreed, relying on Plaintiff’s
comments on a questionnaire submitted to the County of San Luis Obispo as “evidence” that
his property flooded in 2002, and therefore, his current action is barred by a three-year statute
of limitation (RT Vol. 5 Pgs. 1218-1228; Exhibit 579). In an inverse condemnation action,
if property damage is alleged by a single trespass event, the three-year limitation applies, but
if a property taking has been alleged from a continual and permanent trespass, a five-year
limitation on an action to recover applies. Smith v. Los Angeles (1944) 66 Cal.App.2d 562,
586; Frustuck v. Fairfax (1963) 212 Cal.App.2d 345, 374. “When an act of trespass amounts
to a taking or damaging for a public use it is more than a mere trespass on an interest in land,
but it takes from the owner of the land something necessary and essential to the use and
enjoyment of the property and thus results in the taking away of a valuable property right.”
Frustuck at 374.
In Frustuck, the City of Fairfax was found liable in inverse condemnation for its
failure to appreciate the probability that the drainage system which drained to the plaintiff’s
10
property from a subdivision approved by the City, functioning as deliberately conceived, and
as altered and maintained by the diversion of waters from their normal channels, would result
in damage to private property. Id. at 362. The Court held that the five-year statute of
limitation applied since the defendant in that action had taken the plaintiff’s property for
public use (Id. at 374). Similarly, in the case at hand, the flooding of plaintiff’s property goes
beyond an isolated trespass and has ripened into a taking of his property for a public use, as
evidenced by the twelve floods to the time of trial and the expected continual flooding during
rainstorms in Oceano.
Code of Civil Procedure § 338 codified the three-year statute set forth in Smith v. Los
Angeles (1944) 66 Cal.App.2d 562, dealing with actions for “physical damage to private
party.” California Procedure, § 427. The statute does not abrogate the five-year statute for
a “taking” of private property for a public use, and the five-year statute of limitation should
apply. See e.g. Van Alstyne, Condemnation Practice in California (2007) § 16.4.
B. The Trial Court Failed to Use the Date of Stabilization Approach to Determine
the Date of Accrual
Even assuming the five-year statute of limitations does not apply, Plaintiff’s cause of
action for inverse condemnation is not time barred since the circumstances surrounding the
flooding had not “stabilized” until 2004, and Plaintiff had not recognized the potential for
damage to his property until the first flood on February 25, 2004. He did not have a cause
of action until his property had actually been damaged, and the generalized neighborhood
11
flooding concerns expressed in Exhibit 579 did not ripen his claim in 2002, as held by Judge
Tangeman in his ruling.
Further, the conditions in the watershed continue to change annually. The
development without drainage mitigation upstream, and the haphazard maintenance of all
Defendants continues to de-stabilize the watershed.
The point of accrual must be carefully determined by the court for a cause of action
of a continuing nature, and the court must consider the level of interference with a property
interest when making this determination. Amador Valley Investors v. City of Livermore
(1974) 43 Cal.App.3d 483, 489; Aaron v. City of Los Angeles (1974) 40 Cal.App.3d 471,
491. In fixing the date of accrual of a cause of action for inverse condemnation, Courts have
generally used the “date of stabilization” approach. Pierpont Inn, Inc. v. State of California
(1969) 70 Cal.2d 282, 291, disapproved on other grounds by Los Angeles County
Metropolitan Transportation Authority v. Continental Development Corp. (1997) 16 Cal.4th
694. The date of stabilization method measures the date of the governmental “taking” as of
the point in time when the damaging activity has reached a level which substantially
interferes with the owner’s use and enjoyment of his property. Aaron at 492. Plaintiff did
not suffer any damages from any flooding before 2004 from the culvert and drainage
channel, such as would place this action under a three-year statute of limitation (RT Vol. 1
Pgs. 41-44). Plaintiff did not suffer any damages from the flooding backing up from the
culvert and drainage channel in any years except 2004, 2005, 2006, 2007, 2008, (and on
12
every storm event thereafter) (RT Vol. 5 Pgs. 1219-1225). Plaintiff’s complaint, and the
evidence presented, demonstrated that this case is a taking of private property for public use
as a detention basin for surface water drainage, which did not accrue until 2004.
The Defendants and Judge Tangeman relied upon Exhibit 579 in arguing that
Plaintiff’s property flooded prior to 2004 and that he had suffered damages prior to 2004 (RT
Vol. 5 Pgs. 1218-1228). However, Plaintiff testified in a declaration that he suffered from
“nuisance” water trapped on the east side of Highway One prior to a crown removal by
CalTrans in 2003 (Appendix #9). Spray from this nuisance water affected his inventory
stacked along Highway One (Appendix #9). This was substantiated by the testimony of
CalTrans employees, David Fry (RT Vol. 4 Pgs. 926-927) and Kelly McKinley (RT Vol. 3
Pgs. 643-644). This limited incident did not trigger the statute for the matters alleged in the
First Amended Complaint.
C. The Trial Court Failed to Use the Correct Inverse Condemnation Liability
Standards
The California Constitution requires a public entity to pay “just compensation” to
anyone who owns or holds a valuable interest in real or personal property if that interest is
taken or damaged as a result of a public use. Cal. Const., Art. I § 19. Plaintiff must show
that the Defendants planned, approved, constructed, or operated a public project, or was
otherwise engaged (“substantially participated”) in some activity for public use or benefit.
Stoney Creek Orchards v. State (1970) 12 Cal.App.3d 903, 907, emphasis added. As long
13
as there is substantial participation, it is immaterial which public agency has title to the lands
or has responsibility for operation of the project. Stoney at 907. The right to exercise
eminent domain is not required in order to hold a public entity liable for inverse
condemnation. Baker v. Burbank Airport (1985) 39 Cal.3d 862, 867. The liability that
various entities might face in the event of a flood depends on the role that they have played
in the flooded region and the public uses which have caused the taking. In assessing liability
as between various agencies, courts consider which entity has sufficient control and authority
to prevent, remedy, or guard against known danger. Arreola v. County of Monterey (2002)
99 Cal.App.4th 722, 761-763. Each Defendant in this litigation has substantially participated
in some form, shape, or manner in a public use which has taken Plaintiff’s property.
Plaintiff’s expert, Keith Crowe, identified six substantial factors which have caused
this flooding condition to exist (Exhibit 1830; RT Vol. 5 Pg. 1245). These factors are:
(1) Blocking the natural drainage way with a pipe too small for the conditions,
(2) OCSD Well #8 Discharge Pipe adding silt and debris during normal well
operation,
(3) Pipe capacity compromised by poorly designed extension,
(4) Upstream watershed conditions worsened,
(5) Decrease in storage volume at inlet, and
(6) Lack of maintenance.
14
These six factors were present during all twelve flooding events and form the basis
for Plaintiff’s expert’s opinion (RT Vol. 5 Pg. 1245, RT Vol. 6 Pg. 1519). Once a plaintiff
has identified the substantial factors which cause the injury, the burden shifts to the public
entity to produce evidence that would show that other forces alone produced the injury.
California State Automobile Assn. v City of Palo Alto (2006) 138 Cal.App.4th 474, 483.
Defendants never entered any contradictory evidence, and never cross-examined Plaintiff’s
expert. The Trial Court inserted its own “expert” opinion for that of Plaintiff’s expert and,
on that basis, erroneously granted the Motion for Judgment after Plaintiff’s case in chief in
the First Phase of the Trial (Appendix #13).
In California State Automobile Assn. v City of Palo Alto, the Trial Court found that
three substantial factors caused a sewage backup, namely tree roots invading the sewer main,
inadequate slope, and standing water in the main. The Court held that the plaintiff did not
have to establish the “how and why” the blockage occurred, but only the substantial factors
which show the public improvement failed to function as intended. Id. Inverse condemnation
liability is still allowed when there are concurrent substantial causes, even if plaintiff was
responsible for one of those factors. Blau v. City of Los Angeles (1973) 32 Cal.App.3d 77,
83-85. The factors identified by Plaintiff’s expert can all be attributed to the public uses by
the named Defendants in this action.
These public entities can also be held liable in inverse condemnation for their
negligent plans of maintenance (or in some instances no plan of maintenance) for the culvert
15
and drainage channel which they use and the other areas under their control contributing to
flooding of Plaintiff’s property. A public entity’s maintenance of a public improvement
constitutes the constitutionally required “public use” so long as it is the entity’s deliberate act
to undertake the particular plan or manner of maintenance. Bauer v. County of Ventura
(1955) 45 Cal.2d 276, 284-285. Damage caused by certain maintenance of an improvement,
rather than the improvement itself, can engender liability for inverse condemnation.
McMahan’s of Santa Monica v. City of Santa Monica (1983) 146 Cal.App.3d 683, 697-698.
The Trial Court in the First Phase never addressed liability for the Defendants’ negligent
plans of maintenance (in the case of CalTrans, the County and OCSD).
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. Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 744. A negligent
maintenance plan supports inverse condemnation. McMahan’s of Santa Monica v. City of
Santa Monica (1983) 146 Cal.App.3d 683, 696 (failure to replace water mains known to have
limited life); Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596 (no monitoring
program for city water pipes but instead “replace it when it breaks” approach); California
State Auto. Ass’n v. City of Palo Alto (2006) 138 Cal.App.4th 474 (city was liable for
blockage in city sewer main that caused raw sewage to flow into an adjacent residence).
16
Defendants had no adequate plan for maintenance for the drainage from their
properties to the culvert which ultimately floods Plaintiff’s property. (County employee,
Glenn Priddy, RT Vol. 2 Pg. 341; OCSD employee, Phil Davis, RT Vol. 2 Pg. 391; CalTrans
employee, David Fry, RT Vol. 4 Pgs. 911-912, 917, 921-922, Union Pacific Railroad
employee, Javier Sanchez, RT Vol. 4 Pgs. 965-972). Responding to flooding events or
haphazard maintenance is no plan at all. A “replace it when it breaks” maintenance plan has
been held to subject a public entity to inverse condemnation liability as a negligent
maintenance plan. Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596. This is
exactly the type of maintenance plan these Defendants have employed, if they have even
implemented a plan. (RT Vol. 6 Pg. 1568)
1. Strict Liability, not the Rule of Reasonableness, Applies in this Litigation
In an inverse condemnation action there are two different analyses to determine if a
public entity is liable. One is the common strict liability standard and the other is the “Rule
of Reasonableness.” The common strict liability standard provides if a public use damages
private property, and a public entity planned, approved, constructed, operated a public
project, or was otherwise engaged in some activity for the benefit of the general public, then
that public entity is liable for all damages caused by that public use. Alternatively, a “Rule
of Reasonableness” was adopted in flood control litigation cases; this test only applies to
public projects which were constructed to protect the public from flood water. The Trial
Court erroneously applied the “Rule of Reasonableness” standard.
17
Arreola v. County of Monterey (2002) 99 Cal.App.4th 722 illustrates this distinction.
This case involved the failure of the Pajaro River Levee Project in 1995 and a separate
inverse condemnation liability finding against the State of California since their drainage
culverts under Highway One obstructed the path of the flood on its way to the sea and
damaged private property. The Appellate Court refused to apply the Rule of Reasonableness
against the State of California in this instance, since the State’s purpose in building the
highway was to benefit the traveling public, not protect it from flood waters. Arreola at 753-
754. The Court concluded that the two sources of the Rule of Reasonableness were
traditional private water law, and Professor Van Alstyne’s public policy balancing analysis,
which both weighed the balance towards strict liability. First, traditional water law does not
privilege downstream obstruction of flood water under any “reasonableness” doctrine, as in
the Arreola. Second, Van Alstyne’s public policy analysis only permits a reasonableness
approach where a project’s primary purpose is to protect plaintiff’s property from flooding
(i.e. flood control).
Another case which addressed this issue was Pacific Bell v. City of San Diego (2000)
81 Cal.App.4th 596. This case involved a corroded cast-iron water pipe owned and
maintained by the City of San Diego which burst and flooded a nearby facility owned by the
plaintiff Pacific Bell. The City of San Diego argued that it was not liable on an inverse
condemnation theory because its maintenance of the pipe which burst was reasonable. The
City acknowledged that the general rule in inverse condemnation case is strict liability, but
18
argued that in water damage cases a rule of reasonableness exception applies. The Appellate
Court held that the City was strictly liable on an inverse condemnation theory even if it
maintained the pipe reasonably. The Court explained that the water law exception, on which
the City relied, applied only to damages caused by public flood control improvements.
Because the subject pipes were not flood control improvements the general rule applied and
the City was strictly liable for the damage to plaintiff’s property. Pacific Bell at 614-615.
In this case, County expert Glenn Priddy confirmed that this is not a flood control case
(RT Vol. 2 Pg. 306) and Plaintiff’s expert engineer confirmed the drainage improvements
are not a flood-control facility (RT Vol. 6 Pg. 1573). Apparently losing sight of this, the
Trial Court improperly applied a “reasonableness” test.
2. Union Pacific Railroad Company Liability
The Trial Court ruled the railroad was immune from inverse liability since it claimed
it did not acquire its property by eminent domain. In fact, Union Pacific Railroad’s own
right-of-way map shows it did acquire the property in question by eminent domain (Exhibit
1722). Deeds admitted into evidence confirmed this fact (Exhibits 1724, 1904).
Nonetheless, the Trial Court found the case against the railroad was governed by Canto v.
Pacific Gas and Electric Company (1987) 189 Cal.App.3d. 160. The Trial Court stated that
there is no liability in inverse condemnation of a public utility based upon damages caused
by construction or extension of private facilities on private land, at least where the public
utility does not exercise eminent domain powers to construct or extend those facilities
19
(Appendix #13). The Trail Court was wrong on the law and seems to have forgotten the
evidence put in front of it, which the court admitted.
The Union Pacific Railroad Company is the owner of the raised railroad bed, drainage
channel, and culvert for drainage purposes for the benefit of the public, which has caused
damage to Plaintiff’s property (RT Vol. 4 Pg. 970). The raised railroad bed was constructed
in 1894 and the culvert running underneath it was extended in 1940 (RT Vol. 5 Pg. 1250).
UPRR has also maintained and operated its raised railroad track and drainage system in such
a manner that it promotes surface discharge water to pool and flood Plaintiff’s property (RT
Vol. 5 Pgs. 1276, 1249). These actions by UPRR were a substantial and significant cause
of the damages currently suffered by Plaintiff (RT Vol. 5 Pgs. 1245-1246).
The Trial Court apparently did not believe the Railroad could be liable for inverse
condemnation, ignoring evidence and legal authorities otherwise.
Breidert v. Southern Pacific Company (1964) 61 Cal.2d 659 stands for the principle
of law that a railroad can be held liable in an inverse condemnation action. This case
involved an inverse condemnation action against the Southern Pacific Company railroad for
the closure of a railroad crossing which Plaintiff alleged damaged an important property
right. Breidert at 662. The appeal in front of the Supreme Court was the granting of a
general demurrer in which the railroad defendant claimed it was not a proper party to the
inverse condemnation action. The Supreme Court held that the “defendant railroad
erroneously urges that it is not a proper party defendant to the present action. Since
20
defendant railroad was an active joint participant in closing the crossing, it is a proper party
to the present litigation.” Id. This was confirmed two years later by the California Superior
Court, stating: “It is true that in Breidert v. Southern Pac. Co., supra, 61 Cal.2d 659, 662, we
held that a railroad can be liable in inverse condemnation when it acts alongside the State to
cause an interest in land to be condemned.” City of Manhattan Beach v. Superior Court
(1996) 13 Cal.4th 232, 266; Justice Mosk dissenting opinion.
UPRR has claimed in that in order for the railroad to be liable for inverse
condemnation it must have obtained the property on which a public improvement is located
by way of eminent domain (Appendix #2). This is not a correct statement of the law. A
railroad can still be held liable in inverse condemnation if it acquires the property in fee.
Breidert v. Southern Pacific Company (1969) 272 Cal.App2d 398, 401.
More significantly, Plaintiff submitted evidence, which was admitted, that UPRR
obtained the property by condemnation in 1891 (Exhibit 1904; RT Vol. 6 Pgs. 1608-1611).
This fact was ignored by the Trial Court in its ruling.
The evidence admitted shows that UPRR does not have a maintenance plan for this
improvement (RT Vol. 4 Pgs. 965-972). It further shows UPRR extended the culvert in 1940
and allowed its tenant to expand on its property and alter the outfall without proper
precautions (RT Vol. 5 Pg. 1250). Even in strict liability cases situations that do not involve
flood control, negligent omissions may create inverse liability. McMahan’s of Santa Monica
v. City of Santa Monica (1983) 146 Cal.App.3d 693, 696 (failure to replace water mains
21
known to have limited life). UPRR has failed to properly maintain and control the drainage
system under its railroad, which benefits the public at large at Plaintiff’s expense. This
callous disregard for neighboring property owners subjects UPRR to inverse condemnation
liability.
3. County of San Luis Obispo Liability
The Trial Court failed to hold the County of San Luis Obispo liable for inverse
condemnation because of a perceived lack of a cause-and-effect relationship between the
County’s conduct and Plaintiff’s damages. (Appendix #13)
The evidence and uncontroverted expert opinion testimony shows the County of San
Luis Obispo is liable for inverse condemnation since its storm water drainage system collects
and carries stormwater to, through, and from the culvert in question as part of its “drainage
system” (RT Vol. 2 Pg. 367). The County’s impermeable system of streets, curbs, gutters,
and sidewalks reduce the infiltration rate of stormwater in the watershed and funnels
extraordinary and unnatural amounts of stormwater toward Plaintiff’s property and the
undersized culvert (RT Vol. 5 Pgs. 1245, RT Vol. 6 Pg. 1519-1520). The County’s drainage
system has further contributed to the dirt and debris which has reduced the storage volume
in the drainage channel and near the inlet of the culvert (RT Vol. 5 Pgs. 1520-1521). Even
though the County uses the drainage channel and culvert to dispose of its storm water it has
not properly undertaken any type of maintenance plan to insure its storm water does not harm
private property (RT Vol. 2 Pg. 391).
22
The Trial Court failed to rule on an additional principal theory of inverse
condemnation briefed and pled by Plaintiff. Approval and acceptance (sometimes by mere
use) of a private improvement, such as a street or drainage system, may subject the public
entity to liability to a third party whose property is damaged. Approval and acceptance by
the public agency may be implied by official acts of dominion or control of the property and
by continued use of the improvement by that agency for many years. Sheffet v. County of Los
Angeles (1970) 3 Cal.App.3rd 720, 735; Marin v. City of San Rafael (1980) 111 Cal.App.3d
591, 596, disapproved on other grounds by Bunch v. Coachella Valley Water Dist. (1997)
15 Cal.4th 432, but recently cited with approval on the issues at hand in Paterno v. State
(2003) 113 Cal.App.4th 998, 1029.
Substantial participation includes the approval of plans and acceptance of streets by
a Defendant, although a private contractor actually planned and constructed the streets, if a
necessary consequence of the tract design, creation, and improvement of the streets was an
increased burden on drainage system affecting Plaintiff’s property. Sheffet v. County of Los
Angeles (1970) 3 Cal.App.3d 720, 734-735. Substantial participation also includes the
approval of subdivision maps and drainage system plans if a Defendant failed to appreciate
the probability that the drainage system, as conceived and while functioning, would damage
Plaintiff’s property. Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345, 362-363.
Privately owned drainage systems permitted by a public entity and operating as part
of a public drainage system can subject a public entity to inverse condemnation, either
23
explicitly or by continued use of the drainage system over time. See Marin v. San Rafael
(1980) 111 Cal.App.3d 591; Frustuck v. City of Fairfax, supra; Steiger v. City of San Diego
(1958) 163 Cal.App.2d 110. Use of the land (for a public purpose) over a reasonable period
of time constitutes acceptance, without any formal action in relation thereto by governmental
authority. McKinney v Ruderman (1962) 203 Cal.App.2d 109, 115.
The County’s Glenn Priddy testified that the County’s collection of gutters, street and
drainage courses was a “drainage system” (RT Vol. 2 Pg. 367). This system includes the 24"
culvert, POVE junction box and pad, through which all water from the drainage above
Plaintiff’s property rushes. This Defendant’s use of the channel and culvert to drain their
surface water away from their public uses is an acceptance of the public improvement, which
subjects them to inverse condemnation liability since this improvement has damaged
Plaintiff’s property. Ignored by the Trial Court was the County’s direct approval of POVE’s
plans and direction to POVE concerning the most controversial part of the drainage outfall,
the junction box, its 90E turn and the retention pond’s construction and design (RT Vol.5
Pgs. 1257-1264). (Exhibits 1874, 1875) This puts the facts squarely on line with Marin v.
San Rafael, supra. The Trial Court completely overlooks this theory of recovery and does
not discuss or respond to the unrefuted evidence of the County’s admitted ownership of and
involvement in the “drainage system” at issue.
///
///
24
4. OCSD Liability
The Trial Court held that the Plaintiff failed to prove that OCSD’s conduct had a
“substantial cause-and-effect relationship” to Plaintiff’s property damage, especially given
the likelihood that “other forces along produced the injury.” (Appendix #13) The Trial Court
does not indicate what those “other forces” are.
Plaintiff proved that OCSD has extensively used and controlled the drainage channel
which leads to the culvert (RT Vol. 2 Pgs. 383-403). OCSD has been discharging well water
from their Discharge Water Well #8 into the channel and culvert, which has been identified
as a major contributing factor to the flooding (RT Vol. 5 Pgs. 1272-1273). Moreover,
uncontroverted expert testimony opined that the pipe trapped debris, helping to clog 24" pipe
(RT Vol. 5 Pg. 1269). OCSD official Phil Davis testified to haphazard maintenance of the
channel and weed abatement of the immediate surrounding area on several occasions (RT
Vol. 2 Pgs. 387-403, RT Vol. 6 Pgs. 1552-1553). OCSD’s use and maintenance contributed
to the overall decrease in the storage volume at the inlet, which is also another substantial
factor is causing the flooding (RT Vol. 6 Pg. 1545). This subjects OCSD to inverse
condemnation liability under the undisputed facts admitted at trial.
5. CalTrans Liability
The Trial Court held that there was no casual connection between the conduct by the
State of California on Plaintiff’s damages. (Appendix #13)
25
Plaintiff proved that CalTrans owns the first 4 feet of the drainage channel connecting
Highway One to the culvert (RT Vol. 4 Pg. 911). It has exerted control and dominion of the
drainage channel (RT Vol. 4 Pgs. 921-925). It uses the drainage channel and culvert to drain
their surface water from Highway One in this watershed (RT Vol. 4 Pgs. 917 - 922). Among
other actions, Caltrans has twice performed an asphalt overlay on Highway One as it travels
in front of Plaintiff’s property, which overlay has reduced the storage volume in the drainage
basin, altered the drainage channel inlet. CalTrans removed a protective retaining wall near
the drainage channel, causing large amounts of silt sediment to reach the culvert (RT Vol.
6 Pgs. 1521-1526, 1548). CalTrans has performed several acts of haphazard maintenance
in the drainage channel and on Highway One, such as bulldozing a channel and shoveling
mud, sediment, and eucalyptus debris into the channel (RT Vol. 4 Pgs. 912-917; Exhibits
1466 - 1467; Exhibits 1513 - 1519), pursuant to a virtually non-existent, negligently drawn
maintenance plan (RT Vol. 6 Pgs. 1555, 1563-1564). CalTrans is liable for inverse
condemnation for their actions in the drainage channel, the construction of Highway One and
their negligent (non-existent) maintenance plan for the channel. A public body may be liable
for flood damage to private property caused by steepening a road grade or paving a road,
resulting in less absorption and more runoff of water. Newman v. City of Alhambra (1918)
179 Cal. 42; Andrew Jergens Co. v. City of Los Angeles (1951) 103 Cal.App.2d 232, 229.
CalTrans created and contributed to a drainage basin on Highway One. It cannot now deny
26
its impact on neighbors (expanding this basin) as anything but a taking since this public
improvement is functioning as designed and intended.
D. The Directed Judgment Pursuant to Code of Civil Procedure § 631.8 is Not
Substantiated by the Record
After Plaintiff’s case-in-chief all four remaining Defendants moved the Court for a
Motion for Judgment. The Court entertained argument and supplemental briefing before
granting the Defendants’ motion. The Court disregarded Plaintiff’s uncontroverted expert
witness opinion, percipient witnesses, and adverse witness testimony, substituting its own
“expert” opinion. The only Exhibit submitted by the Defendants was Exhibit 579. Plaintiff’s
expert opinion was not controverted (nor even cross-examined). A fact trier normally may
not ignore testimony that is neither impeached nor contradicted: “It is the general rule that
the ‘uncontradicted testimony of a witness to a particular fact may not be disregarded, but
should be accepted as proof of the fact’.” Joseph v. Drew (1950) 36 Cal.2d 575, 579.
The standard of review of a judgment and its underlying findings entered pursuant to
§ 631.8 is the same as a judgment granted after a trial in which evidence was produced by
both sides. San Diego Metropolitan Transit Develop. Bd. v. Handlery Hotel, Inc. (1999) 73
Cal.App.4th 517, 528. Therefore, a judgment rendered under § 631.8 is reviewed under the
usual “substantial evidence” standard. Charles C. Chapman Bldg. Co. v. California Mart
(1969) 2 Cal.App.3d 846, 853. Plaintiff presented overwhelming evidence of the causes and
effects of the flooding of Plaintiff’s property. This included over 500 photographs of the
27
flooding and surrounding property (Exhibits 1000 - 1665), a video of the flooding condition
(Exhibit 1816), a video of the OCSD Well #8 operating in a dry condition (Exhibit 1816),
several hundred documents showing the dominion and control of each Defendant in relation
to the drainage facilities which cause the flooding, the testimony of several percipient and
adverse witness, and the testimony of Plaintiff’s expert, Keith Crowe. As this Motion was
granted after Plaintiff’s case-in-chief, there was no substantial conflicting or contradictory
evidence submitted by the Defendants which could support the ruling granting Defendant’s
Motion for Judgment on the First Phase for Inverse Condemnation Liability. The Trial Court
simply substituted its “expert” opinion for that of Plaintiff’s expert.
E. The Granting of Defendants' Motion for Judgment on the Pleadings Deprived
Plaintiff of his Right of Petition
The Trial Court found that Plaintiff’s cause of action for inverse condemnation
accrued sometime before May 2, 2003 (Appendix #13). This ruling should not have
prevented Plaintiff from bringing his remaining causes of action in the Second Phase of this
litigation, as the statute of limitations are completely different, and the First Phase did not
address important non-inverse liability issues, such as negligent maintenance by UPRR.
1. Plaintiff’s Remaining Causes of Action Differ from Inverse Condemnation
The accrual date for Plaintiff’s remaining causes of action for nuisance, negligence,
dangerous condition of public property and trespass differ from the accrual date for inverse
condemnation since there is a repetitive and continuous flooding condition at Plaintiff’s
28
property. Plaintiff’s expert, Keith Crowe, testified that Defendants’ continued negligent or
non-maintenance of the drainage system as well as negligent or non-weed abatement
practices continued to increase the severity and frequency of flooding at Plaintiff’s property
(RT Vol. 6 Pg. 1568). The conditions are in no way static in this drainage basin, and actions
by these Defendant’s continue to harm, interfere, and damage Plaintiff. As such they are
actionable under the remaining non-inverse condemnation causes of action.
Defendants conceded that the standards for causation for inverse condemnation are
different from tort causation (Appendix 17, Page 5). In all the remaining causes of action,
Plaintiff must prove that “the defendant’s conduct was a substantial factor in causing
Plaintiff’s harm.” See CACI 400, 1100, 2000, and 2001. In a non-inverse condemnation
multiple party, multiple concurrent causes case, substantial factor has been defined as
follows:
“[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 another person, condition, or event
was also a substantial factor in causing [plaintiff’s] harm.”
See CACI 431. This standard of proof differs from causation for inverse
Condemnation. Therefore, Judge Tangeman’s ruling in the First Phase does not bar Plaintiff
from proving his causation case for negligence, nuisance, trespass, and dangerous condition
of public property in Phase Two. This distinction is not adequately addressed by Judge
Estrada-Mullaney.
29
It is error to deprive Plaintiff the chance to prove negligence or other bifurcated
claims, as the causation principles are far more liberal for Plaintiff’s remaining causes of
action.
2. The Flooding of Plaintiff’s Property is a Continuing Nuisance
Judge Estrada-Mullaney misconstrued Judge Tangeman’s decision on inverse
condemnation liability and its effect on Phase Two of this bifurcated trial. Judge
Tangeman’s ruling is not collateral estoppel for the Plaintiff’s remaining causes of action
since these causes of action were pled based on the allegations and testimony regarding
repetitious and continuous nature of the flooding at Plaintiff’s property, whereas Inverse
Condemnation law sets a fixed date for accrual of the statute of limitations.
The Plaintiff testified that his property has flooded at least twelve (12) times since
2004 (Exhibit 1867; RT Vol. 5 Pgs. 1210-1211). Each event, it is alleged, is caused by
inadequate, negligent, or non-existent maintenance, among other factors. That lack of
maintenance resulted in flooding, according to Plaintiff’s expert. Each year’s maintenance
failure sets a new accrual time for the remaining causes of action. The flooding of Plaintiff’s
property is, therefore, a continuing nuisance and trespass. Upon each separate and individual
flood event a new cause of action accrues which supports Plaintiff’s current causes of action
for nuisance and trespass against the remaining Defendants. Phillips v. City of Pasadena
(1945) 27 Cal.2d 104, 107-108. This is true even if the original action is barred by the statute
of limitations. Id. Each time Plaintiff’s property floods, a new cause of action for private
30
nuisance is created. A nuisance is continuing if it may be discontinued at any time and is an
ongoing or repeated disturbance. Baker v. Burbank-Glendale-Pasadena Airport Authority
(1985) 29 Cal.3d 862, 869. The continuing nature of a nuisance refers to the continuing
damage caused by the offensive condition, not to the acts causing the offensive condition to
occur. Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1147.
Similarly, Plaintiff’s claim for continuing trespass is not barred from proceeding in
this second phase of the trial. The application of the statute of limitations for trespass is the
same as for nuisance, dependent on whether the trespass is continuing or permanent.
Spaulding v. Cameron (1952) 38 Cal.2d 265, 268. The test of the permanency of a trespass
or nuisance is whether the trespass or nuisance can be discontinued or abated. The theory
of continuing trespass is sanctioned by the Restatement (Second) of Torts. Mangini v.
Aerojet-General Corp, supra, at 1148. As with nuisance, the continuing nature of these
floods creates a new accrual date for trespass every time the property floods.
Similarly, Plaintiff’s final two causes of action for negligence and dangerous
condition of public property are also not time barred by Judge Tangeman’s ruling. Each
flood at Plaintiff’s property is caused by different negligent factors by these Defendants;
most notably the negligent lack of maintenance or a maintenance plan, the negligent
performance of maintenance, and the haphazard weed abatement in the drainage basin. The
repetitious nature of Plaintiff’s damages creates repeating causes of action for negligence and
dangerous condition of public property upon each flooding event.
31
Judge Estrada-Mullaney cites Lee v. Los Angeles County Metropolitan Transportation
Authority (2003) 107 Cal.App.4th 848, for the principle that since Plaintiff’s cause of action
for inverse condemnation is time barred, then Plaintiff’s remaining causes of action are also
time barred. This is an incorrect statement of the law and her cite is actually quite helpful
to supporting Plaintiff’s position. In Lee, the Court actually found that the plaintiff had
adequately alleged a continuous and repeated course of conduct causing damages to her
property which had not stabilized at the time plaintiff’s complaint was filed and, therefore,
plaintiff’s causes of action had not yet accrued and were not time barred. Lee at 858.
Similarly, the repetitive nature of the flooding at Plaintiff’s property in this litigation is
continuous, and not barred by the initial accrual or the original flooding date finding made
by Judge Tangeman.
F. The Trial Court Improperly Allowed Evidence into the Record During the First
Phase which was not Produced During Discovery, Substantially Prejudicing
Plaintiff
The Trial Court admitted and relied upon Defense Exhibit 579, a County record
previously undisclosed and introduced by Co-Defendant UPRR, over objection of counsel
(RT Vol. 5 Pgs. 1226-1228). Defense Exhibit 579 was an unsolicited questionnaire from the
County of San Luis Obispo in support of its drainage study published in 2004 (Exhibit 579).
This evidence was admitted over Plaintiff’s objection to the withholding of the evidence
during the discovery process, as the first time it was shown to Plaintiff was at trial. Plaintiff
32
had specifically requested this type of evidence in discovery, and it was not produced by any
party (RT Vol. 6 Pgs. 1614-1618). After the ruling was entered on August 5, 2008,
Defendant County of San Luis Obispo, sent Plaintiff its entire set of responses to the
Drainage Study questionnaires (Appendix 15). These responses clearly show the County of
San Luis Obispo’s “received” stamp in the upper right hand corner. These documents, as
well as the Plaintiff’s own written response, were never produced in discovery and should
not have been allowed to be used in this trial. The responses listed numerous statements and
witnesses not previously disclosed or produced, even though Plaintiff requested such
information from UPRR and the County during discovery (Appendix #14).
The Trial Court has the power to exclude documents at trial that have been concealed
or that counsel failed to produce in response to discovery requests that would cause “unfair
surprise” at trial. Deeter v. Angus (1986) 179 Cal.App.3d 241, 255; Vallbona v. Springer
(1996) 43 Cal.App.4th 1525, 1547-1548; Pate v. Channel Lumber Co. (1997) 51 Cal.App.4th
1447, 1455. Documents concealed during discovery may be excluded at trial even where
there was no prior order compelling production. The propounding party would have no
reason to seek such an order where discovery responses falsely state such documents do not
exist. Pate v. Channel Lumber Co., supra, 51 Cal.App.4th at 1456.
Plaintiff sent the following two document requests to Defendant County of San Luis
Obispo (Appendix 15):
1. True and correct copies of all writings, documents, statements, reports,
recordings or other items that deal with, document, refer to or
33
memorialize all statements or utterances made by or on behalf of this
plaintiff concerning any of the allegations contained in plaintiff’s
Complaint.
2. True and correct copies of all writings, documents, statements, reports,
recordings or other items that deal with, document, refer to or
memorialize any statements, comments or writings by any witness or
any individual who purports to be a witness or to have any information
relative to the incidents referred to in plaintiff’s Complaint.
These requests clearly ask for the type of document which was presented at trial and
relied upon by the Trial Court. This was an abuse of the Discovery Act and the document
at issue, and any testimony related to it, should have been excluded from the trial.
After trial, Defendant County of San Luis Obispo sent Plaintiff all the responses to
the questionnaires it had in its possession. (Appendix 14). These were attached to the Exhibit
Package to Declaration of John W. Belsher re: Motion for New Trial. (Appendix #15). These
documents show the “received” stamp by the County of San Luis Obispo and disclose
numerous statements by other potential witnesses and the statements of Plaintiff. Defendant
County of San Luis Obispo further redacted the names on these responses to prevent Plaintiff
from identifying possible new witnesses to the flooding conditions near Plaintiff’s property,
another abuse of the Discovery Act. These witnesses could possibly have new information
relevant to the litigation, and could have been used by Plaintiff in his “offer of proof” to
show the flooding of Plaintiff’s property did not begin until the year 2004.
In terms of fairness, Defendants cannot be allowed to violate the Discovery Act and
secrete documents by just handing them to a co-defendant at trial, when that document was
34
never produced in response to Plaintiff’s discovery requests. The sanction should have been
exclusion. Its admission constituted unfair surprise and was extremely prejudicial, as
selectively and incompletely submitted and argued by UPRR. Its admission was reversible
error, as it led directly to the Court’s ruling of dismissal on statute of limitation grounds.
VII.
CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that this Court reverse Judge
Tangeman’s ruling for Judgment on the First Phase of the trial for Inverse Condemnation
Liability, reverse Judge Estrada-Mullaney’s ruling for Judgment on the Pleadings for the
Second Phase of the trial, and order a re-trial of this case and the issue presented therein.
Dated: October ___, 2009 BELSHER & BECKER
By: ______________________
JOHN W. BELSHER
Attorneys for Appellant WILLIAM
BOOKOUT dba OCEANO NURSERY
`
35
CERTIFICATE OF WORD COUNT
(Cal. Rules of Court, rule 14(c)(1))
The text of this brief consists of 8,609 words as counted by the Corel WordPerfect
version X3 word-processing program used to generate the brief.
Dated: October ___, 2009 BELSHER & BECKER
By: ______________________
JOHN W. BELSHER
Attorneys for Plaintiff/Appellant
WILLIAM BOOKOUT dba OCEANO
NURSERY
36
PROOF OF SERVICE
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN LUIS OBISPO )
I, ANGELA M. BREZDEN, declare as follows:
I am a citizen of the United States and an employee in the County of San Luis Obispo.
On the date set forth below, I caused the document(s) described below to be served:
APPELLANT’S OPENING BRIEF
on the interested parties in this action addressed as follows:
SEE ATTACHED SERVICE LIST
[X ] BY UNITED STATES MAIL: I am readily familiar with the firm’s practice of
collection and processing documents for mailing. Under that practice, the envelopes
are sealed and, with postage thereon fully prepaid, deposited with the United States
Postal Service on that same day at San Luis Obispo, California, in the ordinary course
of business. I am aware that, on motion of the party served, service is presumed
invalid if the postal cancellation date or postage meter date is more than one day after
the date of deposit for mailing in this affidavit.
[ ] BY HAND DELIVERY: I personally delivered such envelope to the offices of the
addressee, following ordinary business practices.
[ ] BY FACSIMILE: I caused the above-described document(s) to be sent via facsimile
transmission to the offices of the addressee, following ordinary business practices.
[ ] BY OVERNIGHT COURIER: I caused such document(s) to be delivered by
overnight mail to the offices of the addressee by placing it for collection by Federal
Express following ordinary business practices, to wit, that package(s) will either be
picked up from the firm by the courier service, and/or delivered to the courier’s office.
[ ] BY E-MAIL: On the above-date at _____a.m., I electronically served the
above-described document(s) to the offices of the above.
37
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed and served on October __, 2009 at San Luis Obispo, California.
_______________________________
ANGELA M. BREZDEN
38
BOOKOUT et al. v. OCEANO COMMUNITY SERVICES DISTRICT
APPEAL CASE NO. B214906
PARTY LIST
Adam Daner, Esq. (SBN 171886)
Daner Law Firm
5855 Capistrano Ave., Suite G
Atascadero, CA 93422
Tel: 805-464-5003
Fax: 805-464-5004
Email: unlisted
Attorney for Respondent OCEANO
COMMUNITY SERVICES DISTRICT
Thomas A. Cregger, Esq. (SBN 124402)
Randolph, Cregger & Chalfant, LLP
1030 G. Street
Sacramento, CA 95814
Tel: 916-443-4443
Fax: 916-443-2124
Email: tac@randolphlaw.net
Attorney for Respondent UNION
PACIFIC RAILROAD COMPANY
David Sullivan, Esq. (SBN 142881)
Derek VanHoften, Esq. (SBN 226880)
P.O. Box 7444
San Francisco, CA 94120-7444
Tel: 415-904-5700
Fax: 415-904-2333
Email: unlisted
Attorney for Respondent STATE OF
CALIFORNIA DEPT. OF
TRANSPORTATION
Molly Thurmond, Esq. (SBN 104973)
Hall, Hieatt & Connely
1319 Marsh Street, Second Floor
San Luis Obispo, CA 93401
Tel: 805-544-3830
Fax: 805-544-5329
Email: unlisted
Attorney for COUNTY OF SAN LUIS
OBISPO
Supreme Court of California
303 Second Street
South Tower, Eighth Floor
San Francisco, California 94107
4 copies
39
Judge Estrada-Mullaney
San Luis Obispo Superior Court
1055 Monterey St., Dept. 3
San Luis Obispo, CA 93408
Judge Martin Tangeman
San Luis Obispo Superior Court
1055 Monterey St., Dept. 3
San Luis Obispo, CA 93408
Caltrans And County Of San Luis Obispo using State HWY 1 for Storm Water Retention.
Dear Friends News_Media_Knowledge.pdf State Highway 1 in Oceano should not be flooding any time it rains!
When our California Constitutional Rights are taken away from us and our property is taken for a dangerous public use, as Caltrans raising a State Highway and then shoveling and Grading Contaminated Storm Water Debris into a Storm Water Drainage Channel, it is our duty to make the public aware; especially when their public safety has been endangered! Please View Caltrans and County using State Hwy 1 for a storm water retention. The San Luis Obispo Superior Court has stated August 5, 2008 regarding the flooding of State Highway 1 and Oceano Nursery: "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance"
Superior Court Judge Martin J. Tangeman in his August 5, 2008 Trial Court decision regarding Caltrans Maintenance stated: "Mr. Fry testified that any work undertaken by Cal Trans employees in the channel to help clear the channel were most likely undertaken solely as a "good neighbor" practice by a "conscientious employee." Judge Tangeman Exhibits presented to him during trial showing Caltrans endangering public Safety!...
In the video above and photos Caltrans is caught shoveling debris into this storm water drainage channel as photo exhibit #1488 below shows Caltrans Grading debris into this channel while the Caltrans Maintenance Supervisors stands by as seen in the photo above!
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" Judge Tangeman Exhibits presented to him during trial showing Caltrans endangering public Safety!... In this pdf file evidence, it is seen that the flooding of State Highway 1 Could have been Abated! The Trial Court erred in thinking that Union operated the OCSD Well # 8. The Trial Court erred as seen in this evidence Caltrans had a history of maintaining the drainage channel. The Trial Court erred as Caltrans is seen Shoveling and Grading Debris into the Oceano Community's Storm Water Drainage Channel!
As seen in Caltrans and County documents, there are reasons why Caltrans and the County of San Luis Obispo have chose not to fix drainage problems on State Highway 1 which would cause flooding west of State Highway 1 (Baughman Property) View these Caltrans Documents presented to the Trial Court!Caltrans_intentionaly allowing State Highway 1 to flood instead of west side of Oceano Documents.pdf
The Public can help by asking Questions of Senator.Maldonado@sen.ca.gov and Assemblymember.blakeslee@asm.ca.gov Can Caltrans Legally preform this type of maintenance (Shoveling debris into a storm water drainage channel) as seen above and below by a Caltrans Supervisor and his employees?
Can a San Luis Obispo Superior Court Judge ignore the Evidence presented to him? Can the Oceano Community Service District use a Storm Water Drainage Channel and preform no maintenance knowing that their PVC pipe in this channel is dredging 4500 gallons of well water and debris through this drainage system daily?
View this pdf file County trying to make a Deal ignoring public Safety of County residents .pdf See September 25, 1987 letter to the County from Caltrans and then the July 18, 2006 and February 6, 2007 letters from the County of San Luis Obispo Attorney Clay Hall! This drainage problem could have been abated with Caltrans, County, OCSD and Railroad knowledge of a fix and potential problems going back to the mid 80's!
Please view the local News Media Knowledge with Senator.Maldonado and Assembly member Sam Blakeslee Knowledge as presented to them in this PDF file Senator Maldonado is now aware of Caltrans actions from his response May 12, 2009 calling this a very difficult situation. The public can help by asking questions of our news media as to why State Highway 1 is being used to Store Contaminated storm water!
Assemblyman Blakeslee is taking action see his letter April 30, 2009 Assemblyman_Sam_Blakeslee. pdf... View California_Coastal_Commission. Questions and knowledge pd... View Senator Abel_Maldonado. pdf knowledge.
United States Senator Barbara Boxer and Congresswoman Lois Capps are now both aware of Caltrans and the County of San Luis Obispo Actions as they both have recently acknowledged documents presented to them.
Governor Arnold Schwarzenegger is aware of Caltrans Actions. See his-- _Response to State HWY 1 Flooding in Oceano... Caltrans from documents found in discovery had stated September 15, 1987 Quote: “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)" Governor Arnold Schwarzenegger was probably not informed of this when he suggested contacting Caltrans!
Trial exhibits presented to Judge Tangeman showing no Stabilization from drainage changes in inverse condemnation with the Caltrans Maintenance Supervisor and his employee's shoveling debris into the Oceano Community's Storm Water Drainage Channel! Trial Exhibits seen by Judge Tangeman Exhibits 1516, 1513, 1514, 1468, 1469, 1470 PDF...notice dates on photos and that Caltrans is not removing debris from State Highway 1! Notice flooding of East side of State Highway 1 from Caltrans overlay as seen in Caltrans photos June 13, 2002. Exhibits 1466 and 1467 show Caltrans in 2000 doing proper maintenance to this drainage channel used by Caltrans. Exhibits 1464 and 1465 show Caltrans raising State highway 1 in 2000 before they removed their retaining wall in 2003. Appeal Brief reasons and facts showing Inverse Condemnation Caltrans, County, OCSD Railroad pdf Exhibit # 1488 of Caltrans grading storm water debris into this drainage channel while Caltrans continues to shovel debris into this storm water drainage channel Exhibit #1517.
The Trial Court erred regarding Inverse Condemnation and "date of Stabilization" with the evidence above. The San Luis Obispo Court has ignored our California Constitution (Property Rights Article I Section 19) The Trial Court Stated "Finally,the Court does not find a factual basis to impose liability based upon allegedly increasing elevations of Highway 1 resulting from overlay projects. First, the evidence was mixed at best as to weather the absolute elevation of Highway 1 changed in a substantial way as a result of the "remove and replace" projects." Caltrans had previously addressed their drainage at this location and were aware of their actions as seen in Exhibit # 579 "Overlay From Caltrans in 2001 on HWY 1." At Trial an in exhibits drainage changes by Caltrans are seen in 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008 showing no Stabilization! The County of San Luis Obispo withheld part of their knowledge of these drainage changes from discovery Exhibit # 579 states: "Caltrans raising Highway 1 at 13th Street (summer 2002) Contributing to elevated flooding (inability for water to cross roadway) on northeast side of Highway 1 (at Oceano Nursery)"County withholding evidence from discovery until December 2, 2008 of flooding before Hwy 1 Baughman
Caltrans and County of San Luis Obispo actions affecting our public safety in California needs to become National News. The public can bring this to the news medias attention as this storm water travels to the Pacific Ocean through the Baughman property as evidence withheld by the County of San Luis Obispo showed with Caltrans and the County having Tort Liability concerns west of State Highway 1 if they were to correct drainage problems as seen in their September 25, 1987 letter!
In the videos above viewed by the Trial Court Exhibit # 1816, this Caltrans Maintenance Supervisor is caught January 4, 2007 shoveling Contaminated Storm Water debris into the Oceano Community's Storm Water Drainage Channel. This type of maintenance is a substantial cause of flooding of State Hwy 1! This Caltrans Supervisor had engineered Concrete bags at the Railroads 24 inch pipe in December 2002 when the OCSD made drainage changes as seen in the video below of OCSD flooding State Highway 1 from their drainage changes!Judge Tangeman Exhibits presented to him during trial showing Caltrans endangering public Safety!...
This maintenance practice by Caltrans is seen in the videos and photos; November 26, 2008, April 2, 2008, December 19, 2007, January 4, 2007, March 22, 2005. Caltrans Claims this is normal for Caltrans. View Caltrans January 10, 2005 OCSD meeting with Caltrans talking about drainage. See Caltrans Response to the Regional Water Quality Control Board January 12, 2009 Caltrans-D-5 Pete_Riegelhuth January 12, 2009 Statement mailto... Caltrans Pete Riegelhuth Stated to the RWQCB "it was determined that Department roadway maintenance operations at this location are in compliance with requirements set forth in Department Stormwater Quality Guidance Manuals."
Caltrans shoveling debris into the Oceano Community's Storm Water Drainage channel as recently as November 26, 2008. These photos show the Caltrans 4-Foot Right A Way with Caltrans ownership of the Eucylptus trees.
In this video below the RWQCB has allowed the Oceano Community Service District to dredge 4500 gallons of Well water daily through this storm water drainage system from their December 2002 drainage changes.
The San Luis Obispo Superior Court has stated after viewing the evidence. "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance"
I do not agree with the San Luis Obispo Superior Courts decisions as you can see from the documents presented to the trial Court. Please help by asking questions of Caltrans, County OCSD and Railroads Negligence through the news media. I am appealing the courts decision. The Appeal of this decision will become case law regarding our constitution. Bookout v. State of California inwhich we will find out if Caltrans, County, OCSD and Railroads drainage changes affecting public health and safety along with taking the public's and business property is legal? According to the California Constitution, Article I, Section 19. “Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner.”
View the video below of the Oceano Community Service District Use of this Storm Water Drainage Channel, then remember the quote above by the San Luis Obispo Superior Court "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance"
The Trial Court in their quote "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" Erred in ignoring P. 55 of the July 10, 2008 trial transcript with Oceano Community Service District requesting of the County of San Luis Obispo to change the drainage system used by the County, Caltrans and Railroad Exhibit # 1756 The Oceano Community Service District Letter to The County of San Luis Obispo and Southern Pacific Railroad April 21, 1983 stated in Quotes "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."Caltrans and County using State Hwy 1 for a storm water retention basin Exhibit #1756 OCSD Prescriptive Easment."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. The District is therefore notifying all those agencies that may be involved in the channel's maintenance of its possible impending use and the degree to which it may be used."
The Trial Court erred when they stated "The "Date of Stabilization" approach does not apply in this case. The evidence showed that the last improvements made to the drainage systems were constructed by Pismo Oceano Vegetable Exchange ("POVE") in the late 1970s." This Drainage change/construction below was done by OCSD and Caltrans in December 2002. OCSD has stated that they discharge 4500 Gallons of their well water out of this pipe daily. Notice the debris in front of this pipe! OCSD has testified that they do not maintain this drainage channel!
Regional Water Quality Control Board Questions affecting California residents Health and Safety to the Pacific Ocean that need to be answered pdf The Public can help by seeing that the RWQCB answer the remaining questions of Harvey Packard" Hpackard@waterboards.ca.gov Roger Briggs" Rbriggs@waterboards.ca.gov in the PDF file above. The OCSD Well # 8 Pipe appears to have been permitted by the RWQCB? The News Media and Public needs to find out how the above use is legal and permitted by the Regional Water Quality Control Board?
The RWQCB has recieved a response from Caltrans regarding their workers plowing and shoveling flood-related debris from Highway 1 into a roadside ditch as the Regional Water Quality Control Board states below.Trial Exhibits seen by Judge Tangeman PDF...
"John, Pete,As we spoke about earlier today John, here is the blog that Oceanobusinessman Bill Bookout has shared with Water Board staff and otheragencies: http://www.oceanonurseryflooding.blogspot.com/
This blog includes photos and videos of Caltrans maintenance workersplowing and shoveling flood-related debris from Highway 1 into a roadsideditch. Mr. Bookout says the Caltrans maintenance supervisor is David Fry(sp?). Mr. Bookout asserts that this activity is causing a nearby culvert beneath the railroad tracks to become clogged with debris, which exacerbates flooding of his property.
Caltrans' NPDES stormwater permit prohibits the discharge of wastes orwastewater from road sweeping vehicles or from other maintenance orconstruction activities to any surface waters or to any storm drain leadingto surface water bodies. This maintenance activity appears to violate thisprohibition. Please direct your maintenance staff to immediately discontinue this activity. Any flood-related debris should be scooped up and properly disposed of in an appropriate location. If we receive any further complaints regarding this activity, we may find Caltrans inviolation of its NPDES requirements and pursue formal enforcement action.Thank you for your attention to this matter.--Matt ThompsonRegional Water Quality Control BoardCentral Coast Region895 Aerovista Place, Suite 101San Luis Obispo, California 93401V (805) 549-3159F (805) 788-3572"
The Regional Water Quality Control Board was able to understand Caltrans maintenance Staff illegal actions as seen by the trial court. Unfortunatly, the trial court has stated. "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" Caltrans D-5 Pete Riegelhtuth NPDES Coordinator January 12, 2009 E-Mail Statement!...
The Trial Court erred as Caltrans' NPDES stormwater permit prohibits the discharge of wastes or wastewater from road sweeping vehicles or from other maintenance or construction activities to any surface waters or to any storm drain leading to surface water bodies. The Trial Court viewed the Videos and Photos of Caltrans actions! See Judge Tangeman Exhibits presented to him during trial showing Caltrans endangering public Safety!...
As in Arreola v. County of Monterey County trying to make a Deal ignoring public Safety of County residents .pdf County of San Luis Obispo knowing of theirs and Caltrans responsibilities for their drianage changes! This is a question for our State Representatives and news media to make public as seen in these documents.
The Trial Court erred as seen in the County's February 6, 2007 letter above. “As to the “fix” the defendants did agree that it does not make sense to resolve the plaintiff’s damage claim unless the problem has bee rectified. Otherwise, subsequent flooding will cause subsequent litigation.” The County's Attorney's previously stated July 18, 2006 "It remains my position that the County has a Right to allow its water to flow downhill and it is the responsibility of the downhill property owners to dispose of that water in an appropriate fashion." See Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. As to government liability! The February 2, 2009 Trial Court decision has taken away this ability to stand up to Constitutional Rights in California!
This is Caltrans Response to the RWQCB that now affects all of California residents as seen in their September 15, 1987 quote above. "Due to past litigation, the Department is no longer responsible or allowedto maintain the channel located off of the Caltrans right of way. If youwould like further information about the drainage situation and themaintenance effort at this location, which has a history beyond what canbe detailed in an e-mail, please let me know so that I can arrange ameeting with Department staff familiar with the drainage challenges andrestrictions at this site.Respectfully,Pete RiegelhuthD-5 NPDES Coordinator"Office 805-549-3375Cell 805-305-7726Fax 805-542-4746"john_papathakis@dot.ca.gov Marissa Nishikawa" marissa nishikawa@dot.ca.gov Pete Riegelhuthpete_riegelhuth@dot.ca.gov
In Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. As cited to the Trial Court. “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.”Judge Tangeman Exhibits presented to him during trial showing Caltrans County and OCSD aware of the risk posed by their improvements Safety!...
The Question that needs to be asked of Caltrans through our State Representatives is why if this section of California State Highway 1 has a history of drainage challenges would Caltrans raise the State Highway a foot in December 2000 and then start grading and shoveling contaminated storm water debris into this community's storm water drainage channel as they were aware of the risk this would pose from what they thought was a public improvement?
The Trial Court erred in exhibit #1816 showing Caltrans shoveling storm water debris into the Oceano Community's Storm Water drainage Channel outside of Catrans 4 FT Right of way changing the date of Stabilization with Caltrans Maintenance changes. As stated by the Trial Court "Mr. Fry testified that any work undertaken by Cal Trans employees in the channel to help clear the channel were most likely undertaken solely as a "good neighbor" practice by a "conscientious employee." Exhibit #579 withheld from discovery shows photo Exhibits of Caltrans removing debris until 2002! See PDF of Exhibits.County withholding evidence from discovery until December 2, 2008 of flooding before Hwy 1 Baughman Read the Baughman Questionnaire of County Drainage
Questions asked of the Regional Water Quality Control Board unanswered by the RWQCB! Regional Water Quality Control Board actions affecting California residents Health and Safety to the Pacific Ocean pdf The public can help in asking these same questions of the Regional Water Qauality Control Board through the news media to see that these questions are answered. Notice Caltrans actions below and OCSD pipe in drainage channel damming debris.
Caltrans has stated to the RWQCB regarding the videos and photos seen above and below. "Department personnel maintain the entrance to the drainage channel byshoveling sediment out of the channel and onto the banks. When the rainevent is over, Department staff return to remove the shoveled material."Caltrans-D-5 Pete_Riegelhuth January 12, 2009 Statement mailto...
Notice the two Caltrans workers April 2, 2008 above outside of Caltrans Right-Away shoveling storm water debris into the Oceano Community's Storm Water Drainage Channel! The State of California Caltrans District 5 regards this as proper maintenance according to the RWQCB response by Caltrans! Notice the next two security videos December 19, 2007 at 3am in the morning and November 26, 2008. Caltrans is not seen removing debris from their actions as stated by Caltrans-D-5-Pete Riegelhulth!
The Trial Court erred in Caltrans maintenance plan exhibit #100 as Caltrans actions goes against Caltrans Stormwater Manuals and Handbooks Caltrans has stated to the RWQCB. "it was determined that Department roadway maintenance operations at this location are in compliance with requirements set forth in Department Stormwater Quality Guidance Manuals."
Caltrans_intentionaly allowing State Highway 1 to flood instead of west side of Oceano Documents.pdf View this video of OCSD and Caltrans drainage changes in 2002.
Caltrans now after Judge Tangeman's August 5, 2008 trial decision have a legal right in California to shovel debris into this and other drainage systems as seen in the video above November 26, 2008 !Caltrans-D-5 Pete Riegelhuth January 12, 2009 Statement the RWQCB Harvey Packard/Roger Briggs mailto...
The Trial Court has erred as Caltrans, County, OCSD and Railroads continuous and repeated actions have not stabilized as seen in the video above November 26, 2008 after the video of their same actions April 4, 2008. Caltrans is seen again shoveling contaminated storm water debris outside of their four foot right of way into the Railroads storm water drainage channel. Lee v. Los Angelas County Metropolitan Transportation Authority (2003) as cited by the Trial Court February 2, 2009 (Notice of Entry Of Judgement)
The Trial Court erred having commented on this video below of the Oceano Community Service District use of this storm water drainage channel for other uses then storm water. Notice Caltrans debris at inlet! Both Caltrans and OCSD are seen here to be substantial contributors along with the Railroad for these drainage obsticles.
The County of San Luis Obispo Attorney's withheld evidence until December 2, 2008 after trial from POVE, Caltrans, OCSD, Union Pacific Railroad and us showing the County of San Luis Obispo drainage invlovement through the Baughman property. This withholding of evidence would have shown Judge Tangeman why Caltrans choose to raise State Highway 1 in December 2000 and why Caltrans and the County have been using State Highway 1 as a retention basin.County withholding evidence from discovery of flooding before Hwy 1 Baughman
The Trial Court Erred in ignoring P. 55 of the July 10, 2008 trial transcript with OCSD requesting of the County of San Luis Obispo to change the drainage system used by the County, Caltrans and Railroad Exhibit # 1756 The Oceano Community Service District Letter to The County of San Luis Obispo and Southern Pacific Railroad April 21, 1983 stated in Quotes "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."Caltrans and County using State Hwy 1 for a storm water retention basin Exhibit #1756 OCSD Prescriptive Easment.
"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. The District is therefore notifying all those agencies that may be involved in the channel's maintenance of its possible impending use and the degree to which it may be used."
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" (In ruling on a motion for judgment, a trial court must decide questions of credibility, must weigh the evidence and must make findings of fact. Liengenfelter v County of Fresno (2007) 154 Cal.App.4th 198.)
The Trial Court erred in blaming POVE for construction in the late 1970's as Judge Tangeman recieved Exhibit #1756 showing OCSD construction in the Drainage channel. Judge Tangeman stated regarding the letter to the County of San Luis Obispo quoted above. "So there's no objection. Seventeen Fifty Six will be recieved. Is this one page or three pages? Mr. Belsher: Three pages, your Honor. The Court: All Right. It's Recieved.Caltrans and County using State Hwy 1 for a storm water retention basin.
Judge Martin J. Tangeman Stated in his August 5, 2008 Decision regarding this video and photo evidence above P11. "In the case of OCSD, the evidence largely consisted of the construction of the drainage outfall from Well No. 8 In the vicinity of the culvert. While there was evidence of substantial amounts of water being discharged from well # 8, there was an absence of evidence that such discharges occurred contemporaneously with heavy rains and flooding problems." (Leaf, supra, 104 Cal.App.3d at pp. 408-409.)
This video above was taken showing State Highway 1 Flooding in a non-rain event January 13, 2007 caused by OCSD Well #8 construction in the Railroads drainage channel! Remember the Courts Statement "The Date of stabilization" approach does not apply in this case. The evidence showed that the last improvements made to the drainage systems were constructed by Pismo Oceano Vegetable Exchange ("POVE") in the late 1970s."
The Trial Court erred with their Acknowledgment of OCSD construction in the Storm water drainage channel and the Substantial amounts of water being discharged daily into this storm water drainage system from this OCSD construction . This shows no date of Stabilization with the OCSD drainage changes since 2001 as viewed in OCSD daily logs presented as evidence to Judge Tangeman Exhibit s #1768.
The trial Court erred on p.82 of the July 10, 2008 trial when exhibit # 1758 was entered into evidence OCSD September 11, 1985 meeting minutes showing OCSD again changing the drainage channel. They state: "To take the discharge line which runs underneath Highway 1 and use it to discharge water near the Railroad Station. GM Hill stated that this would require obtaining easements from the Depot Association and Southern Pacific."
The Trial Court then Erred in Exhibit # 1332 P. 84 of a Caltrans photo dated 1-88 G.M.R. showing the drainage channel in 1988 before OCSD made fruther drainage changes that would block and dredge debris into the Railroads storm water drainage system. The Trial Court admitted into evidence Exhibits # 1331 and 1332 p. 86 as stated by the Court. "Thirteen Thirty-One And 1332 Will Be Recieved. Overruled."
The Trial Court erred when Judge Martin J. Tangeman States P.11: "Plaintiff also alleged that OCSD should be liable because its outfall pipe acted as a dam to capture debris in times of flooding, and/or that at times of discharge from its outfall pipe, debris may have been pushed into the culvert." "In each of these cases, the Court finds that the evidence is too speculative to support liability for inverse condemnation. No studies were undertaken or evidence provided showing the effect, if any, of either of these factors during times of flooding." (Leaf, supra, 104 Cal.App.3d at pp. 408-409.)
The Trial Court erred in ignoring expert testomony "OCSD well pipe adding silt and debris during well operation" as OCSD has testified to discharging 4500 gallons of well water daily into this storm water drainage system!
The Trial Court erred as the public entity’s were unable disprove the identified six substantial factors which have caused this flooding condition to exist. These factors are as presented to the trial court:(1) Blocking the natural drainage way with a pipe too small for theconditions, (2) OCSD Well #8 Discharge Pipe adding silt and debris during normal well operation, (3) Pipe capacity compromised by poorly designed extension, (4) Upstream watershed conditions worsened, (5) Decrease in storage volume at inlet, and (6) Lack of maintenance.These six factors were present during all twelve flooding events and form thebasis for expert opinion.If plaintiff identifies the substantial factors which cause PLAINTIFF’S SUPPLEMENTAL TRIAL BRIEF RE: INVERSE CONDEMNATION the injury, the burden shifts to the public entity to produce evidence that would show that other forces alone produced the injury. California State Automobile Assn. v City of Palo Alto (2006) 138 Cal.App.4th 474, 483. The defendants in this case have not!
The Trial Court erred p. 12 in their August 5, 2008 decision regarding Skoumas v. City of Orinda 2008 DJDAR 12042, quoting from Belair v. Riverside County Flood Control District (1988) 47 Cal.3d 550,559 "Plaintiff has failed to prove that OCSD's conduct has a "substantial cause-and effect relationship" to Plaintiff's property damage, especially given the likelhood that "other forces alone produced the injury." The Trial Courts should have paid attention to 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 drain pipe 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.
The Trial Court erred in ignoring Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. As cited to the Trial Court. “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.
The Trial Court erred P. 13 as then stated: "Plaintiff has also failed to show the required connection between County's conduct and plaintiff's damages." Neither County, Caltrans, Railroad or OCSD have been unable to dispute the six substantial factors which have caused the flooding condition to exist!
The Trial Court erred with the sworn testimony of the Oceano Community Service District July 10, 2008 with the exhibits 1341-1343 of OCSD flooding State Highway 1 in their testimony Question P. 86-87 "The Photograph in 1341, is that a fairly -- is that an example of the discharging operation? Answer. YES Question Now, The pipe discharges at the culvert. There is a drainage channel I'm sure you're aware of that runs back to Highway 1? Anwswer. YES.
view studies presented to Court Additional_Calculations.pdf see liability Supplemental_Expert Calculations.pdf see Recent Developments in Inverse Condemnation Law
Judge Martin J. Tangeman P.6 in his August 5, 2008 decision erred with his theory of Date of Stabilization as seen above in his Statements. He admits OCSD construction in the drainage channel since the late 1970s. This goes against his written statement: "The "Date of Stabilization" approach does not apply in this case. The evidence showed that the last improvements made to the drainage system were constructed by Pismo Oceano Vegetable Exchange ("POVE") in the late 1970s. Fruther, the evidence demonstrated that the flooding problem was relatively consistent and static for several years prior to the date that Plaintiff purchased his property."
The Trial Court has unfairly blamed POVE saying that there has been no changes (Improvements) to this drainage system since the late 1970s???? County approved building permits pertaining to the retention pond used by Caltrans, County, Railroad and OCSD were presented and accepted by Judge Tangeman Exhibit # 1875! The County of San luis Obispo States: "12/13/84 Jak Floor Drain system drainage to sump + then to retention pond approved by Fred Norton, must have approval of this system by Health Dept."
The Trial Court erred P. 134 POVE acknowledged the County and the Regional Water Quality Control Board requiring drainage changes to the retention pond used by Caltrans, OCSD, Railroad and County as drainage change permits showed in 1984 presented to the trial court! The Trial Court erred P. 129 July 10, 2008 in Exhibit # 1776 May 24, 1985 involving County, Caltrans, POVE, RWQCB and the use of State Highway drainage mixed with produce drainage through Railroad property with Caltrans existing easments of use of this drainage system and their responsibility for drainage.
These are quotes from Exhibits presented to the Trial Court exhibit # 1785 May 14, 1987 This is after the County had required drainage improvement changes in 1985 on Railroad property for the retention pond used by the County, Caltrans and OCSD after issueing building permits to POVE!“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.”Cal_Trans_Documents.pdf
OCSD at trial July 10, 2008 acknowledged that this type of discharge runs back to State Highway 1! View Photo Exhibit #1342 presented to Judge Tangeman of OCSD Drainage Improvements, changes and"obstacles" dredging 4500 Gallons of their Well #8 Water and debris into the Railroads Storm Water Drainage channel daily. This is a substantial cause of how debris gets packed into the Railroads storm water drainage system. The County Health Department has approved this according to OCSD P. 85 July 10, 2008 testimony. See Exhibit Evidence_presented_to_Judge Tangeman showing the effects of OCSD pipe during storms# 1278, 1337, 1338.1342..
Judge Tangeman erred in his August 5, 2008 decision regarding Cal Trans as he States: "There Was Insufficent Evidence To Hold The State of California Liable For Inverse Condemnation" The Court then States. "Nor was there substantial evidence that debris accumulated within the State's right-of-way (as opposed to the debris accumulated on private property outside the boundaries of the right-of -way) contributed in any meaningful way to the problems in the operation of the drainage facilities on Railroad and POVE properties." SeeTrial Exhibits seen by Judge Tangeman...
Judge Tangeman decision has given Caltrans a legal right to continue to grade and shovel debris into stormwater drainage channels in California affecting public safety as this November 26, 2008 video of Caltrans actions after Judge Tangeman's August 5, 2008 decision shows! The February 2, 2009 Trial Court decision backs up Judge Tangemans decision allowing Caltrans to endanger public Safety!
Employee Negligence & Vicarious Liability (Cal. Govt. Code 815.2)According to Government Code Section 815.2, a public entity may be held vicariously liable for the act or omission of an employee acting within the scope of employment, notwithstanding provisions of immunity.
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" "The situation has been stable and static such that all of plaintiff's remaining causes of action accrued prior to mid 2002 and therefore are barred by the applicable statute of limitations. (CCP &338)" Supplemental Expert Calculations presented to Judge Tangeman.pdf
The Trial Court erred in their belief that Union's operation of Well No. 8. This well is owned by and operated daily by the Oceano Community Service District! The County's Responsibility runs from above this drainage channel to the Pacific Ocean!
The Trial Court States: "Similar to his rulings as to the County and State, Judge Tangeman concluded Plaintiff's evidence was too speculative to support liability against OCSD for its drainage outfall from Well No. 8 or its improvement of real property. As to Union, Judge Tangeman determined the evidence failed to support a basis for liability for improvements made by POVE and found that the improvements were constructed without invoking powers of eminent domain. Judge Tangeman did , however, allude to Union's negligent omission to enlarge the culvert. Union is not entitled to judgment on the pleadings based upon causation issue preclusion. Nevertheless, the statute of limitations applies equally to all Defendents."
March 17, 2009 we have filled an appeal to the February 2, 2009 Judgement decision Supplemental Appeal Brief showing inverse Condemnation actions by Caltrans, County, OCSD and Railroad v3.pdf
See evidence presented to Judge tangeman...See drainage changes by Caltrans in December 2000 to present Exhibit Evidence_presented_to_Judge Tangeman showing the effects of OCSD Well # 8 pipe blocking accumulated debris during storms that could be abated with maintenance # 1278, 1337, 1338.1342.. This evidence presented to judge Tangeman shows no date of Stabilization with OCSD construction in the drainage channel, mixed with caltrans drainage changes since December 2000!
The Trial Court erred as to OCSD Improvements/Construction in the Storm Water Drainage Channel as this was invoking powers of eminent domain beginning in 1983 with OCSD maintaining this system! This is seen in photo exhibit # 579 UPRR withheld from discovery!
The Trial Court erred regarding exhibit # 1730 OCSD Prescriptive Easements over private property P. 10 in their decision statement "There was no evidence offered that the Railroad objected to any uses that were made of its property."The Railroad had warned OCSD on April 29, 1983 of the intended use of this channel. “ It would appear that the channel mentioned in your letter was probably created to handle storm water runoff, and not the purpose to which you now intend to utilize it.” See Photo Exhibit # 579 UPRR
Judge Teresa Estrada Mullaney-in her January 5, 2009 decision cited-Skoumbas v. City of Orinda "Substantial Cause-and effect relationship" and is enough for government liability. 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 drain pipe 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.Caltrans, County Tort Liability Concerns Wests side of Oceano Baughman Property... Judge Tangemen cited in his decision Exhibits 1278, 1337, and 1338 showing OCSD dredging and damming debris with their Prescriptive Easement of this drainage channel from their construction and improvements in this drainage channel! Evidence_Exhibits_presented_to_Judge Tangeman of OCSD pipe in Railroad inlet daming and blocking debris!...
The County of San Luis Obispo withheld substantial evidence from discovery regarding inverse condemnation from Caltrans drainage maintenance changes showing no date of stabilization from Caltrans historic drainage channel maintenance in 2002 and prior. Caltrans after this documented maintenance in 2002 began shoveling and grading debis into this drainage system!
Caltrans stated July 28, 2008. "and no evidence was offered (by any qualified and credible testomony) to show that this pavement increased the height of the road bed." The Trial Court erred in their desision stating "First the evidence was mixed at best as to weather the absolute elevation of Highway 1 changed in a substantial way as a result of the "remove and replace" projects." Here the Trial Court admits the substantial evidence, that there has been no date of Stabilization thus making the State of California (Caltrans) liable for inverse condemnation! County withholding evidence from discovery of flooding before Hwy 1 Baughman The County of San Luis Obispo testimony July 10, 2008 P.40 shows their knowledge of channel maintenance as seen in evidence withheld from discovery of Caltrans maintaining this channel! UPRR photo Exhibit #579 Shows Caltrans accrual date raising Highway 1 changing the date of stabilization as they continued to make drainage changes to 2006. Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848.
It is unfortunate that I have had to be a whistle blower with local governments actions! The fact that my California Constitutional rights under Article I, Section 19 have been violated and public safety has been put in danger is not acceptable!
The County of San Luis Obispo making drainage changes downstream and then collecting $30,000.00 per year rental income from where this storm water was once stored is unacceptable! See County of San luis Obispo board of Supervisors knowledge in the 2004 drainage study.
By bringing this to the public's attention I have lost my business (Oceano Nursery) and I am now in the process of having to close and sale off my inventory at my other business Plumerias Garden and gifts to fund my appeal filed March 17, 2009. I am faced with $222,316.88 in government legal fees for a small drainage problem in the early eighties that only would have cost the County, Caltrans, OCSD, Railroad and POVE $43,295.00 to fix at the time!
This story with the video and photo evidence above and below, needs to be heard in the National News Media on 60 Minutes, 20/20, ABC News Night line, CBS, Fox News etc.
I ask the public's help in bringing this to all California Residents attention through the News Media as I appeal the trial courts August 5, 2008 decision! Appeal_Lyles-JAMES_ARREOLA_et_al...
I would like to thank Dave Congalton and his guests for the first radio interview seen below Dave Congalton on News Talk 920 KVEC: The Public Continues to Turn ...04/02/2009 interview at 4pm Bill Bookout from the Oceano Nursery has fought Cal Trans and the Oceano CSD for years over flooding problems on his property. We'll hear his story. 04/02/2009
Complete April 8, 2009 OCSD Legal Staff Discussion of Appeal Filed March 17, 2009 1:00:01 e As OCSD Borard Director Mary Lucey brings up the appeal filled March 17, 2009
The News Media will need to understand the drainage changes west of State Highway 1 made by the State and the County of San Luis Obispo. View Caltrans_1953_Aerial_Photo_Knowledge of Hwy Drainage and Baughman Property!... of Caltrans and County drainage changes to this storm water drainage channel and the Pacific Ocean! The States Highway drainage when this problem is finally corrected will have to have the Storm water stored on County property west of State Highway 1 in order not to pollute the Pacific Ocean or flood properties West of State Highway 1 as has been Caltrans and the County of San Luis Obispo Concerns! This may have an impact on the Oceano Airport becoming wetlands and possibly having to change the State Parks Dunes entrenance south of its current location for environmental concerns! View
The video above from an OCSD Meeting January 10, 2005 Exhibit # 1804 explains the Oceano Community's drainage system and why State Highway 1 is flooding when it rains! Oceano residents in this video talk about the following photos of the OCSD white pipe being illegal with OCSD Stating: "that issue is being addressed"! OCSD States that they have no authority to put a pipe on someone elses property? OCSD talks about Paso Robles and thirteenth Streets flooding at the same time State Highway 1 Floods. OCSD talks about their observing the clearing out eucalyptus debris from the ditch on Railroad property and that it stops the flooding. OCSD talks about the benefits of no flooding by pressure washing out the culvert with the sand and debris in it along with OCSD Staff recommending putting a grate in front of the Railroad pipe!
The County Of San Luis Obispo January 10, 2005 talks about their recent requirements for curb gutter and sidewalk and problems this is causing. They mention the cost of Storing their water coming off of County streets on the west side of the State Highway 1 from a drainage study and that being about a Million Dollars. They mention the cost of the drainage study they had recently done. The County talks about their Liability. The County talks about regulations they had made just two or three years prior and then takes some blame, they then blame Cal Trans, the Railroad and the vegetable Exchange?
The County states in their Drainage Study "2.1.4.6" "Caltrans The California Department of Transportation (Caltrans) operates drainage facilities that are associated with the State Highway System. Highway 1 experiences flooding near 13th and 19th Street. Caltrans currently clears the drainage channel between 13th Street and the railroad." CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF
Cal Trans States January 10, 2005 that by law they will not take the lead for a flood control problem. They state if they fix this drainage problem they would be responsible for this system from beginning to end, meaning to the Ocean? Cal Trans, talks about their elevation changes in December 2000 to the State Highway and correcting these changes in 2003 along with changes that need to be made to a Sidewalk they had recently installed. They State that they have communicated with the Railroad and that the Railroad would be willing to participate in a drainage solution. (This Leaves the only party that does not want to fix the unsafe and unsanitary Storm Water Drainage problem involving County Airport property west of highway 1 to be San Luis Obispo County? See Exhibit Quotes Below 1785,1795, 1786, 1788, 1789,1796 Please view this Oceano Community's Service District meeting video January 10, 2005. The First speaker is the County of San Luis Obispo pay close attention to the County's statements followed by Cal Trans. OCSD_FLOOD_MEETING_JANUARY_10__2...
View Caltrans_Documents showing why they are flooding Hwy 1. pdf
In this security video Caltrans is caught shoveling and then grading debris into the Oceano Communitys Storm Water drainage channel at 3am as seen by the trial Court!
The San Luis Obispo Superior Court erred when they mislabeled this substantial evidence of causation of flooding with these-33 photo Trial Exhibits seen by Judge Tangeman... Showing no Date Of Stabilization of the Oceano Storm Water drainage channel since Caltrans drainage changes in December 2000 and 2002. These photo documents stated "Photos Relating To O.C.S.D. Involvement" when they should of said Caltrans Negligence in raising a State Highway as seen in exhibit # 1470 and then #1516 of Caltrans supervision Shoveling and Grading Storm Water Debris into a Community's Storm Water Drainage Channel outside of their Right of Away! Exhibits 1463- 1516 Show Caltrans raising State Highway 1 beginning in 2000 while maintaining the Storm Water drainage channel removing debris at this time and then Grading and shoveling Debris into this channel since! This action by Caltrans since December 2000 violates Article I, Section 19 Of the California Constitution as this Evidence shows intentional negligence and is a Substantial Cause of the flooding of my property and State Highway 1!
The Trial Court erred regarding Substantial Factors/CausationJudge Tangeman States Regarding Caltrans: “Nor was there Substantial evidence that debris accumulated within the States right- of-way (as opposed to the debris accumulated on private property outside the boundaries of the right-of-way) contributed in any meaningful way to the problems in the operation of the drainage facilities on Railroad and POVE properties.”1) Caltrans Raised State Highway 1 in December 2000 Exhibit # 1462, 1463, 1464, 1465, Caltrans photos Exhibit # 1468, 1469, 1470 of flooding east side of Highway2) Caltrans changing drainage maintenance of drainage channel as exhibits in 2000 showed Caltrans maintenance of this channel. Exhibit # 1466, 1467,3) Caltrans Railroad drainage inlet change December 2002 with Concrete bags installed at Railroad 24 inch pipe in channel outside of Caltrans Right-Away. Exhibit #1490, 14914) Caltrans Raising State highway 1 13th and Paso Robles Streets in 2003 Exhibit # 1471, 1472, 1473,1474,5) Caltrans 2003 Drainage Change in removing a retaining wall on their property without removing debris behind wall, then allowing debris to wash into State Highway and then be graded into drainage channel as Exhibits presented to the trial court showed Exhibit #1463, 1464, 1475, 1476, 1477,1478,1479,1480, 1481,1482,1483, 1484,1485,1486,1487, 14886) Caltrans retaining wall Debris left in hwy and graded to side of State Highway not removed by Caltrans allowed to wash into drainage channel Exhibit # 1475, 1476, 1478, 12/29/04 Exhibit # 1479, 1477 12/31/04 Exhibit # 1480,1481, 1/1/05 Exhibit # 1482, 1/3/05 Exhibit # 1483 1/7/09 Exhibit # 1484, 1485, 1486, 1487, 1488 3/22/2005 1530, 1531, 1535 1/26/2006 , 1533,1536 1/27/08 1527 1/26/08 1520 2/8/20077) Caltrans Raising State highway 1 in 2006 Exhibit #1498, 1500, 1501, 15021503, 1504,1505, 1506,1507,8) Caltrans shoveling debris into drainage channel 1/4/2007 Exhibit # 1516, 1517, 1518, 1519 of Caltrans supervisor shoveling debris into drainage channel. Exhibit 1513, 1514, 1515 of Caltrans employees shoveling debris into drainage channel9) Caltrans Shoveling Debris into drainage channel Exhibit # 154110) Caltrans four foot Right away Exhibit # 1520 1527, 1530, 1537,1538,1539, 1540, 1543, 1542, 1525Judge Tangeman States Regarding Oceano Community Service District:11) OCSD Drainage Change 2001, 2002 Exhibit # 1768 Phil Davis Log Entries to Railroad drainage channel and inlet.12) OCSD flushing debris from their property into drainage channel Exhibit # 1450 1/19/08 1541 6/7/0813) OCSD POVE Pond Maintenance Exhibit # 1433, 1434, 1447, 1440, 1442, 1443, 1436,1437, 1439, 1444 1/3/200514) OCSD maintenance of their PVC pipe in Drainage Channel Exhibit # 1425, 1426, 1427 1/7/0815) The Trial Court Erred with the July 10, 2008 Court Reporters Transcript regarding OCSD pipe being installed in 1985 Exhibit # 1758 As Caltrans Photos Exhibits # ?????? show P8216) The Trial Court Erred P. 83-88 when they herd testimony of discharge into the storm water drainage system by OCSD P. 84 no permission. P85 Permission from the County Health Department exhibits 1331 and 1332 admitted. 1336-1337-1338 admitted and seen by the court 1336-1343 OCSD is seen to maintain this channel as the Trial Court saw17) The Trial Court Erred P.96-1112 OCSD Maintaining pipe/drainage channel removing leaves and branches with the rest of the daily logs showing maintenance that did not exist prior to 2001!18) The Trial Court from the OCSD Testimony P11 and 12 Of their August 5, 2008 decision ignored the real culprits using the drainage channel by altering the purpose of this channel!19) The Trial Court erred with the minutes of Exhibit # 1764 p.110 July 10, 200820) The Trial Court Erred P 112 July 10, 2008 as they later admitted one Oceano Drainage Questionnaire showing the relevance of this exhibits from testimony by Caltrans!21) The Trial Court Erred in their July 10, 2008 Statement P. 7 “In addition, Mr. Davis testified that plaintiff had a history of complaining about flooding prior to December 20, 2002, when he met the plaintiff on site and cut the Oceano Community Services District (“OCSD)” drainage pipe in the vicinity of the culvert.” Documents withheld from discovery showed flooding concerns on Fountain Ave and Airpark involving Mr. Davis. P. 102 “might flood his property” P.103 July 10, 2008 Answer “It is in – I think Mr. Bookout thought that possibly the pipe going inside the culvert was restricting the flow.”22) The Trial Court Erred P7 in their August 5, 2008 in regards to Mr. Suttons Testimony as he was not employed by POVE in 2000. Mr. Sutton did not arrive in Oceano in 1996!23) The Trial Court Erred P. 8 regarding testimony of Mr. Brebes who retired from Caltrans in 2002. Exhibits1766 and 1767 that the court sustain show brebes involvement in flooding on Fountain Ave and Airpark. Documents withheld from discovery by the County of San Luis Obispo show Caltrans Raising the Highway with Brebes involved in this drainage change.Judge Tangeman States Regarding the County of San Luis Obispo “there was no showing of the County’s responsibility for designing or maintaining the drainage channel or drainage facilities immediately downstream from Plaintiff’s property.” He ignores drainage changes P20 July 10, Statements by County!
The Trial Court erred in their statement regarding Inverse Condemnation. “In addition, however, there is substantial evidence which contradicts Plaintiff’s late proffered explanation. For example, substantial evidence was introduced by Plaintiff that this flooding problem had existed at this location for decades, going back at least to the 1980s.” This information came from the County of San Luis Obispo Attorney Clay Hall as provided to him by the County of San Luis Obispo, as the County chose to withhold additional information from discovery provided December 2, 2008. View County trying to make a Deal ignoring public Safety of County residents .pdf
The Trial Court erred as stated by Clay Hall February 6, 2007 “As to the “fix” the defendants did agree that it does not make sense to resolve the plaintiff’s damage claim unless the problem has bee rectified. Otherwise, subsequent flooding will cause subsequent litigation.” The February 2, 2009 Trial Court decision has taken away this ability to stand up to Constitutional Rights in California!24) County Of San Luis Obispo Testimony P. 34 The Court: “The “Problem Area” Being Highway 1 And 13th And Paso Robles.” The Witness: The Problem – As Far as fixing the drainage on the lot, the – The problem was the impact of the fix on the downstream property owners, not that – not that something down there needed to be fixed in order to solve the problem upstream.”The Trial Court States P. 32 Yes. “And so why is flooding on Fountain Avenue relevant to this particular, given the witness’s answer that he’s not familiar with that issue?”Ms. Thurmond P. 33 “The Drainage problem, we haven’t even defined the drainage problem. Were getting hung up here. The problem is flooding of Bill Bookout’s property. The problem is not the overall Drainage problem in Oceano. We could go on for years on that.The Trial Court: “No, I understand. But I thought we had limited the questions to the Bookout Flooding problem.25) Exhibit # 1769 Oceano Drainage and Flood Control Study. This Study explains the County’s Responsibility down stream.26) Exhibit # 1769 shows County Changing of evidence Baughman property 2002 Community Drainage & Flood Control Study Questionnaire Withheld from discovery by County of San Luis Obispo. This Questionnaire was provided after trial and admitted into evidence.27) Exhibit # 1875 Construction Permit28) Exhibit # 1762 County Drainage Channel Behind Fountain Avenue next to Baughman Property Questionnaire withheld by County from Discovery!29) Exhibits #1766 and 1767 1770 Judge Tangeman “Sustain”--- County’s responsibility for designing or maintaining the drainage west of State Hwy 1!30) Exhibit # 1790 9/25/87 County’s responsibility for designing or maintaining the drainage West of State Highway 1!31) Exhibit 1783 County Knowledge per P. 15 County Testomony letter dated 7/86?32) Exhibit 1731 County Knowledge per P. 1733) The Trial Court Erred stating Plaintiff has failed to prove defendants have acquired a prescriptive easement Exhibit # 1756 July 10, 2008 Court reporters transcript P.55 By Mr. Belsher “Seventeen fifty six, the first letter is a letter to the San Luis Obispo County Flood Control District and it relates to discharges at the problem area.” The Court “ So now there’s no objection. Seventeen Fifty Six will be received. Is this one page of three Pages? Mr. Belsher “Three pages your Honor.” The Court All Right. It’s Received.” To the County, POVE and Railroad notice of use of drainage channel34) Exhibit 1787-1790 Caltrans Drainage responsibility for repair to drainage system proposal replacement of the drainage culvert.35) Exhibit 1805 Curb Gutter and sidewalk drainage changes U.S.H.A.36) Exhibit # 1874 Admitted P. 65 County Building permits 1875 construction permits37) P66 July 10, 2008 County attorney admits County drainage system leading to State Hwy 138) The Trial Court erred July 10, 2008 P.75-76-77 when they took Mr. Priddy as an expert at the POVE pond into consideration
The Trial Court erred in “Date of Stabilization” with admitting into evidence Exhibit #579 UPRR as this document was withheld from discovery by the County of San Luis Obispo showing Caltrans drainage changes in 2001 as stated: “HWY 1 not adequate drainage on HWY 1 under the train track and overlay from Caltrans in 2001 on HWY 1” This overlay drainage change by Caltrans was not mentioned at trial and is directly linked to exhibit #1789 September 15, 1987 Caltrans Stated: “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) Exhibit #1773-1774-1775-1777-1778-1779-1780-1781-1783-1784-1785-1786-1787-17881790-1791-1792-1793-1794-1795-1796-1797-1798and 1800 the OCSD meeting transcript testimony of Caltrans January 10, 2005The Trial Court erred in “Date of Stabilization” with admitting into evidence Exhibit #579 UPRR as this document show a train derailment at the drainage channel inlet pipe for Union Pacific. Engineers for all defendants have never brought the train derailment into evidence?The Trial Court erred in “Date of Stabilization” with admitting into evidence Exhibit #579 UPRR that had not previously been disclosed with other documents showing OCSD knowledge from one of their Previous OCSD directors Concerns of drainage as seen in Caltrans documents exhibit # 1789-1773-1774-1775-1777-1778-1779-1780-1781-1783-1784-1785-1786-1787-17881790-1791-1792-1793-1794-1795-1796-1797-1798and 1800 the OCSD meeting transcript testimony of Caltrans January 10, 2005 (Caltrans Tort Liability concers of Flooding the Baughman property)The Trial Court erred in “Date of Stabilization” with admitting into evidence Exhibit #579 UPRR as the other 400 + documents withheld from discovery that went with the County’s possession of this documents showed the County’s drainage path and changes to the Pacific Ocean with whiteness’s Flooding west of State Highway 1. Exhibits dealing with #579 west of State highway 1 involving the County of San Luis Obispo 1792-1793-1794 Caltrans Brebes-1795-1789-1790-1791-1796-1797-1798-1799-1801-1802-1803-1815-1816-1761-1762-1764-1765-1766 Sustained by the Court 1767 Sustained by the Court1768-1770Sustained by the Court1774-1775-1776-1777-1778-1779-17801783-1785-1786- 1875-1877-1879-1880-1881-1882-1883-1884-1885-(Leaf, supra, 104 Cal.App.3d at pp. 408-409.)
If any of the above dispute the statements or evidence in this blog; please do not hesitate in contacting me or the News Media! It is my intentions to see this problem fixed once and for all! It is unfortunate to see Caltrans actions in these video's affecting public safety. I can be reached at 1-805-773-2089
View the February 6, 2007 letter by the County's Attorney Clay Hall to the County of San Luis Obispo Insurance Company and the reasons why the County Caltrans and OCSD have chose not to abate their drainage changes seen below since December 2000! County_trying_to_make_a_Deal ignoring public Safety of County residents .pdf This makes all of the above personabley liable in any future accidents, injuries or flooding caused by their negligence and knowledge affecting public safety on State HWY 1 to the Pacific Ocean. Each should have fixed the problems that they had created without having to bring their actions to trial! View exhibits presented to Judge Tangeman of Caltrans and OCSD altering the drainage channel!...
Pay attention to Caltrans September 15, 1987 Department of Transportation Memorandum stating: “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.” County Documents withheld from discovery show Caltrans raising State HWY 1 in 2002! Judge Tangeman admitted this new evidence in after our trial however chose to ignore this evidence in his decision!
The County of San Luis Obispo Attorney's chose to withhold evidence from Judge Martin J. Tangeman which we received after trial July 30, 2008 and December 2, 2008 showing County knowledge of Caltrans raising State Highway 1 6-10 inches since December 2000 and 2002 as Caltrans had stated they 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. View this video below December 10, 2006 from Caltrans no longer mainaining the Drainage channel since December 2002! Notice the dangers to public safety becouse Caltrans does not want to flood the Baughman property as seen in the documents withheld from discovery by the County admitted into evidence after trial!
From the Court Reporter Transcript July 10, 2008 of OCSD. Question Do you have any maintenance plan for the channel or the culvert with respect to debris? Answer. NO, WE DO NOT.
Question-Was that debris removed from the site or, as you said earlier, disposed at the top of the bank? Answer. I believe they Just threw it out with a pitch fork, on the bank.
There was no evidence presented by any of the defendents of State Highway 1 having any flooding problem other then the early 80's before Caltrans raised the State Highway in 2000-2002-along with OCSD, County and Caltrans making drainage changes in 2001 and 2002! OCSD testified "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" Court of Appeal, Third District, California. Peter PATERNO et al ...
From the Court reporter transcript Thursday July 10, 2008 The San Luis Obispo Court heard the following testimony placing the OCSD pipe directly in the Railroads Storm Water Drainage Channel and not in the Vicinity as the Court had stated in their August 5, 2008 decision! P. 83 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 – P.86 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 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 did you oversee an extension of the pipe into the culvert that’s depicted there? Answer. yes. P. 85 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.State__Caltrans_County__RWQCB_Drainage changes since 1985...
In the Court case cited by Judge Teresa Estrada -Mullaney and not Judge Tangeman Skoumbas v. City of Orinda this Diversion of surface waters into a natural watercourse creates liability. With discharge into a private pipe as seen above shows OCSD Liability. As this pipe has been in this channel over five years OCSD has obtained a prescriptive easement with Caltrans knowledge. View exhibit evidence presented to Judge Tangeman...showing no "Date of Stabilization" with Caltrans Grading and Shoveling debris into the Railroads storm water drainage channel and OCSD pipe blocking debris with their pipe in the Railroads inlet and drainage channel!
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 drain pipe 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.California’s Flood Liability
In Arreola v. County of Monterey (2002) Shows Caltrans, County and OCSD liability were all 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. --Caltrans_Conspiracy_with_County_...
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.The above drainage changes by our local government are un acceptable knowing the safety problems that they would be creating on State Highway 1. When the Caltrans photo above was taken in 1988. Caltrans had drainage concerns west of State Highway 1 on the Baughman property as seen in the documents that the County of San Luis Obispo chose to withhold from discovery until aftet trial and December 2, 2009 five months after our trial!Caltrans_with_County_of_San_Luis... See Lagoon Changes by State and County State__Caltrans_County__RWQCB__D... PDF]Law of Inverse Condemnation
By standing up for my Constitutional Rights Judge Tangeman has ignored the evidence presented to him at trial and immediately after trial.Trial Exhibits seen by Judge Tangeman... As punishment I have now received bills from our local government of a total of $222,316.68 Caltrans $122,050.42 The County of San Luis Obispo of $31,321.18 The Oceano Community Service District $45,257.87 And Union Pacific Railroad $23,778.21 Trial_Costs_endangering_public_f... Attached in this PDF file County_trying_to_make_a_Deal.pdf is a County July 18, 2006 letter blaming Caltrans for dropping the ball with a permanent fix of State Highway 1 Drainage that would have only cost as written to Glenn Priddy of the County on September 25, 1987 $43,295.00. From these Caltrans documents it shows Caltrans does not want to fix this minor flooding problem at the time because of flooding the Baughman property and the County of San Luis Obispo does not want to purchase property to store the Highway 1 Storm Water west of State Highway 1Cal_Trans_Documents.pdf (Welcome to America) State__Caltrans_County__RWQCB__D...When the San Luis Obispo Superior Court States February 2, 2009 "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" then it is time to make the public aware that their Constitutional Rights have been taken away in San Luis Obispo County and its time to make this a National News Story!
The Trial Court erred regarding "Belair, Locklin, and Bunch embody policies that recognize that inverse condemnation recovery be equitable, that support the importance of public works projects, and that ensure that the public entity be liable only for the proportionate amount of damage caused by its actions. A conclusion furthers these policies and also has the further laudable effect of encouraging public entities to engage in flood control efforts while discouraging them from making uncompensated use of private property." (Odello Brothers v. County of Monterey (1998) 63 Cal.App.4th 778, 792.)
As I begin my appeal on Inverse Condemnation and of the Courts February 2, 2009 Entry Of Judgment, January 5, 2009 decision regarding the remaining causes of action after Judge Martin J. Tangem's decision regarding inverse Condemnation August 5, 2008. The public needs to be aware and involved in a fix to our local Government's knowledge and prior actions affecting all of us to the Pacific Ocean. The following are Court documents that need to be shared with the public. This trial case explains government liabilityJAMES ARREOLA et al., Plaintiffs and Respondents, v.Judge_Estrada_Mullaney_January_5...
Exhibit # 1769 February 2004 San Luis Obispo County Oceano Drainage Flood Control StudyBookout_EstradaTentative_Ruling.... Blames POVE 100% even though Caltrans was caught shoveling and grading storm water debris into the Railroads storm water drainage channel, with OCSD using this channel to dredge 4500 gallons of well water daily? Trial Exhibits seen by Judge Tangeman... Showing Caltrans negligence!BOOKOUT_-_County_nonsuit_opp.pdf
Prescriptive easement notice by OCSD to County, POVE, And Railroad Exhibit #1758, 1730, 1729 to use drainage channel before OCSD installed their PVC pipe several Years latter! No Date of Stabilization with Caltrans Raising State Highway 1 in 2000, 2002 removing a retaining wall in 2003 grading and shoveling debris till November 26, 2008 and raising State Highway 1 again in 2006!BOOKOUT_-_Dec_of_Bookout_in_resp... October 16, 2008 County Discovery Letter!
Judge_Final_Ruling_by_County_Feb... Stating "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" Exhibit #1768 Phil Davis Log Entries. Exhibit # 1789 Caltrans Intentionally Raising State Highway 1 in December 2000 as the Had Stated in September 15, 1987 “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.” Exhibit # 1800 January 10, 2005 OCSD Transcript of Drainage meeting showing flooding could be Abated--Exhibit #1804 January 10, 2005 Video of OCSD meeting! Exhibit 1816 Excerpts from Flooding video footage!P.7 Mr. Sutton was not employed by POVE in 2000! In 1996 Mr. Sutton did not live in Oceano! Mr. Brebes as County Documents withheld from discovery show his involvement with flooding of Fountain Avenue! Mr. Brebes is in the County's photo Documents withheld from discovery raising State Highway 1 in December 2000! Mr. Davis was involved in Fountain Avenue Flooding documents withheld from Discovery by County of San Luis Obispo Baughman Property!
Evidence_Exhibits_presented_to_Judge Tangeman Baughman Property flooding Exhibit # 1278, 1337, 1338... Exhibits presented to the Court 1278 shows a train de-railment with the OCSD pipe directly in the Railroads drainage pipe inlet! Exhibit #1337 dated during a storm event in 2002 shows the OCSD pvc pipe directly in the Railroad drainage inlet pipe with a water line on the pipe showing Oceano Nursery not flooding. Exhibit # 1338 is immediatly after a rain event showing debris blocked at the OCSD PVC pipe with the OCSD pipe in the Railroads storm water pipe inlet!
Bookout_-_Public_Record_Request_... After trial for documents withheld from discovery by County of San Luis Obispo. Photos of Caltrans maintinings Storm water drainage channel in 2002 and OCSD Director Baughman Property flooding west of State Highway 1 as stated in questionnaire redacted by County his name and address. County changed his statement in their drainage survey from 2002!
Judge_Mullaney_Judgement_Februar... Blames POVE 100%. Under Causation the Skoumbas case, citing Locklin v. Lafayette (1994) 7 Cal. 4th 327, 367 added --leaving out Belair, Lockilin and Bunch embody policies that recognize inverse condemnation!
Trial_Brief.pdf That the County of San Luis Obispo, Oceano Community Services District, and/or State of California - Department of Transportation owned or controlled the property which caused the dangerous condition;Supplemental_Trial_Brief_v3.pdf SUPPLMENTAL_Exhibit_List_07_07_0... Exhibit # 1878 Keith Crowe Causation. 1884, July 25, 1999 Letter to Supervisor AchadjianAMENDED_MASTER_EXHIBIT_LIST__JDP...
Exhibits into evidence showing OCSD drainage changes since December 2002. OCSD obtaining their prescriptive Easment Exhibit # 1729, #1730, OCSD told Southern Pacific Railroad April 21, 1983 in a letter
"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. Research, 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 weather, in its present state of maintenance; it can adequately carry the quantity of water that will be discharged."
Exhibit #1758 easment, along with Caltrans Drainage changes Exhibits 1554-1622, 1766, 1767, February 5, 1999 drainage meeting Fred Brebes Exhibit #1767 County_Discovery_Abuse_Baughman
Evidence_Exhibits_presented_to_Judge Tangeman Baughman Property flooding Exhibit # 1278, 1337, 1338... Exhibits presented to the Court 1278 shows a train de-railment with the OCSD pipe directly in the Railroads drainage pipe inlet! Exhibit #1337 as seen below during a storm event in December 2002 shows the OCSD pvc pipe directly in the Railroad drainage inlet pipe with a water line on the pipe showing Oceano Nursery not flooding. Exhibit # 1338 below is immediatly after a rain event showing debris blocked at the OCSD PVC pipe with the OCSD pipe in the Railroads storm water pipe inlet! As Judge Tangeman has commented on both of these photos; he was aware in his decision that this OCSD pipe does act as a dam and is directly in the Railroads drainage inlet!
Judge Martin J. Tangeman in his August 5, 2008 decision stated: "Plaintiff also alleged that OCSD should be liable because its outfall pipe acted as a dam to capture debris in times of flooding, and/or that at times of discharge from its outfall pipe, debris may have been pushed into the culvert." "In each of these cases, the Court finds that the evidence is too speculative to support liability for inverse condemnation. No studies were undertaken or evidence provided showing the effect, if any, of either of these factors during times of flooding." These photos evidence were presented to the Trial Court showing the Nursery not flooding in December 2002 with this OCSD pipe damming debris! The Trial Court Stated this Pipe was not in this drainage channel is wrong as seen in these photos. View exhibit evidence presented to Judge tangeman... Recent Developments in Inverse Condemnation Law
The Trial Court saw and heard testimony from Fred Brebes that Caltrans maintained the Oceano Community's Storm water Drainage Channel; as Caltrans documents from Fred Brebes of Caltrans Dated November 30, 1988 Shows Caltrans doing maintenance in 1983, 1984, 1985, 1986 and 1987! This photo and records were provided to the San Luis Obispo Court showing Caltrans Maintenance which Caltrans has not done since December 2002 other then push, plow and grade debris into the Oceano Community Storm Water Drainage channel as seen in prior videos and photos above. Judge Tangeman Blames POVE for the County of San Luis Obispo issuing them building permits in the 1970's! Please view these documents showing Caltrans prior maintenance, communication with the County and OCSD and their drainage changes that show why Caltrans is storing Contaminated Storm Water on State Highway 1.Caltrans, County_... This photo was taken by Caltrans in 1988 before OCSD made their Drainage changes; blocking debris in this channel!
Please review these documents withheld from discovery by the County of San Luis Obispo until December 2, 2008County_Discovery_Abuse_Baughman_... This shows a conspiracy between the County and Caltrans to use State Highway 1 as a Storm Water retention basin rather then flooding the west side of Oceano and the Baughman property as these Caltrans Documents show. Cal_Trans_Documents.pdf Caltrans_with_County_of_San_Luis... OCSD_Attorney_Conflict_Phillips-... Hiring bookkeeper fianceeJudge_Final_Ruling_by_County_Feb... Decision February 2, 2009The San Luis Obispo Court January 5, 2009 cited see Skoumbas v. City of Orinda (2008) which referenced a case (Keys V. Romley) The August 5, 2008 court decision cited Skoumas v. City of Orinda 2008. The Skoumbas case explains Government Liability! The August 5, 2008 Skoumas case is not a trial case? Judge Tangeman Saw these Video's of Caltrans shoveling debris into this drainage system during a rain storm and then blames POVE 100% for the flooding of State Highway 1! [PDF]Recent Developments in Inverse Condemnation LawJudge Martin J. Tangeman States on Page 10 in his August 5, 2008 court decision regarding Caltrans Maintenance. "Mr. Fry testified that any work undertaken by Cal Trans employees in the channel to help clear the channel were most likely undertaken solely as a "good neighbor" practice by a "conscientious employee." Notice video of Mr. Fry above shoveling debris into channel! See Caltrans workers action in exhibits presented to Judge tangeman...See Cal_Trans_Documents.pdf See Documents withheld from DiscoveryCounty_Discovery_Abuse_Baughman_... See Judge Tangeman Knowledge of Caltrans shoveling and grading storm water debris into this drainage channelTrial Exhibits seen by Judge Tangeman...Caltrans from the first video above and actions below needs to be aware from California Government Code 725 "it is unlawful for any person to do any of the following Acts: ("b")Obstruct any natural water course so as to: "(1) Prevent, impede or restrict the natural flow of waters from any State Highway into and through such water course, unless other adequate and proper drainage is provided." "(2)"Cause waters to be impounded within any State Highway, to the damage of the Highway.""(3)" "Cause interference with, or damage or hazard to public travel." See Evidence of Exhibits presented to Judge Tangeman of Caltrans grading and shoveling storm water debris into the Oceano Community's Storm Water Drainage Channel!...Caltrans has stated in an email to the Regional Water Quality Control Board January 12, 2009 as seen at the very bottom of this document--"Due to past litigation, the Department is no longer responsible or allowed to maintain the channel located off of the Caltrans right of way." Caltrans prior to this Supervisor in 2002 had maintained this Storm Water Drainage Channel as seen in these Caltrans documents presented to the San Luis Obispo Court-Cal_Trans_Documents.pdf --Caltrans, County Actions... This is negligent drainage system maintenance affecting public safety! 1985_RWQCB_Drainage_Change.pdf 1985 County/RWQCB Drainage Change-Pond OCSD Pipe-County permitsRWQCB_Public_Safety_Questions_Fe... February 18, 2009 OCSD dredging debrisOn February 13 and 16th 2009 State Highway 1 my property and the Oceano Community has flooded again. Caltrans according to KCOY 12 News has made a statement. "We are working with the County of San Luis Obispo and the Oceano Community Service District to find a long term solution to this flooding issue." Again please view Caltrans PDF file Cal_Trans_Documents.pdf showing why Caltrans is storing Storm Water on State Highway 1. If Pove was responsible as Judge Tangeman has stated then Caltrans would be requiring them to fix this problem instead of working with the County and OCSD! Pismo Oceano Vegetable Exchange does not shovel, dredge or Grade Debris into this Storm Water Drainage Channel as seen above and below and presented evidence to this Court! In the Santa Maria Times it was stated "The judge also wrote she followed Tangeman’s ruling that POVE was primarily responsible for the damage to Bookout’s property in her decision to throw out the remaining claims." (Dangerous Condition , Nuisance And Trespass)This Drainage Maintenance change by OCSD November 30, 2001 December 20, 2002 can not be legal in a Storm water drainage Channel? The substantial cause and effects from this pipe is the cause of State Highway 1 Flooding today. Not POVE as Stated above by Judge Tangeman. The County, Caltrans and OCSD installation; knowledge and unreasonable use of this drainage system affects public safety on State Highway 1. This pipe was installed for local Government use since the County of San Luis Obispo and the Regional Water Quality Control Board required the POVE pond raised in 1985. Caltrans maintained this drainage channel from 1983-2002 as Caltrans and County documents attached show. I am asking for the Public help in seeing that this OCSD pipe is removed along with the sedimentation and debris that has been graded, shoveled and Dredged into this County, Caltrans, OCSD Drainage system by Caltrans and OCSD. The Regional Water Quality Control Board has apparently approved this Pipe in the Oceano Community's Storm Water Drainage channel endangering Public Safety on State Highway 1 from OCSD being allowed to dredge Storm Water Debris into the Railroads Storm Water Drainage Channel Mixed with 4500 Gallons of OCSD well Water daily. see OCSD (9/08) Letter to the RWQCB that misstates where this water is stored. Recent Developments in Inverse Condemnation LawSee Roger Briggs letterWater Board Comment Letter with Revision Tables (10/ 2/08) See RWQCB_Public_Safety_Questions_Fe... and their knowledge and permitting of this drainage system! See the RWQCB documents allowing POVE to use the County, Caltrans and OCSD Storm Water Retention pond to wash chemicals off of their produce to mix with Storm water that Caltrans and OCSD then pump out of this Storm Water Retention Pond to the Pacific Oceano as seen in videos below! 1985_RWQCB_Drainage_Change.pdfAt Trial July 10, 2008 Judge Tangeman Stated p. 34 to the County Of San Luis Obispo (Glenn Priddy) "The problem area" being Highway 1 and 13th and Paso Robles." The County of San Luis Obispo responded P.35. "The problem--As far as fixing the drainage on the lot, the --The problem was the impact of the Fix on the Downstream Property owners, not that--something down there needed to be fixed in order to solve the problem upstream." See Documents withheld from Discovery by County of San Luis Obispo County_Discovery_Abuse_Baughman_... See photos of the Baughman property flooding Highway 1 to the Baughman property!...
According to the Regional Water Quality Control Board (Sorrel Marks)January 5, 2009 this pipe in the Oceano Community's Storm Channel is legal and allowed by the RWQCB and has been waived by their board. "The Central Coast Water Board conditionally waives waste discharge requirements (permits) for well water discharges to ground, where the discharges do not pose significant threat to water quality. The waiver (Resolution No. R3-2008-0010) is available at the following link." Recent Developments in Inverse Condemnation LawThe Trial Court erred when Judge Martin J. Tangeman Stated: "There Was Insufficient Evidence To Hold Oceano Community Service District Liable For Inverse Condemnation" In the case of OCSD, the evidence largely consisted of the construction of the drainage outfall from Well #8 in the vicinity of the culvert." (see photo above) see Judge Tangeman Ruling August 5, 2008 The_Judges_Decision_not_looking_... Notice Drainage pipe Inlet as presented to Court video below! Recent Developments in Inverse Condemnation Law
You will notice from this video presented to the San Luis Obispo Court of OCSD Well # 8 dredging of debris and blockage from this Well during a non rain event; with the water backing up to State Highway 1. This drainage change by OCSD takes away any liability POVE might of ever had in Judge Tangeman's decision above. It is time for public Safety to see that this PVC pipe is removed from this Storm Water Drainage Channel! On February 17, 2009 during a rain event OCSD was videoed and photos taken of this pipe continuing to dredge debris into this storm water drainage system. Local media and the Regional Water Quality Control board were contacted and provided with Photos of this for the public knowledge!The Trial Court erred when the Court ignored the evidence of the Oceano Community's RR Storm Water Drainage Channel was never designed for this OCSD PVC pipe placed in the Railroads storm water drainage inlet pipe and then cut five feet short of the RR pipe in December 2002 with Caltrans installing Concrete sedimentation bags! The Railroad had warned OCSD on April 29, 1983 of the intended use of this channel. “ It would appear that the channel mentioned in your letter was probably created to handle storm water runoff, and not the purpose to which you now intend to utilize it.” OCSD told Southern Pacific Railroad April 21, 1983 in a letter "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. Research, 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 weather, in its present state of maintenance; it can adequately carry the quantity of water that will be discharged."This PVC pipe restricting water and blocking debris does not belong in a Community's Storm Water Drainage Channel as per Judge Tangeman's decision above stating that "POVE was primarily responsible for damage to Plaintiff's property." OCSD never mentioned to the Railroad of putting this pipe in their drainage channel in 1983 and acknowledged in 1985 they would need easements for this pipe from the Depot Association and Southern Pacific! Exhibit to the Court # 1758The fact that Caltrans, County and OCSD have knowledge of the use of this pipe in this storm water drainage channel is negligent drainage system maintenance! OCSD has obtained a prescriptive easement having this pipe in this channel over five years! Judge Tangeman stated "In this case, none of the public entities claim a prescriptive right." This is wrong with OCSD claiming use of this channel for other purposes than Storm Water runoff acknowledging September 11, 1985 that they would need an easement to use the railroads property! This pipe has been in this channel over 5 years! The following documents show County building permits, RWQCB knowledge of Caltrans, County and OCSD using this drainage system even after requiring POVE to raise the outlet of the retention pond that Caltrans, County, OCSD, Railroad and POVE all use! Caltrans is now using this channel to store debris off of State Highway 1 since December 2000! It is not known 100% if the RWQCB has permitted the OCSD PVC pipe in the Storm Water Drainage Channel? See Evidence Presented to Judge TangemanTrial Exhibits seen by Judge Tangeman...The California Department of Transportation State: Regarding Prescriptive Easement July 28, 2008. "A land owner has the right to pass upstream waters off of his property so long as his conduct is not unreasonable. See Locklin v City of Lafayette (1994)" "Utilizing an existing natural watercourse for drainage of surface water runoff.....does not transform the water course into a public storm drainage system." BOOKOUT_-_Plaintiff_s_Supp_Brf_i... Caltrans as seen in this photo maintained the Storm Water drainage Channel prior to 2002 as stated in documents the County of San Luis Obispo had withheld from discovery until December 2, 2002. see OCSD unreasonable and hap-hazard maintenance in their sworn testomonyThe California Department of Transportation State: "Plaintiff has offered no evidence to show the alleged use by the public entity defendants of the UPRR drainage channel and culvert was adverse to the railroad. Plaintiff has not shown and cannot show the alleged use was continuous and uninterrupted."Cal_Trans_Documents.pdf
Caltrans does not have a right to fill in a Storm Water Drainage Channel by Shoveling and Grading debris into this drainage system as seen in this March 22, 2005 photo of Caltrans!
Judge Martin J. Tangeman Stated on Page 10 in his August 5, 2008 court decision regarding Caltrans Maintenance and this Caltrans Supervisor seen below. "Mr. Fry testified that any work undertaken by Cal Trans employees in the channel to help clear the channel were most likely undertaken solely as a "good neighbor" practice by a "conscientious employee." Notice, Mr. Fry shoveling debris into the Oceano Community's Storm Water Drainage channel! Trial Exhibits seen by Judge Tangeman... See video below January 4, 2007--December 19, 2007--April 2, 2008-November 26, 2008! see Caltrans documents Cal_Trans_Documents.pdf
There is no reason for Caltrans to shovel and grade debris into this storm water drainage channel against their NPDES Storm Water permit!
In Skoumbas v. City of Orinda as corrected and noted by the Court January 5, 2009 the Plaintiff Appealed the Courts Decision and Won showing government wrong doing! I have included this case as this shows inverse condemnation, causation and liability issues not addressed by the SLO Court.! Filed 7/31/08 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF ... Judge_Final_Ruling_by_County_Feb... misstates Skoumbas v.City of Orinda 371-375 "The City argues for some type of whole ownership rule, asserting that an entire drainage system must be a public improvement in order to find a government agency liable in inverse condemnation for downstream damage caused by diverted surface water. Such a whole ownership requirement is not found in the standard that applies to cases asserting inverse condemnation as a result of diverted surface water, and is belied by the facts in the leading cases in this area. (See, e.g., Locklin v. City of Lafayette, supra, 7 Cal.4th at pp. 371-375 [discussing liability of the city, Caltrans, BART, the county and flood control district]; id. at p. 378 (conc. opn. of Mosk, J.).) We will not adopt such a rule.[1]"
Skoumbas v. City of Orinda cited Keys v. Romley at the bottom in which showed. "The Keys court declared that surface water cases should not be decided by an unvarying rule, but rather by the facts of the particular case, as determined by a jury.”Filed 12/21/01 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF ... - other developments[PDF]Recent Developments in Inverse Condemnation Law
February 2, 2009 Judge Teresa Estrada-Mullaney has made her final ruling on this Case which will now have to be appealed! In her reasons for her decision she states: "Similar to his rulings as to the County and State, Judge Tangeman concluded Plaintiff's evidence was too speculative to support liability against OCSD for its drainage outfall from Well No. 8 or its improvement of real property. As to Union, Judge Tangeman determined the evidence failed to support a basis for liability for improvements made by POVE and found that the improvements were constructed without invoking powers of eminent domain. Judge Tangeman did , however, allude to Union's negligent omission to enlarge the culvert. Union is not entitled to judgment on the pleadings based upon causation issue preclusion. Nevertheless, the statute of limitations applies equally to all Defendants."
County of San Luis Obispo Liability under Locklin v. Lafayette Filed 4/30/98 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF ...Locklin v. City of Lafayette (1994) 7 Cal.4th 327 provided courts with guidelines for applying the reasonableness rule. Under Locklin, a landowner is ...
Judge Teresa Estrada-Mullaney in her decision February 2, 2009 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 Defendant's 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. See Documents withheld from discovery by County showing Caltrans maintaining this channel until the summor of 2002!County_Discovery_Abuse_Baughman_... SeeTrial Exhibits seen by Judge Tangeman... The situation has been stable and static such that all of Plaintiff's remaining causes of action accrued prior to mid 2002 and therefore are barred by the applicable statute of limitations. (CCP ~338)"Judge_Mullaney_Judgement_Februar... see documents withheld from discovery by CountyCounty_Discovery_Abuse_Baughman_... SeeTrial Exhibits seen by Judge Tangeman...
From the Evidence presented to the San Luis Obispo Court of drainage changes since 2000 above and below it is well documented that this flooding is Trespass and Nuisance; that this Trespass and Nuisance can be reasonably abated. This is not a permanent nusiance. The negligent maintenance, haphazard weed abatement; Caltrans raising Hwy 1, grading and shoveling debris into the Oceano Community's Storm Water Drainage channel along with the OCSD pipe blocking, dredging and damming debris in this channel can all be reasonably abated! OCSD has proved this in their OCSD video taped meeting January 10, 2005 seen below! see transcript attached OCSD_FLOOD_MEETING_JANUARY_10__2...This is document in Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal. App.4th 848
Caltrans District 5 Pete Riegelhuth NPDES Coordinator responded to the RWQCB Roger W. Briggs January 12, 2009. Stating: "Staff maintains the entrance to the roadside drainage channel by shoveling sediment out of the channel and onto the banks." "When the rain event is over, Caltrans staff returns to remove the shoveled material."_to_Oceano_Complaint_by_... I would like to thank the RWQCB and Roger Briggs for obtaining this response from Caltrans.
Caltrans does not have a legal right to shovel debris outside of their Right-Away into the Railroads Storm Water Drainage Channel as Seen in this April 2, 2008 Security Video presented to the Court! Caltrans does not return after storm event to remove shoveled material!
The Trial Court erred when Judge Martin J. Tangeman States: "Plaintiff also alleged that OCSD should be liable because its outfall pipe acted as a dam to capture debris in times of flooding, and/or that at times of discharge from its outfall pipe, debris may have been pushed into the culvert." "In each of these cases, the Court finds that the evidence is too speculative to support liability for inverse condemnation. No studies were undertaken or evidence provided showing the effect, if any, of either of these factors during times of flooding." view studies presented to Court Additional_Calculations.pdf see liability Supplemental_Calculations.pdf
Judge Martin J. Tangeman Stated: "There Was Insufficient Evidence To Hold Oceano Community Service District Liable For Inverse Condemnation" In the case of OCSD, the evidence largely consisted of the construction of the drainage outfall from Well #8 in the vicinity of the culvert. While there was evidence of substantial amounts of water being discharged from Well No. 8, there was an absence of evidence that such discharges occurred contemporaneously with heavy rains and flooding problems." See Case cited by Judge Teresa Estrada Mullaney January 5, 2009 Skoumbas v. City of Orinda (2008) 165 Cal. App.4th 783. As well as Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal. App.4th 848. ( Again Judge Martin J. Tangeman cited Skoumas v. City of Orinda, a case that does not exist?) see his ruling attached The_Judges_Decision_not_looking_...
Construction is Construction, OCSD took the Railroad property and made physical improvements with their PVC pipe construction and extension of their public facilities on railroad property up until December 2002. This public utility OCSD (water department) exercised eminent domain powers to construct and extend their facilities making drainage obstacles at the railroad drainage inlet and then dredging debris into the railroads storm water drainage inlet pipe daily! The Railroad failed to reinforce the purpose of their Storm Water Drainage Channel thereby causing State Highway 1 and the Community of Oceano to flood. Caltrans owns a portion of this pipe that runs under State Highway 1 as no easements have been presented by Caltrans showing otherwise? Evidence presented to the Court shows Caltrans lowering the capacity of their Right-Away for storm water retention! see p. 8 August 5, 2008 decision
The County of San Luis Obispo needs to be held accountable as per Skoumbas v. City of Orinda (Belair, Locklin, and Bunch). Please read the attached documents with the County knowledge of drainage changes made by them with their letter July 18, 2006 and their letter to their insurance February 6, 2007 talking about trying to make a deal. This apparently is what happens in San Luis Obispo County and need to be made public to the National News Media! New Times, 20/20, NBC? Public Safety should be the County's #1 Concern not making deals to get around their liability for drainage changes made above and below State Highway 1! County_trying_to_make_a_Deal.pdf
Skoumbas Stated: “Belair, Locklin, and Bunch embody policies that recognize that inverse condemnation recovery be equitable, that support the importance of public works projects, and that ensure that the public entity be liable only for the proportionate amount of damage caused by its actions. Our conclusion furthers these policies and also has the further laudable effect of encouraging public entities to engage in flood control efforts while discouraging them from making uncompensated use of private property.” (Odello Brothers v. County of Monterey (1998) 63 Cal.App.4th 778, 792.)
In the Courts Notice of entry Judgment February 2, 2009 under Causation the Court States: "The Skoumbas court, citing Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 367, declared the relevant question was weather city's unreasonable conduct was a substantial cause of the damage to plaintiffs property. (Skoumbas, supra at 794)"
The Appeal Court for Skoumbas v. City of Orinda reversed the trial Courts decision Stating: "The tort liability of the City as an upper landowner may be decided under the modified civil rule expressed in Keys v. Romley, supra, 64 Cal.2d 396 that also turns on the relative reasonableness of the parties' conduct. This inquiry too, is highly factual and seems unsuited as the basis for summary judgment in this case." Disposition The Judgment is Reversed.
In Skoumbas v. City Of Orinda. "The City argues for some type of whole ownership rule, asserting that an entire drainage system must be a public improvement in order to find a government agency liable in inverse condemnation for downstream damage caused by diverted surface water. Such a whole ownership requirement is not found in the standard that applies to cases asserting inverse condemnation as a result of diverted surface water, and is belied by the facts in the leading cases in this area. (See, e.g., Locklin v. City of Lafayette, supra, 7 Cal.4th at pp. 371-375 [discussing liability of the city, Caltrans, BART, the county and flood control district]; id. at p. 378 (conc. opn. of Mosk, J.).) We will not adopt such a rule. fn. 14 {Slip Opn. Page 13}" In this case drainage ownership belongs to the County, Caltrans, OCSD, Railroad and then is placed on POVE! OCSD owns the Pipe placed in the Drainage Channel. Caltrans Owns the Dirt and Debris they shovel and Grade into this drainage channel along with eucalyptus branches and debris coming off of their trees in their right-away! The County owns the street above this channel that the County diverts and increases drainage flow to this channel-Recent Developments in Inverse Condemnation Law
Article I, section 19 of the California Constitution (section 19) provides that when a public entity takes or damages property, it must pay the owner just compensation. (See, e.g., Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 362 (Locklin).) In Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550 (Belair), we held that when a public entity’s design, construction, or maintenance of a flood control project poses an unreasonable risk of harm to property historically subject to flooding and causes substantial damage to it, the property owners may recover damages for inverse condemnation under section 19. (Belair, supra, 47 Cal.3d at pp. 564-567.) Belair concluded that, if the public entity acted unreasonably, compensation "constitutes no more than a reimbursement to the damaged property owners of their contribution of more than their [proportionate share to the public undertaking]." (Id. at p. 566.) The question here is whether, in the narrow and unique context of flood control litigation, Belair’s rule, as endorsed and refined by Locklin, supra, 7 Cal.4th 327, should apply when the public entity’s efforts to divert water from a potentially dangerous natural course fail and cause property damage during a severe tropical storm. The Court of Appeal concluded the rule should apply.
A continuing nuisance is one that can be discontinued or abated at any time. OCSD can remove their pipe dredging debris into the railroads storm water drainage pipe at any time and proper maintenance by the government users of this drainage channel can take place as noted in the January 10, 2005 OCSD meeting below! The County of San Luis Obispo testified at trial "The problem -- As far as fixing the drainage on the lot, the -- the problem was the impact of the fix on downstream property owners, not that something down there needed to be fixed in order to solve the problem upstream." The County stated. "Yes, we worked with the Department of Transportation on a Caltrans potential project." This statement by the County makes the County liable for any flooding west of State Highway 1 as documents withheld from discovery show flooding problems prior to 2004! County_Discovery_Abuse_Baughman_...
To fix the flooding of State Highway 1 the County will have to store their water west of State Highway 1 instead of flooding downstream property owners! Caltrans can no longer grade and shovel debris into the Oceano Community's Storm Water Drainage channel off of their Right-Away into railroad property as seen in photos and videos on this below!
The County of San Luis Obispo withheld evidence from discovery which they finally provided December 2, 2008 County_Discovery_Abuse_Baughman_... regarding the statements above! The County could have Discontinued and abated this problem at any time! The continuing drainage changes since December 2002 have all revolved around impacts to downstream property owners and information withheld from discovery by the County of San Luis Obispo.Caltrans_1953_Aerial_Photo_Knowl...
Judge Martin J. Tangeman States P. 13 in his August 5, 2008 Decision. "There was no showing of the County's responsibility for designing or maintaining the drainage channel or facilities immediately downstream from plaintiff's property." The County of San Luis Obispo provided this evidence December 2, 2008! See Caltrans Documents Cal_Trans_Documents.pdf
State Highway 1 has been used by Caltrans as a Storm Water Retention Basin with their Tort liability concerns west of State Highway 1! This photo in December 2002 shows Caltrans doing drainage changes to the State Highway 1, 13th and Paso Robles Streets before they removed their retaining wall in 2003. These changes came after Caltrans raised State Highway 1, 6 inch's in December 2000 as they stated they could raise the State Highway on September 15 1987 (see Caltrans Quotes Below) This photo was provided to the court with my property not flooding. State Highway 1 is 1-1-1/2 deep with flood waters! To the left of the sidewalk in front of the Nursery is the County Bike Lane Curb which Caltrans removed in December 2002 or January 2003 and to this day has not replaced after raising 13th Street after this photo was taken! You will see photos below of Caltrans corner Sidewalk Drainage changes affecting public safety with a accident of a 13 year old little girl!
Below is a similar case previously appealed. If the Court had originally cited Skoumbas instead of Skoumas this case would have been found by myself! Filed 12/21/01 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF ... File Format: Microsoft Word - View as HTMLDec 21, 2001 ... Under the seminal case of Keys v. Romley (1966) 64 Cal.2d 396 (Keys)
Remember this statement by OCSD as you view the evidence below! ("So that there will be no danger of the pipe plugging debris at the entrance to the culvert." ) Notice the pipe plugging debris at the entrance to the culvert in these photos? " OCSD prescriptive easement/Adverse Possession/eminent domain powers 1983 Letter to County, Railroad and POVE! see County of San Luis Obispo response to court July 30, 2008 #7 Conclusion below 1985 ocsd meeting!
Judge Martin J. Tangeman States: "Plaintiff also alleged that OCSD should be liable because its outfall pipe acted as a dam to capture debris in times of flooding, and/or that at times of discharge from its outfall pipe, debris may have been pushed into the culvert." "In each of these cases, the Court finds that the evidence is too speculative to support liability for inverse condemnation. No studies were undertaken or evidence provided showing the effect, if any, of either of these factors during times of flooding." See the evidence below of Testimony by OCSD! Additional_Calculations.pdf View the photos presented to the court at times of flooding!Supplemental_Calculations.pdf
The court reporters transcript page 103 by Mr. Cregger of the Railroad July 10, 2008 States: Question. Mr. Davis, Sticking with you daily log, I'd like to draw your attention to the entry for December 9th, 2004. Answer. Okay. Question. Do you see where it says, "Joe Crawled down under the slab and said that the culvert is about one-third plugged, the last 20 feet or so next to P.O.V.E." Do you See That? Answer UH-HUH Question Is that the--- Refer to the section of pipe which leads from the railroad tracks to the junction box? Answer Yes.
Page 90 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. 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 Testimony above and below of photos and Video evidence was provided to the San Luis Obispo Court! Notice the affects after flooding as an OCSD employee inspects the Railroads Storm Water Drainage inlet pipe with debris acting as a dam behind Mr. Davis at the OCSD pipe? See the Debris OCSD had pitch forked on the bank next to the drainage channel, which had been damming and plugging the Railroads Storm Water Drainage Channel! See the sworn statements above by OCSD involving the last 20 feet of the Railroad pipe plugged!
Page 100-101 OCSD Testimony: Question. March 23rd , 2005, it's a discussion of Joe and Max removing Eucalyptus Bark from in front of the culvert? Answer. Yes. Question. That would be the date of the photo that's on the screen, correct March 23rd, 08-- Answer. OH FIVE. PAGE 101-Question-Was that debris removed from the site or, as you said earlier, disposed at the top of the bank? Answer. I believe they Just threw it out with a pitch fork, on the bank.
Judge Teresa Estrada-Mullaney States. "One of the most difficult aspects of the decision in this case is the fact that during my medical leave (due to a broken arm) Judge Tangeman presided over the inverse condemnation trial. His statement of decision, however, provided well explained reasons for his rulings." I do not agree with either Judge Tangeman decision nor Judge Teresa Estrada-Mullaney's Decision. Judge_Estrada_Mullaney_January_5... I believe the court made an error by not allowing the remaining causes of action to go to trial and dismissing our expert's analysis without any opposing evidence! As in Keys v. Romley. "The Keys court declared that surface water cases should not be decided by an unvarying rule, but rather by the facts of the particular case, as determined by a jury.” "Reasonable Care" on Unstable Hillsides - J. David Rogers - ---Flood Damage: Evolving Laws and Policies for an Ever-Present Risk ...
The County of San Luis Obispo had withheld documents from discovery which would of had an impact on the Judge's decisions, however the causes of flooding are not POVE's fault as seen above and below. This drainage problem today begins with Negligent Drainage system Maintenance/ Drainage (improvements ) changes made by County bike lane/curb/gutter and sidewalk requirements since 2000; Caltrans and OCSD drainage changes in December 2002 as seen in this photo of an OCSD employee making drainage improvements in the Oceano Community's Storm Water Drainage Channel as he was instructed by OCSD to do with the OCSD prescriptive easement 1983.“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 entrance to the culvert.” Exhibit #1768
This OCSD Well # 8 pipe as seen above, that comes from the other side of State Hwy 1 has no purpose in a Storm Water Drainage Channel and is a substantial cause of the flooding we see today! OCSD admits above their Maintenance responsibility and use of this channel as stated by OCSD. " 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 entrance to the culvert.” The evidence presented to the court shows what happens with the rest of this pipe plugging debris at the entrance to the culvert.
Here begins the accrual date of the cause of action. "Inverse Condemnation" The "date of stabilization" The above evidence of drainage improvements by OCSD and Caltrans in December 2002 turns out to be the cause of the debris being dredged and compacted into the Railroads 24 inch storm water inlet pipe! OCSD and Caltrans thought that they were making improvements with both of their construction in December 2002. It is unfortunate that at this time this pipe was not removed entirely from this drainage channel! The Railroad had to later remove one of the concrete bags that caltrans had installed as seen in this photo!Motion_for_Reconsideration.pdf County oppositionDefendant_County_of_SLO_Oppositi... Supplemental-Defendant_County_of_SLO_Oppositi...
Judge Martin J. Tangeman States: P 10 in his August 5, 2008 decision. Plaintiff Has Failed To Prove That Defendants Have Acquired A Prescriptive Easement Over Private Property. Written Exhibits #1758 #1756 to POVE #1729 from OCSD to the railroad, response back #1730 from the railroad provided to the Court show On April 21, 1983 OCSD claimed a (prescriptive easement) useing the storm water drainage channel running into a retention basin. OCSD Stated. “Because this is an established drainage channel, the district feels that its full design capacity should be available for use.” The Railroad responded back April 29, 1983. “ It would appear that the channel mentioned in your letter was probably created to handle storm water runoff, and not the purpose to which you now intend to utilize it.”BOOKOUT_-_Plaintiff_s_Supp_Brf_i...
Oceano Community Service District Minutes Exhibit # 1758 September 11, 1985 presented to the Court State: "2) To take the discharge line which runs underneath Highway 1 and use it to discharge water near the railroad station. GM Hill stated that this would require obtaining easements from the Depot Association and Southern Pacific."
Oceano Community Service District stated to the Superior Court of San Luis Obispo on July 30, 2008 "NO PRESCRIPTIVE EASEMENT EXIST" The letter written to the County, Railroad and POVE in April 21, 1983 begins their prescriptive easement, especially with their installing their PVC pipe in the Oceano Community's Storm Water Drainage channel after 1988 as Caltrans photos show below presented to the Court! Adam Daner the Attorney for OCSD States in his conclusion to the San Luis Obispo Court regarding OCSD not having a Prescriptive Easement. "Plaintiff's case is barred by the applicable three year statute of limitations. Plaintiff failed to present any evidence whatsoever that any of the defendents entities have a prescriptive easement rights over the relevant property."BOOKOUT_-_OCSD_support_judgment....
This photo shows the OCSD pipe that the Court had stated was in the vicinity and not in the drainage channel. This 2006 photo after OCSD had done weed abatement in 2005 shows OCSD liability for plugging at the culvert from the OCSD pipe being in the drainage channel! Notice the pipe above their pipe that OCSD left after their weed abatement blocking debris!
The Oceano Community Service District Letter to Southern Pacific Railroad April 21, 1983 stated in Quotes "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."
The Oceano Community Service District Submitted to the Superior Court of San Luis Obispo County on July 30, 2008 Exhibit # 1729. as quoted above. This exhibit written to the Southern Pacific Land Company by General Manager of OCSD Richard C. Hill does not mention the OCSD pipe installed into the Drainage channel after 1988 from Caltrans maintanence photos below!
This Drainage Channel was never designed for this OCSD pipe plugging debris! The Retention Pond on Railroad property was not designed for 4500 gallons of water being dredged into it daily by OCSD! OCSD ignored the advice of the Railroad and took a prescriptive easement useing the drainage channel and the Railroad retention pond for their own use other then storm water runoff and retention! It was shown above from quotes by OCSD that they have maintained this pipe and channel on many occassions. Their weed abatement is maintenance as they had removed debris and sedimentation numerous times since installing their PVC pipe in the community's storm water drainage channel.
The Oceano Community Service District Stated to the Court July 30, 2008 "The Locklin Court clearly stated that a public entity must exert control over and assume responsibility for maintenance of a natural watercourse if it is to be liable for damage caused by stream flow. Locklin v. City of Lafayette (1994)" See photos and Statements above.
The County Of San Luis Obispo State July 28, 2008 to the Superior Court Of The State Of California County Of San Luis Obispo. "Conclusion" "Plaintiff has attempted to mold his evidence and cobble together a cause of action from bits and pieces of various claims and theories of recovery. He cannot, however, realistically and properly avoid the inevitable conclusions that his claim is one for damage to property pusuant to Cal. Const. Atr. 1~19, governd by the limitations period set forth in CCP 338(J); that his causes of action accured, at the latest, June 2002; and that none of the defendents have obtained prescriptive rights to any property of any of the defendents. Accordingly, these arguments should be deemed insufficient to defeat defendent's motion for judgement." July 28, 2008 Hall, Hieatt & Connely, LLP By: Molly Thurmond Attorney for Defendent, County Of San Luis Obispo. See County Documents withheld from discovery of Caltrans maintaining the drainage channel until the summer of 2002 County_Discovery_Abuse_Baughman_...
The California Department of Transportation State: Regarding Prescriptive Easement July 28, 2008. "A land owner has the right to pass upstream waters off of his property so long as his conduct is not unreasonable. See Locklin v City of Lafayette (1994)" "Utilizing an existing natural watercourse for drainage of surface water runoff.....does not transform the water course into a public storm drainage system."BOOKOUT_-_Plaintiff_s_Supp_Brf_i...
"Plaintiff has offered no evidence to show the alleged use by the public enity defendents of the UPRR drainage channel and culvert was adverse to the railroad. Plaintiff has not shown and cannot show the allegeged use was continuous and uninterrupted."Cal_Trans_Documents.pdf
In February 1994 this case mentiond by Caltrans above came before the California Supreme Court (7Cal 4th 327, 1994), who partially overturned the decision, there by rescinding the natural watercourse rule. The Supreme Court eliminated the immunity afforded by the Natural Watercourse Rule and instead held that anyone or any agency can be held liable if they act unreasonably in the collection, conveyance and discharge of surface waters. The Locklin decision means that public agencies, in particular, will no longer be granted summary judgements in flood cases involving natural channels, as had been the case for the previous 85 years. see documents withheld from discovery showing Caltrans Maintaining the drainage channel until the summer of 2002 County_Discovery_Abuse_Baughman_...
Caltrans 3:am December 19, 2007 as the water is draining off of State Highway 1 Caltrans is caught on Security Cameras Shoveling Debris into their Storm Water Drainage inlet Right- away off of State Highway 1 into the Railroads Storm Water Drainage Channel! Notice the Caltrans truck gradeing in both directions!
Caltrans prior to the summer of 2002 was maintaining the Storm Water Drainage channel as County Documents presented to the Court Stated. This Color photo below obtained from the County on December 2, 2008 shows Caltrans maintaining this channel in 2002 as the County of San Luis Obispo States on this document!County_Discovery_Abuse_Baughman_...
Caltrans as seen in this video November 26, 2008 with the Courts Decision January 5, 2009 will be allowed to continue shoveling debris off of State Highway 1 into the Oceano Community's Storm Water Drainage Channel used by Caltrans, County Of San Luis Obispo and the Oceano Community Service District.
These are quotes from Exhibits presented to the court exhibit # 1785 May 14, 1987 This is after the County had required drainage improvement changes in 1985 on Railroad property for the retention pond used by the County, Caltrans and OCSD after issueing building permits to POVE!
“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.”Cal_Trans_Documents.pdf
The County of San Luis Obispo and Cal Trans have taken State Highway 1, thirteenth and Paso Robles streets for their use as a de facto retention basin as documents obtained December 2, 2008 show with the statements above! Caltrans Grading and shoveling debris into this system stands along, however their concerns of a fix as stated in documents show this to be true. if this is not imediatly fixed they will be responsible for any injuries or accidents during flooding times!County_Documents_withheld_from_d... seeCounty_Discovery_Abuse_Baughman_...
The next two photos are Caltarns shoveling debris into the Railroads storm water drainage channel and the Railroad removing a drainage improvement by Caltrans in December 2002 when the Oceano Community Service District cut Five feet off of their PVC pipe they had placed into the Railroads Storm Water inlet pipe. Notice the debris shoveld onto the bank!
Union Pacific Railroad in their June 27, 2008 Introduction to the Court state our experts concerns: 1)Blockage of the Natural Drainage way and insufficient sized drainage pipe. 2) OCSD's operation of a drainage pipe leading into the drainage way which adds silt and debris; (3)compromise of the drainage of the drainage system by poorly designed wxtensions at the POVE facilit;(4)increased construction in the watershed;(5)decrease in the available storage for water at the inlet of the drainage pipe (6)lack of maintence of the drainage system.
None of the Defendents called any experts to disput any of these issues!
As many of you are aware since 2004 my business, (Oceano Nursery) and the Community has been having severe flooding problems on State Highway 1 that have been caused by several governmental agencies drainage changes since December 2000 with Caltrans raising State Highway 1. Then in December 2002 when this OCSD prescriptive easement pipe above was cut off five feet and not removed from the drainage channel which Caltrans then placed concrete bags in front of the OCSD Well # 8 pipe causing another easment by caltrans to this drainage channel!
I have had to close my business and take legal action against these agencies to correct their Drainage changes and maintenance practices to this drainage channel with their storing of contaminated storm water runoff on State Highway 1 My Property, the Community and allowing debris and sediment to accumulate in the Community’s Storm Water Drainage Channel. These maintanence practices are not normal! It is time to look at our public safety!This still photo of an elderly lady having to drive through Storm Water on State Highway 1 in 2-2-1/2 feet of water is not acceptable of our local governments maintenance below!
My business (Oceano Nursery), Oceano Market, State Highway 1 and the Oceano Community has just flooded again on December 14th and 15th 2008 showing a greater need to bring this to the public's attention! Caltrans again has been Caught on security Cameras November 26, 2008 shoveling debris into the Community's Storm Water Drainage Channel, as seen above on security videos. I am now closed again and hope to one day re-open.
With my upcoming Appeal we will find out if Caltrans continued raising, grading and shoveling of debris into a Community's Storm water drainage channel is legal and if this will become case law affecting all Communities in California? At this time I believe the only way to ever see this problem fixed is to appeal the Courts decisions Stating that POVE was at fault; not local government! " Their faulty construction work was the "substantial cause" not any negligent drainage system maintenance by any of these defendents."Caltrans has changed their Maintenance to State Highway 1 as you will see below! View their written quote September 15, 1987? “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.” If Caltrans does have a legal right to raise a State Highway and a drainage channel then they have legally taken my property and Oceano Markets property too? This should be ansered in my appeal?
Judge Martin J. Tangeman Stated in his decision August 5, 2008 "The Date of stabilization" approach does not apply in this case. The evidence showed that the last improvements made to the drainage systems were constructed by Pismo Oceano Vegetable Exchange ("POVE") in the late 1970s. Fruther, the evidence demonstrated that the flooding problem was relatively consistent and static for several years prior to the date Plaintiff purchased his property." See Caltrans DocumentsCal_Trans_Documents.pdf
We provided statements by Caltrans and evidence of Caltrans maintaining this drainage channel in the eighties to 2002. one of the County documents withheld from discovery show this drainage channel maintained by Caltrans til 2002? Any drainage maintanence would be considerd an improvement! Their has been no drainage maintenance since December 2002 by Caltrans when they installed concrete bags in this system showing another prescriptive easment of drainage maintenance! see Court Exhibits Quotes below 1785, 1795, 1786, 1788, 1789, 1796
As Stated by Judge Teresa Estrada-Mullaney above "Judge Tangeman decided that POVE was primarily responsible for the damage to plaintiff's property. Their faulty construction work was the "substantial cause" not any negligent drainage system maintenance by any of these defendents." Caltrans improved and raised State Highway 1 in 2000-2008 this faulty constrution work and knowledge of drainage problems by Caltrans has not stabilized since December 2000! Caltrans removed a County bike lane curb on Paso Robles Street without replacing this berm is negligent drainage system maintenance!
In our Appeal these will be some of the issues addressed above and below!
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).)
Another aspect of the analysis of whether a nuisance is permanent or continuing is whether a nuisance is stabilized and whether it can reasonably be abated. On the issue of stabilization, the courts have declared a rule that a cause of action does not begin to accrue until the nuisance and consequent damages are stabilized. (Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848, 857-858, citing Pierpoint, supra, 70 Cal.2d at pp. 291-294 and Stonewall Ins. Co. v. City of Palos Verdes Estates (1996) 46 Cal.App.4th 1810, 1843.)
1) In this case this nuisance could be reasonalby abated if Caltrans would not grade and shovel debris into the Oceano Community's Storm Water Drainage Channel. If they would lower State Highway 1 to it's origional height of 2000. If they remove the rest of the fill dirt from behind the retaining wall they had removed in 2003 on their right-away. if they would remove the three trees on their right-away contributing to the debris OCSD dredges into the Railroads storm water drainage inlet pipe.
2) Oceano Community Service District would relinquish their prescriptive easement into the Railroads Storm Water Drainage Channel and remove their Well # 8 pipe dredgeing 4500 gallons of water and debris daily into the Railroads storm water drainage channel and then into the County, Caltrans and OCSD retention pond that OCSD claimed use of in 1983 according to letters witten by OCSD to the County, Railroad and POVE! Then OCSD be required to install underground retention on their propertys instead of allowing water runoff into this drainage system since construction in 2001.
3) County of San Luis Obispo change their 1985 requirement of POVE to Raise the Community Storm Water Retention Pond on Railroad property and then invest $43,295.00 to correct County drainage as Caltrans had presented to the Glenn Priddy County of San Luis Obispo September 25, 1987. Recieved September 28, 1987 by the County of San Luis Obispo Engineering Department! that the County discontinue additional curb gutter and sidewalks requirments until drainage is corrected.
Documents provided to the Court show, that the drainage was not "Static" and that the County of San Luis Obispo required the Railroad/POVE property pond in March 1985 to raise their outlet of the Retention Pond on Railroad property that the County, Caltrans and OCSD where useing at the time prior to signing off their building permit 5/22/85? Photos and letters show Caltrans at this time maintained the Railroads drainage channel and OCSD from a April 21, 1983 letter to the County Of San Luis Obispo/POVE/Railroad had claimed a right (prescriptive Easement) to use the retention Pond on Railroad property stating "Because this is an established drainage channel. The District feels that its full design capacity should be available for use." Notice the OCSD PVC Pipe Below! The Railroad responded back, April 29, 1983. “ It would appear that the channel mentioned in your letter was probably created to handle storm water runoff, and not the purpose to which you now intend to utilize it.”Caltrans in 2003 removed their retaining wall on their four foot right-away on State Highway 1.This December 2000 Photo shows this wall with Caltrans raising their State Highway six inch's as they had stated September 15, 1987 they could raise the highway 1 foot and leave both the County and the Oceano Community Service District the problem to solve on their own
April 2, 2008 video of Cal Trans caught on Security Cameras shoveling debris into Storm Water Drainage Channel leaving Caltrans four foot Right-Away onto Railroad drainage inlet property! I Would call this faulty maintenance as this debris should be removed and not shoveld into this drainage system?
Notice Caltrans workers shoveling debris into Storm Water Drainage inlet January 4, 2007? see Security videos below! POVE Does not pay these State Employees to shovel this debris into this system. The Tax payers of California Do!The County of San Luis Obispo Attorney's had chosen to withhold evidence from our first trial (Oceano Residents 2002 questionnaire Statements) from discovery. They objected any time this drainage downstream was brought up. They stated to the San luis obispo Court August 22, 2008 after our first tiral. P.3"Plaintiff, his counsel, and his expert had the same opportunity as defendents to review the summarized responses to determine weather they had any bearing on the allegations in plaintiff's complaint. if the information related to any address on the summary was relevant to the flooding of plaintiff's property," P 6 "Declarations of Thomas Cregger, Adam Daner, and Molly Thurmond attached herto and incorporated herin)"
August 22, 2008 P 7 "The County timely produced each and every document of which it was, or resonably should have been, aware." "Fruther, after discovery, there was no delay in making this evidence known to plaintiff, and in providing plaintiff with all the original responses, as he requested." P 8 "In any event, there is nothing to suggest that any information in any of the additional responses has any bearing on the flooding to Mr. Bookouts's property."
The County of San Luis Obispo on December 2, 2008 finally gave this rest of the evidence to us. The County withholding of this evidence of drainage changes west of State Highway 1 on County owned Airport property affected the Court from knowledge of where the Community's Storm water was historically stored. (see photos below) In 1996 1997/2001/2002 Fountain Avenue, Airpark Dr, Security Court and the west side of Oceano was flooding yearly from the documents the County withheld from discovery including the Baughman property inwhich the County had previously been sued for flooding!The Baughman statement alone with the documents withheld by the County affected the Courts decision! The County of San luis Obispo liability goes from above State Highway 1 to the Pacific Ocean.
Property owner Larry Baughman 1845 Casitas County Summery Statement #158 "(Channel Between Between Railroad Street and Fountain Avenue Overgrown)
This is the true statement as discoverd December 2, 2008 summerized by the County Of San Luis Obispo Above! Larry Baughman owner of 1519 Fountain Ave and Ex- OCSD Director State: "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"Cal_Trans_Documents.pdf
The residents of Oceano should not be held responsible for our local governments storm water drainage changes to the Pacific Ocean! The following statements by the County of San Luis Obispo at Court July 10, 2008 show State Highway 1 drainage being connected to problems west of State Highway 1 as you will also hear the County in the next video
The County testimony at Court July 10, 2008: Question "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 and have you raised issues with respect to proposed solutions due to downstream potential 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: Again this is outside the watershed, not affecting Bill Bookout's property." See Exhibits Quotes Below 1785,1795, 1786,1788, 1789, 1796!County written documents provided December 2, 2008 show 13th, Paso Robles Streets and State highway 1 not being a flooding problem or concern instead the west side of Oceano and Cienaga involving a County Supervisor!
Notice, the dam and then notice five feet cut off of this pipe with the pipe still in this channel with OCSD December 2002 Improvement? "Date Of Stabilization"? Notice, Cal Trans Drainage (Improvement) December 2002 with the Concrete bags Cal Trans had installed after OCSD cut Five feet off of their pvc pipe! The concrete bags were installed by a Cal Trans Maintenance Supervisor who you saw in the January 4, 2007 video above shoveling debris into this storm water drainage channel, followed by photos of his employee's shoveling debris farther into this drainage channel. Notice in the second photo the debris on top of these concrete bags before OCSD turns on their well #8. Notice, OCSD dam at Railroad 24 inch pipe inlet with concrete bags installed by Cal Trans December 2002 at front of dam in Oceano Community's storm water drainage channel Improvement? "Date of Stabilization" On August 5, 2008 with the County of San Luis Obispo Attorneys being allowed to withhold evidence/witness from Discovery and use one document of over 400 withheld from discovery during for our first trial for Inverse Condemnation. The Court ruled against the first phase of trial (inverse condemenation) The Court stated regarding the OCSD 6 inch PVC pipe pictured and talked about above and seen operating in the next photo and video below."There Was Insufficent Evidence To Hold Oceano Community Service District Liable For Inverse Condemnation" In the case of OCSD, the evidence largely consisted of the construction of the drainage outfall from Well #8 in the vicinity of the curlvert. While there was evidence of substantial amounts of water being discharged from Well No. 8, there was an absence of evidence that such discharges occurred contemporaneously with heavy rains and flooding problems."I ask first is this pipe Legal in a Storm Water Drainage Channel? The next question is what is concidered a Vicinity of the Curlvert? What would an engineer say? Who was the engineer who designed this system? OCSD has stated that they use this well 5-6 days a week pumping 4500 gallons of water each time into this retention basin! This is over a one million four hundred thousand gallons of water a year pumped into the Oceano Community's Storm water Drainage system directly into a retention pond OCSD claimed use of in 1983 on Railroad property! Prescriptive easement began with letter to Railroad 1983.From the Court reporter transcript Thursday July 10, 2008 The San Luis Obispo Court heard the following testimony placing the OCSD pipe directly in the Railroads Storm Water Drainage Channel and not in the Vicinity as the Court had stated in their August 5, 2008 decision!P. 83 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 –P.86 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 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 did you oversee an extension of the pipe into the culvert that’s depicted there?Answer. yes.P. 102 By Mr. Gregger of Mr. Davis OCSD. Mr . Gregger states “And lets take a look at your daily log here, Exhibit 1768. And I’d like to direct your attention to the entry for Friday, December 2nd, 2002”Question of OCSD P.103 by Mr. Gregger from the Rail Road “”Well, looking at your Friday , December 20th, 2002, Daily log, it says,” “I had dan saw off the six-inch pipe and end it five feet in front of the culvert.”Answer. “Okay”Question. “is that dan in the picture?”Answer. “yes i believe so.”Question. “Okay.” “why did—why was the pipe cut off?”Answer. “it is in – i think mr. bookout thought that possibly the pipe going inside the culvert was restricting the flow.”
OCSD took possession of the Railroads Drainage channel and property shortly after their September 11, 1985 OCSD meeting as stated: “2) To take the discharge line which runs underneath Highway 1 and use it to discharge water near the railroad station. GM Hill stated that this would require obtaining easements from the Depot Association and Southern Pacific." As provided to the Court from OCSD daily logs Court exhibit #1729, 1730, 1756 Letter to County, RR, POVE #1758 #1768
Evidence provided to the San Luis Obispo Court regarding OCSD outfall pipe from their daily logs provided to the Court improved the Railroads Drainage Channel in December 20, 2002 when they cut five feet off of their previous drainage improvement installing well pipe in inlet! This Improvement as stated by OCSD “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 entrance to the culvert.” Exhibit #1768
This evidence presented to the Court regarding the last drainage improvement until December 2002-1984/85 shows a differn't "Date of Stabilization" then the Courts ruling on in the Date of Stabilization being in the late 1970'S?
Notice the differnce in the statement above and how Mr. Cregger from the RR asked this question below? Remember "Date Of Stabilization"
Question of OCSD P.103 by Mr. Gregger from the Rail Road “”Well, looking at your Friday , December 20th, 2002, Daily log, it says,” “I had dan saw off the six-inch pipe and end it five feet in front of the culvert.”
He forgot to say: "So that there will be no danger of the pipe plugging debris at the entrance to the culvert." see San Luis Obispo Court Statement below! The San Luis Obispo Court States: "Plaintiff also alleged that OCSD should be liable becouse its outfall pipe acted as a dam to capture debris in times of flooding, and/or that at times of discharge from its outfall pipe, debris may have been pushed into the culvert." "In each of these cases, the Court finds that the evidence is too speculative to support liability for inverse condemnation. No studies were undertaken or evidence provided showing the effect, if any, of either of these factors during times of flooding."
Page 90 July 10, 2008 Testimony by OCSD see photo at top. Question. Okay. Now, this is a picture, 1396, of you inspecting the entrence 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 whats 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. 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.
Page 100-101 OCSD Testimony: Question. March 23rd , 2005, it's adiscussion of Joe and Max removing Eucalyptus Bark from in front of the culvert? Answer. Yes. Question. That would be the date of the photo thats on the screen, correct March 23rd, 08-- Answer. OH FIVE. PAGE 101-Question-Was that debris removed from the site or, as you said earlier, disposed at the top of the bank? Answer. I believe they Just threw it out with a pitch fork, on the bank.
This photo was immediatly after a storm! Showing why OCSD would want to improve their Drainage system as aquired by the Railroad? Do you think you could see 100 feet inside of this pipe?
Court Reporters Transcript PAGE 103 by the Railroad July 10, 2008 Question. Mr. Davis, Stricking with you daily log, I'd like to draw your attention to the entry for December 9th, 2004. Answer. Okay. Question. Do you see where it says, "Joe Crawled down under the slab and said that the culvert is about one-third plugged, the last 20 feet or so next to P.O.V.E." Do you See That? that Answer UH-HUH QuestionIs that the--- Refer to the section of pipe which leads from the railroad tracks to the junction box? Answer Yes.
Caltrans and the County Of San luis Obispo February 2, 2007 helping a flooded moterist!
The following videos shows Caltrans pumping out Caltrans, OCSD and the County's Storm Water Retention pond used on the west side of State Highway 1 that Cal Trans, the County of San Luis Obispo and OCSD all use for storing their Storm Water coming off of State Highway 1. The RWQCB Stated on July 11, 1997 in a Staff report that: "The retention pond is used primarily for storm runoff from nearby streets." Notice the oil Contamination that is being pumped towards the Oceano Lagoon and Pacific Ocean?Does the Regional Water Quality Control Board Really allow and approve of this use of Cal Trans, County of San Luis Obispo and OCSD?
Cal Trans,County and OCSD Storm Water being pumped to lagoon and Pacific Ocean.
Cal Trans, County and OCSD Storm Water being pumped to lagoon and Pacific Ocean.
Cal Trans has Intentionally Flooded State Highway 1, local Residents, businesses, motorist traveling, State Highway in Oceano since 2004 from removing a retaining wall on Cal Trans property in 2003, then plowing and shoveling the debris behind this wall into the Oceano Community’s Storm Water Drainage Channel as seen in the photos above and Security videos below! Cal Trans had agreed to fix a previous storm water drainage problem in 1985 that would have only cost $43,295.00 to fix. In a Cal Trans Drainage Project Agreement, September 25, 1987, Cal Trans had taken responsibility for this drainage system and $5,000.00 from Oceano residents, signed an agreement with The Oceano Community Service District to fix Cal Trans drainage system and dispose of Oceano Community Service District storm water!The Residents of Oceano are not financially responsible for Cal Trans chooseing to ignore State Highway 1 Drainage problems, Safety and should not have to pay any assesments for Cal Trans actions below! They have already paid $5,000.00 to Caltrans for their previous share in this fix.November 26, 2008 Caltrans continues to in-danger the Oceano Residents and the public by shoveling debris off of State Highway 1 into the Oceano Community's Storm Water Drainage channel as seen in the first video and photos below taken the follwing day! The San Luis Obispo Court on August 5, 2008 regarding Cal Trans States: "There Was Insufficent Evidence To Hold The State of California Liable For Inverse Condemnation" The Court then States. "Nor was there substantial evidence that debris accumulated within the State's right-of-way (as opposed to the debris accumulated on private property outside the boundaries of the right-of -way) contributed in any meaningful way to the problems in the operation of the drainage facilities on Railroad and POVE properties." SeeTrial Exhibits seen by Judge Tangeman...OCSD 2005 Weed Abatement with dam left by OCSD after the January 10, 2005 OCSD meeting with OCSD president Jim Hill previously talking about this pipe possibly being illegal and that: that issue is being addressed? After flooding in early 2006 with 18 inch's of debris and water in my property there was no other choice then to take legal action for OCSD changes made to the Oceano Community's Storm Water Drainage system since December 2002.
OCSD 2005 Weed Abatement, notice Caltrans Concrete bags and new pipe uncoverd by OCSD?First Storm January 2006, Notice OCSD Dam and New pipe Uncoverd by OCSD?The County of San Luis Obispo and the Regional Water Quality Control Board on 3/25/85 required POVE to raise the outlet for this storm water at a retention pond on railroad property that the County, Cal Trans, and OCSD all use; raised in 1985. Unfortunately, the County has withheld evidence from discovery in Bookout v. State of California showing the County’s involvement both above and below this drainage system with theirs and Cal Trans’ Tort liability concerns of property owners downhill from this storm water retention basin. This explains County building permits issued in the 1984/85 and their requirements for raising of this storm water retention pond.In the evidence withheld from discovery, trial by the County of San Luis Obispo Attorneys and not provided until after trial December 2, 2008 are Questionnaire Statements by residents and property owners showing County Drainage Problems on Fountain Avenue, Corner of Highway 1, Front, Delta and the whole west side of State Highway 1. Residents at 1539 Fountain State: " March 2001 Flooding on entire Street."Property owner Larry Baughman 1895 Casitas owner of 1519 Fountain Ave and Ex- OCSD Director State: "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." County_Documents_withheld_from_d...
"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" His statenent in the County summery "Channel between Railroad Street And Fountain Avenue overgrown."Chuck Bachman 1519 and 1525 Fountain Ave. "6' Up To Apprrox 18' Every Season In Home And Surrounding." Oceano Community Service District on December 20, 2002 changed the inlet to this drainage system below with their 6 inch PVC pipe cut off and dredging sedimentation and debris into the Railroads, Cal Trans, County’s, OCSD Drainage system which is a main contributor to the flooding we see today. Along with Cal Trans present maintenance activities and County building permits uphill! The Photos below show OCSD has no concern for their PVC pipe they had placed in the Oceano Community's Storm Water Drainage Channel. OCSD has submitted a Storm Water Management Plan to the Regional Water Quality Control Board that can be viewed on line in which OCSD shows on page 7 that they have a "Well Water Overflow Basin A" which is misleading. The photo below is where OCSD Stores their well water on the west side of State Highway 1! OCSD claimed use of this Retention pond in 1983 in their letter to POVE, County and Railroad! (prescriptive easement)
The Debris the Railroad removed in 2007 is still on the edges of the drainage channel today along with the concrete bag as seen in the photo below.
Please help and see that State Highway 1 is made safe again for our residents and travelers by asking questions of our local government! To fix this drainage problem, Cal Trans, County of San Luis Obispo, Oceano Community Service District and the Railroad will need to work together, taking responsibility for their prior drainage changes.Below are some Ideas to fix this dangerous situation before we have rain!1) Removing the debris and sedimentation Cal Trans has been grading and shoveling into the Oceano Community’s Storm Water Drainage Channel!2) Enlarge Cal Trans 4 foot right-away at Cal Trans, drainage entrance to this Oceano Community drainage channel!3) Remove three of the eucalyptus trees on Cal Trans 4 foot right-away raising Highway 1 and contributing to the debris Cal Trans has been grading into this drainage channel.4) Require the Oceano Community Service District to remove the 6 inch PVC pipe they have placed in the Oceano community’s storm water drainage channel dredging debris into the Railroads 24 inch inlet pipe since December 20, 2002.5) The Railroad will need to maintain their drainage inlet pipe removing blockages dredged and shoveld into their drainage system by Cal Trans and the Oceano Community Service District. Plus stopping the debris from County Streets being allowed to wash into this drainage system.6) The County of San Luis Obispo and the Regional Water Quality control Board will need to lower and enlarge the storm water retention pond, that they required the outlet raised in 1985. The County then needs to use their property for storm water runoff!Once this is done yearly maintenance will keep State Highway 1 from Flooding and Safe for our residents, motorist and pedestrians
The County Of San Luis Obispo Attorney's Pictured below have been able to withhold over 400 + Documents and over 53 witnesses from Discovery showing my property not flooding prior to 2004. They were allowed to use one of these un-disclosed documents in our first round of trial without disclosing the other documents that went with this one piece of evidence before trial or after until December 2, 2008. This act by the County of San Luis Obispo Attorneys affects the whole Community of Oceano as the County attorney stated to the County's insurance company on February 6, 2007. "As to the fix the defendants did agree it does not make sense to resolve the plaintiff's damage claim unless the problem has bee rectified.' 'Clay Hall County Attorney'! County_Documents_withheld_from_d...The County of San Luis Obispo when they first disclosed some of these documents on July 30, 2008; chose to redact all of the names of these witness and withheld additional information (Photos) showing Cal Trans, County, OCSD Liability. When requested again for un redacted copies after trial the County again refused on October 16, 2008. The County's withholding of evidence shows their knowledge, maintenance and Liability goes all the way to the Pacific Ocean; their changes and requirements they have made down hill and uphill of my property; with their permitting actions since 2003 and before. The County Attorney in San luis Obispo Court have stated that these Documents were not in their possession? This was not true as we have found out later!This photo below is the County continuing to make improper drainage changes. Directed towards State Highway 1, 13th and Paso Robles Streets.
The County and the other defendants claim bill's for mediations that never took place, expert fees for experts that had information witheld from them and other fees totaling over $221,000.00 for their withholding of evidence. This is not acceptable.On December 2, 2008 five months after our first trial for inverse condinination the County of San Luis Obispo disclosed color photos and over 450 documents County_Documents_withheld_from_d... that had not been disclosed by the County of San Luis Obispo prior to our trial. The first photo shows the December 2000 overlay of State Highway 1 by Cal Trans and the ponding on the east side of the State Highway. Cal trans talked about the problem they had created in the January 10, 2005 OCSD above. The next photo is an ally way as seen above in another flooding lawsuit inwhich the County was involved. This ally has now been paved with the water headed directly towards State Highway 1. I invite the public to view the following Quotes, Photos and videos below. I invite the News Media to view the Communities storm water drainage channel today with County, Cal Trans, OCSD knowledge of Liability! Our new Jury Trial Date is set for February 9, 2008!
The underlying policy concern in inverse condemnation cases has less to do with deterring negligent behavior (as in tort law) than in preventing an individual private property owner from bearing a disproportionate burden of the costs of a public project (or costs incurred from the failure or inadequacy of those projects). Paterno v. California (Paterno II) (2003) Cal App. 4th 998, 1003; Locklin v. City of Lafayette (1994) 7 Cal. 4th 327; Belair v. Riverside County Flood Control District (1988) 47 Cal. 3d 550, 558; Holtz v Superior Court (1970) 3 Cal. 3d 296, 303. A public entity will be liable for inverse condemnation in areas historically prone to flooding, if its design, construction, or maintenance of a public improvement poses an unreasonable risk of harm to the plaintiff’s property, and the unreasonable aspect of the improvement is a substantial cause of damage. Arreola, 99 Cal. App. 4th at 739.
If the County had their way they would have the residents of Oceano Pay for their altering the Oceano Community's Historic Drainage path as seen in the first video above. This is not acceptable and I ask for the Community's Help! Please view the following videos, photos and security cameras along with other documented evidence. The Flooding of Highway 1 needs to end before other accidents occur and the and subsequent litigation comes from our local governments knowledge of their changes to the Oceano drainage system.The County of San Luis Obispo Attorney Hall, Hieatt & Connely, LLP (Clayton U. Hall) wrote Ms. Mauri McGuire--Carl Warren & Company February 6, 2007“However, I do believe that there was significant movement both in terms of the “fix” of the problem as well as a resolution of the plaintiff’s damage claim. As to the “fix’ the defendants did agree that it does not make sense to resolve the plaintiff’s damage claim unless the problem has bee rectified. Otherwise, subsequent flooding will cause subsequent litigation.” See County letters below attached. http://app4.websitetonight.com/projects/1/0/4/1/1041634/uploads/County_trying_to_make_a_Deal.pdf
The County Attorney Clayton U. Hall then goes on to state that "As noted above, the County did not contribute to any settlement offer. This is due to the fact that plaintiff's counsel and I have reached an accord that he will ultimately dismiss the County from all damages causes of action and the inverse condemnation cause of action. At this point in time he does anticipate keeping the County in the injunctive relief cause of action, as we are obviously an unnecessary party to the overall "fix" Specifically, the County needs to be involved in the "fix" as it relates to improvements at Railroad Avenue and to the east." "cc: Rita L. Neal, Esq. (CV 060384)--Debra A. Hossli, Risk Manager--M. Scott Radovich, ESQ.
The County's letter to their Insurance above should be looked into as the County's statements in the first video above show their contributing in the last few years to the cause of the flooding since 2004! Their actions prior are seen through out this Blog.
CAL TRANS, OCEANO COMMUNITY SERVICE DISTRICT AND THE COUNTY OF SAN LUIS OBISPO KNOWLEDGE OF OCEANO DRAINAGE AND CALTRANS ACTIONSCal Trans and the County knew of the dangers to State Highway 1 from the County of San Luis Obispo issuing Building Permits over the Communities, Caltrans and County's Storm Water drainage outlet, with the County and Cal Trans using the same drainage path to their retention basin pond, rather then implement a solution on site or downstream; Cal Trans entered into an agreement as far back as March 13, 1985 with the Oceano Community Service District, taking $5,000.00 of OCSD District (Community Residents) money for Cal Trans to correct drainage problems as seen below in Cal Trans photos rather than require the Oceano Community Service District to build a storm water retention area on site for a County Permitted Fire Station and OCSD Buildings. OCSD in 1983 obtained a prescriptive Easement right over Railroad property when they claimed use of this drainage channel, junction box and retention pond. They then began dredging debris into this Storm Water Drainage Channel!
The Following are Exhibits that were presented to the Court found in Discovery Showing County, Caltrans, OCSD Railroad Liability and knowledge of flooding west of State Highway 1 and their reasons for not fixing small problems On Highway 1 as seen in Caltrans chooseing to grade and shovel debris into the Oceano Community's Storm Water Drainage Channel as well as OCSD being allowed to daily dredge debris into the Railroads Storm Water inlet that fills up all of theirs retention pond!
Exhibit # May 1, 1985 “Contacted Rich Hill of the Oceano Community Service District about Highway drainage. I questioned him about the retention pond next to the packing sheds and who had authority over the location and construction of it. He said possibly everybody beginning with POVE S.P.R.R. and County Flood Control was involved. He also informed me that a Board member owned a house and wanted the water routed South on Highway 1to the corner and this Question will Be asked when we present the plans to the board. Bob McNew"Exhibit # 1785 May 14, 1987 “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.” Cal_Trans_Documents.pdfIf 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.”Exhibit # 1786 May 20, 1987 “The Second concern is that we fully inform the downstream owner or owners of the need for a drainage ditch clean out, or improvement. The State could look to the Oceano Community Service District or the County to be the lead agency when it comes to dealing with owners below the project.”Exhibit # 1788 August 2, 1987 “In our last meeting it was determined that the land owners downstream would object to a new 36- inch straight drainage pipe under the railroad and the County road which was proposed by the State because of probable flooding of the Baughman property as well as others in the low lands.”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)” Cal_Trans_Documents.pdfExhibit # 1795 November 28, 1989 “We have been concerned, however, that our construction work might generate additional tort liability. The work would not cure the flooding problem, and the “changed condition” could possibly shift blame from the actual responsible parties.”Exhibit # 1796 May 20, 1992 “The Railroad was unwilling to financially participate in this project, and as a result certain legal questions were raised. Downstream property owners opposed to this project could hold the participating agencies responsible for future flooding. These drainage changes may shift blame from the actual responsible parties.”
These photos below are Cal Trans Drainage photos regarding their highway drainage concerns in the 1980's Notice Cal Trans concerns in the late eighties with there photo showing Highway 1 draining in the Communities Storm Water Drainage Channel. The water actually drains into the channel as seen in this photo. Cal Trans Maintained this drainage channel at this time. Notice, how the water sets flat on Highway 1 with a little ponding in front of Oceano Market. The Car next to Oceano Market is slanted from the sidewalk into the street. Notice the power lines that have since been removed? The retaining wall on Cal Trans Right-Away is seen in this photo along with highway 1 being lower at this time as seen in front of Oceano Market. Notice ponding on the east side of Highway 1, not flooding as we see today!
Cal Trans and the County had prior made drainage course changes from Highway 1 to the Pacific Ocean in the late 60’s and early seventies; that can be seen in a Cal Trans Historic photo Slo-16-10 Dated August 5, 1953.
This photo down hill of State Highway 1 is representative of the County of San Luis Obispo 2002 Questionnaires that the County withheld from discovery and then produced only 1 document out of over 400 Documents dozens of whitiness's. This involves Cal Trans concerns for not correcting a known drainage problem on State Highway 1 as quoted below! Cal Trans had concerns of flooding the Baughman property and others in the lowlands of Oceano which happens to be half of the west side of Oceano. This photo involves changes made by the County Of San Luis Obispo on the County owned Airport property! The Questionnaires witheld from discovery have several of these residents statements, including an ex OCSD Director from the eighties. This is a history of documents discoverd involving Cal Trans, The County of San Luis obispo and the Oceano Community Service District quotes below. Cal_Trans_Documents.pdf
March 14, 1985 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."May 24, 1985 Cal Trans Oceano Drainage Correction From R.D. Mcnew Subject: Retention Basin on RailRoad Property Dennis Donovan, POVE, John Goni, Water Quality Control Board, Pete Hom, Jim Carpenter, Gary Simms and Bob McNew, Caltrans present. "We began the meeting by examining the present drainage conditions and discussing the conditions of the drainage prior to the expansion of the vegetable processing facility. We then discussed alternatives to lower the outlet of the drainage facility." Both Dennis and John agreed that the waste water from the vegetable washer should be seperate from the Highway drainage." http://app4.websitetonight.com/projects/1/0/4/1/1041634/uploads/Regional_Water_Quality_Control_Board_knowledge.pdfMay 14, 1987 Cal Trans File G. L. Simms Subject Oceano Drainage Problem " 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."May 20, 1987 Cal Trans Memorandum Robert N. Wright "The second concern is that we fully inform the downstream owner or owners of the need for a drainage ditch clean up, clean out, or improvement."August 2, 1987 Cal Trans meeting Pete hom, Gary Simms, John Wallace, Robert N. Wright "In our last meeting it was determined that the land owners downstream would object to a new 36-inch straight drainage pipe under the railroad and county road which was proposed by the state because of the probable flooding of the Baughman property as well as others in the low lands." Cal Trans Downstream Concerns of flooding the Baughman property as well as others! September 15, 1987 Cal Trans Memorandum Robert n. Wright a meeting was held in Frank Lentz office September 15, 1987 At that meeting were Pete Nom, Gary Summs, O.J. Solander, Richard Hill, John Wallace, Tim Smith, Glenn Priddy, Jim Granflatten and Bob Right. "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." The State Could Go ahead under an emergency condition and build the project as planned. Then the cost of the project would be distributed proportionally and both the Railroad and the County would be enjoined in that action (O.J. Solander)" Cal_Trans_Documents.pdfSeptember 25, 1987 Cal Trans letter to County of San Luis Obispo Glenn Priddy Cost estimate for County's part of drainage fix $9,310.00 by Gary Simms of Cal Trans 9/24/87November 30, 1988 Cal Trans Memorandum Fred Brebes shows Cal Trans maintenance of the drainage channel "9/1/83 Clean Ditch In oceano" "3/30/84 Clean Sand along curb from ditch" "1/1/86 Clean Ditch" 12/14/87 Clean trees from Ditch area"November 28, 1989 Cal Trans Memorandum Frank M. Lentz Deputy District Director Right of way subject Legal Opinion "We have been concerned, however, that our construction work might generate additional tort liability."May 20, 1992 in a Cal Trans Memorandum from Steve Hendrickson District hydraulics Engineer "The railroad was unwilling to financially participate in this project, and as result certain legal questions were raised. Downstream property owners opposed to the project could hold the participating agencies responsible for future flooding."When Cal Trans raised Highway 1 in late 2000, early 2003 and 2006 they chose to flood State Highway 1 and surrounding properties rather then correct a minor drainage problem!
They created ponding problems that had not been present before. They had previously discussed; and stated in a September 15, 1987 Department of Transportation Memorandum. “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).” Their inappropriate and unsafe actions of raising State Highway 1 in late 2000, early 2003 and 2006 effect more people then the County and OCSD. It is time to correct Cal Trans inappropriate Drainage changes since late 2000!This is Highway 1 Before Cal Trans started raising State Highway1 in December 2000 instead of correcting their known drainage problems. Notice the trees at the entrance to the Oceano Community Storm Water Drainage Channel are on Cal Trans Right-Away including the light pole that had been installed since the late Eighties. This light pole is a danger in it's present location on Cal Trans Right-Away. This photo was taken in 2008 after a van crashed into the light pole after hitting the sag of water that was once the Oceano Community's Storm Water Drainage inlet before Cal Trans and the County Of San Luis Obispo relocated this inlet to it's present location. THE FLOODING OF STATE HIGHWAY 1 CAN BE ELIMINATED.Cal Trans in late 2000 was maintaining the Oceano Community Storm Water Drainage Channel. As seen in this photo below with a Cal Trans loader outside of Cal Trans Right-Away. The second Photo shows Cal Trans removing the debris which Cal Trans no longer does. The Flooding of Highway 1 can be resolved if Cal Trans again takes responsibility for the drainage channel and Highway 1 debris removal. OCSD needs to yearly clean out the sedimentation that they dredge into the Railroads drainage pipe. OCSD needs to further remove their 6 inch PVC pipe from the Communities Storm Water Drainage Channel. The County of San Luis Obispo would need to lower the retention pond that the County, Cal Trans and OCSD all use. The County and the Regional Water Quality Control Board required POVE to raise this Pond in 1985.
The photos below shows, Cal Trans, overlaying and Raising Highway 1 in November and December 2000 with multiple layers of asphalt at the Oceano Community’s Storm Water Drainage inlet. Cal Trans had stated in their September 15, 1987 Department of Transportation Memorandum. “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.” Cal Trans has done this since late 2000! However this has caused many health safty problems.The Retaining wall seen in this photo above was removed by Cal Trans in 2003, as it was in Cal Trans 4 foot right a way and was a danger to the public from many accidents. The dirt seen behind this wall was not hauled away, being allowed to enter the State Highway 1 as seen below.This Photo shows the effects of Cal Trans allowing the debris from behind their retaining wall removed in 2003 to enter into State Highway 1 and then wash and be plowed by Cal Trans into the Oceano Communities Storm Water Drainage Channel instead of being removed by Cal Trans as seen in the 2000 photo prior.
This Photo of Cal Trans raising Highway 1 in 2000 shows the old sidewalk in front of Oceano Nursery before Cal Trans raised and replaced this sidewalk in 2003. Notice the State Highway patrol car on the old sidewalk with the previous asphalt a little higher then the sidewalk curb.This Photo shows the effects of Cal Trans overlaying of Highway 1 and their raising the height of Highway 1 in front of the Oceano Community's old Fire Station.This Photo was provided by Cal Trans and shows layers of asphalt with the Cal Trans retaining wall in the back ground and the light pole in Cal Trans Right-Away along with the tree in Cal Trans Right-Away. Cal Trans has raised the Highway since and changed the Community's Drainage inlet. This action raises the Oceano Community's drainage channel removing water retention from the railroad inlet pipe to State Highway 1!This photo shows the old sidewalk with no flooding of the business, however notice the ponding in front of the business and the sidewalk being lower then the electrical box in the sidewalk that had been installed in the late eighties for under ground utilities. The Ponding on the east side of State Highway 1 is from the Cal Trans late 2000 overly of State Highway 1. I Do not believe Cal Trans had engineered this overly and the effects it would have on the Oceano Community?Cal Trans Workers January 4, 2007 shoveling Debris off of State Highway 1 into the Cal Trans 4 foot Right A-Way and the railroads storm water drainage channel instead of Removing Debris from entrance of Oceano Community Storm Water Drainage Channel.Debris Shoveled by Cal Trans January 4, 2007 into the Oceano Community Storm Water Drainage Channel By Cal Trans Workers going outside of Cal Trans 4 foot Right-Away into the Railroads property in which Cal Trans Historiclly Maintained until 2000-2002 as noted in the Oceano 2004 drainage study preformed by the County of San Luis Obispo.This is a still frame from Security Cameras December 19, 2007 of Cal Trans plowing Debris into the Oceano Community's Storm Water Drainage Channel after a rainstorm in the middle of the night. In this security camera video still photo on the bottom left hand corner shows a Cal Trans grader work truck blade pointed towards the drainage channel with a worker in front of the drainage inlet. This was all caught on Security Cameras December 19, 2007 at 3AM?
Notice, Cal Trans Grader and position blade is pointed!
Security Video stills April 2, 2007 of Cal Trans shoveling debris into the Oceano Community Storm Water Drainage. Notice the Cal Trans worker in the drainage channel outside of Cal Trans 4 foot Right-Away Shoveling Debris.
Cal Trans Workers caught on Security Camerias shoveling debris off of Highway 1 into Oceano Community Storm Water Drainage Channel!
Please Review the Security Video April 2, 2008 of Cal Trans Returning to Oceano an Hour later then the previous video
Cal Trans coming back later to continue to shovel debris into the Oceano Community's Storm Water Drainage Channel. Notice Cal Trans is not coming back to remove debris?
This Security Video below is the November 26, 2008 rain storm we just had and Cal Trans is again shoveling debris off of State Highway 1 into the Oceano Community's Storm Water Drainag channel. Notice in the second video the the pile of debris Cal Trans shoveld into the drainage inlet being washed into the drainage channel?
This pile of dirt and debris was shoveld into the Oceano Community's Storm Water Drainage Channel November 26, 2008 by Cal Trans as seen in the video above and is still there today December 18, 2008
These are Caltrans provided photos dated August 13, 2002 of Cal Trans November and December 2000 raising State Highway 1 with asphalt overlay on the north side of State Highway 1 as can be seen viewing the utilities in the street along with lack of concrete gutter at the drainage inlet. This overlay created a flooding, ponding problem which caused damage to inventory at the front of Oceano Nursery from splashing of the Cal Trans raiseing of Highway 1 above existing community properties. This raise of State Highway 1 removed storm water retention capicity in the railroads Storm water drainage retention channel between the railroad storm water inlet pipe and State Highway 1.
Notice the underground utilities that had been installed in the late eighties. The sidewalk is much lower then these utilities.
Cal Trans knew of Problems and Dangers that they would create by raising State Highway 1 in late 2000 from their engineers and documents in their possession. They chose to ignore these Dangers that they would cause to the public when they raised State Highway 1 and then no longer removed Debris in the Oceano Communities Storm Water Drainage Channel as Cal Trans had Historically Maintained in which Cal Trans, Oceano Community Service District and The County of San Luis Obispo have all Historically used for their Storm Water.The County Of San Luis Obispo and the California State Regional Water Quality Control Board required Pismo Oceano Vegetable Exchange to install this berm and chain link fence around the County's, Cal Trans, Railroad and OCSD Storm Water retention pond raising the elevation around this retention basin in 1985. This photo was provided by Cal Trans. Oceano Community Service District pumping out the POVE pond from the drainage change OCSD had made in December 2002 on the Railroads property which dredges debris into the POVE pond from the OCSD 6 inch PVC pipe cut five feet short of the Railroads drainage inlet pipe. Notice the fence and berm around the retention pond required by County and the Regional Water Quality Control Board!
This Photo was taken By Cal Trans showing Oceano Nursery while they were preparing to raise State Highway 1, December 2002 again without correcting their known drainage problems. This is an intentional disregard for public safety by Cal Trans! Notice the Nursery not flooding with over a foot and a half of water on State Highway 1!
The photo below is a Cal Trans Supervisor in 2004 attempting to stop cars from cutting the corner on 13th and State Highway 1 from the raised road and sidewalk Cal Trans had installed higher then existing property.
In late 2002 and early 2003 Cal Trans then removed a retaining wall on the west side of Highway 1 allowing the debris behind it to wash into the community’s storm water drainage system. At this time Cal Trans removed a previously installed County of San luis Obispo bike lane curb on 13th street before installing their new sidewalk shown below. Cal Trans never replaced this County Curb! The photo below shows an accident with a thirteen year old girl after this curb change.
An Elderly couple had no place to excape impact with Cal Trans leaving the wall of dirt on their 4 foot Right-Away. The elderly gentleman later Died!The Cal Trans 2004 sidewalk attempt to stop cars from cutting the corner of the sidewalk they installed after they removed the County bike lane curb on 13th street; came after accidents in 2003 and early 2004 involving the little girl and an elderly couple. Cal Trans has continued to raise Highway 1 in 2006 ignoring their liability. Notice the little girls bicycle above under the car from her coming down 13th street and elderly couples car where the Cal Trans Retaining wall once was! Many accidents and injuries have occurred according to Cal Trans documents in wet weather and dry. Notice the danger even for a Cal Trans maitenance supervisor as he installs cones in hopes of stopping cars from cutting the corner of their new Cal Trans sidewalk after an accident had happend. Cal Trans in 2006 Raising State Highway 1 again after there 2002/2003 corecting their ponding problem that they had created in December 2000. Notice, the sign knocked down from an accident in wet weather flooding of State Highway 1 a few nights before!
Notice a prior elevation from a previous road before Cal Trans started plowing and shoveling debris into the communities storm water drainage channel between the RR inlet pipe and State Highway 1.
Oceano Community Service District flushing Water lines on Paso Robles Street after Cal Trans raised State Highway 1 in 2006.
Oceano Community Service District Water coming from OCSD flushing waterlines same day bringing debris to Community's Storm Water Drainage Channel, that Cal Trans chose not to correct from the signed March 13, 1985 Agreement with OCSD (Oceano Residents)!
Debris and Sedimentation being washed into Cal Trans, County of San Luis Obispo and Oceano Community Service District Storm Water Drainage Channel after Cal Trans Raised and restricted this Storm Water Retention between the RR storm water inlet pipe and State Highway 1!
Cal Trans 2006 creating a new ponding problem from their raising of State Highway 1 again
2004 a vehicle decides to take a detour instead of going through the flooded State Highway.The County of San Luis Obispo issued building permits in the late seventies and mid Eighties to the Pismo Oceano Vegetable Exchange and required them to alter the Oceano Communities Storm Water Drainage outlet that the County, Cal Trans, RR and OCSD use. See OCSD Letters to County, RR, POVE, on April 21, 1983 with OCSD claiming use of (prescriptive easement)“a natural drainage channel” running into a retention basin. OCSD Stated. “Because this is an established drainage channel, the district feels that its full design capacity should be available for use.” The Railroad responded back April 29, 1983. “ It would appear that the channel mentioned in your letter was probably created to handle storm water runoff, and not the purpose to which you now intend to utilize it.”The County ignored an agreement signed by Cal Trans and OCSD dated March 13, 1985 when the County and the State Regional Water Quality Control Board required POVE on March 27, 1985 to alter the Communities drainage outlet at Railroad street.!The POVE Pond below shows an elevation change required by the County of San Luis Obispo and State Regional Water Quality Control Board on March 27, 1985 requiring POVE to install a berm around the County, Cal Trans, Railroads, OCSD Community Storm Water Retention basin/pond along with a chain link fence around this pond as required in the County’s March 27, 1985 letter for POVE to acquire a final for a County construction permit. This raise in elevation was then brought to POVE attention and threatened legal action by Cal Trans on January 16, 1986 in a letter stating an elevation change from 13.84 feet above Sea level to 15.38 feet above Sea level?Cal Trans then wrote Southern Pacific Railroad on July 24, 1986 noting a silt problem which could only come from Cal Trans property as seen in Photos provided by Cal Trans. Cal Trans in their letter tried getting the Railroad to pay to make changes for their drainage system in which Cal Trans had already collected $5,000.00 from OCSD in a signed agreement between Cal Trans and OCSD on March 13, 1985 followed by a fully executed copy sent to OCSD by Cal Trans on April 4, 1985.The County prior on December 26, 1984 had notified POVE that their floor drain system that drains into a sump was not permissible as per uniform pluming code sections 302 and 303 after receiving a complaint from OCSD December 13, 1984. The County planning department signed off the POVE Construction permit May 22, 1985 after the County’s chief building inspector approved the POVE “floor drain system draining to a sump and then to retention pond approved by Fred Norton.” The County of San Luis Obispo's Cheif Building inspector. The County then permitted growth upstream from this blockage that added additional drainage into this now flawed County drainage system, as water travels down County Streets to State Highway 1 it brings dirt and debris with it that clogs the Railroads and the Oceano Communities Storm Water drainage inlet and outlet. The County at this time in the early 80’s was aware of drainage problems downstream on County property, caused by their prior expansion of the County Airport and the impacts to the Oceano Lagoon!There are many County statements in the Cal Trans documents showing why the County of San Luis Obispo has refused to take responsibility for their prior drainage changes.This is one of the documents the County had in their files and chose to withold from discovery showing a train accident and the OCSD PVC pipe in the Railroads storm water drainage pipe. This OCSD PVC Pipe runs 4500 hundred Gallons of water a day into this storm water drainage systemThese photos in the County possession from a County 2002 Oceano Community drainage study with over 450 other documents which where witheld from discovery by the County of San Luis Obispo and just provided to us on December 2, 2008 five months after our first trial for inverse condimination. These are photos that I had taken and provided to the County in their 2002 Drainage Study. They show Cal Trans, County and OCSD changeing the communities drainage since 2002. These are additional photos of a train derailment provided to the County in their 2002 Questionaire as you can see above 1 of 2 at the top of the previous document? County questionaire photos above of County maintained drainage channel downstream from Highway 1 in 2001 near Oceano lagoon. At this time this drainage was maintained by the County. The photos below where also witheld by the County in Discovery showing a larger drainage problem prior to 2004 on Highway 1 and Cienaga. Some of the 450 written documents talks about the County's knowledge of this problem at Cienaga. The next photo is where the Oceano Communities Storm water historically traveld onto County owned Property before the County had made downstream Drainage changes.The County of San Luis Obispo dredged and expanded the Oceano lagoon as this 1949 aerial Photo shows the way the lagoon previously looked in the early 50’s. The County has since taken no responsibility for the County’s Sedimentation, going into the Oceano lagoon from their drainage change through County owned Airport property. Cal Trans on November 28, 1989 and May 20, 1992 wrote memorandums talking about their tort liability downstream if they correct the drainage on Highway 1 where this water and sedimentation ultimately goes! In 1995 the County of San Luis Obispo allowed the Railroad to divide and sale there property for a profit without considering the County’s, Cal Trans and Oceano Community Service District’s use of the Railroads Storm Water Retention pond. The County did Require that Cal Trans Recieve an additional 10 feet easment on Railroad property for drainage purposes. This photo above shows the Railroads property before the County and Cal Trans changed the Community's Storm Water Drainage Channel. This photo was provided by Cal Trans from a 1973 Drainage study going to the Ocean This Cal Trans 1953 Aerial Photo used in Cal Trans prior drainage studies shows the Oceano Communities Historic Drainage path to the Arroyo Grande Creek, before the County of San Luis Obispo removed the Community’s Historic Sand Dune known as the Palace Hotel site. In the upper middle-right hand corner Railroad Housing is observed where the drainage channel is today. A sanitation line runs under this location today; would have had County of San Luis Obispo and Cal Trans involvement in it’s, installation followed by maintenance by OCSD.
1962 Aerial photo of Drainage changes made by County of San Luis Obispo on County owned Airport property in which the County Collects $30,000.00 per year rental income instead of storing the County's and States Storm Water runoff on!In this 1962 photo the Drainage path did not leave the Railroads property any differn't then it does today, however today we have flooding! You, can see the drainage path going the same direction as it does today.
This aerial photo was taken in 1969 after the drainage inlet change on State Highway 1. At the bottom of the Airport is a Storm Water Retention site with the drainage going south instead of west to the Oceano Lagoon as it does today. Notice new Airport paving where the palace hotel site once was!Notice the empty farm field in the 1969 photo behind the County's Storm Water retention pond on County Airport property. The County collects $30,000.00 per year rental income from this Farm Field which could retain the Oceano Community's Storm Water Drainage coming from Cal Trans, The County and OCSD propertys.
Notice below the Wetland habitat in this 1949 photo at the bottom of the County Airport runway. This is where the Communitys Historic Storm water Drainage traveled before the County changed this drainge course.Notice, old Railroad buildings where the drainage channel is today. The communitie's drainage water even exited the property as it does today, but without a retention pond used by Cal Trans and the County.Aerial photo before Airport. Notice the Historic Palace Hotel site Sand Dune and what was at the time Fountain ave. It would appear the County has made some major changes to the Oceano Communities drainage system.
THE OCEANO COMMUNITY SERVICE DISTRICTOceano Community Service District has been involved in drainage since forming their district in 1980; building their buildings and district well sites; not using OCSD property for onsite storm water drainage detention and retention, instead making a deal and paying Cal Trans in 1985 to dispose of their water along with Cal Trans water. The Community Service District was informed by Southern Pacific Railroad on April 29, 1983 of the intended purpose of their railroad inlet and outlet stating. “It would appear that the channel mentioned in your letter was probably created to handle storm water runoff, and not the purpose to which you now intend to utilize it.”OCSD choose later in the late 80’s early 90’s to install a PVC pipe directly in the RR Storm Water Drainage Channel and then directly in the Railroads inlet going against the Railroads intended use of this drainage channel. As mentioned April 29, 1983 by the Railroad. This shows OCSD claimed Priescriptive Easment over private property.
These photos show the Oceano Community Service District 6 inch PVC pipe ran directly into the Railroads intended use of the Oceano Community's Storm Water Drainage channel as OCSD was informed by the Railroad in 1983 of the Railroads intended use of this Storm Water Runoff System This pipe was installed as "A blow-off system is required on any large well that pumps water directly into the water system. The purpose of a blow-off system is to prevent a shock(water hammer to the system when a large well starts and stops." This system as stated by OCSD on June 7, 2005 pumps "( approximately 2500 gallons during start up and approximately 2000 gallons during shut down)."OCSD realizing for the first time in December 2002 of a potential problem that they had created with their well blow off system cut five feet off of their previous PVC pipe drainage change as stated "I had Dan saw off the 6 inch pipe and end it 5 feet in front of the curlvert so that there will be no danger of the pipe plugging debris at the entrance to the curlvert." This came from OCSD daily logs dated December 20, 2002. This un-enginered drainage change/improvement? 'on going construction' has caused the Railroad drainage system to finally stop working as OCSD now dredges debris into the Railroad pipe plugging the RR drainage pipe inside. This shows that no Stabilization is able to occur with OCSD ongoing drainage changes. OCSD has continually changed this system since 1984 knowing of soil erosion In 2005 after flooding in 2004 and then major flooding January 3, 2005 OCSD again weed abated the Railroad property, however they chose to leave their 6 inch PVC pipe directly in the Railroads intended use of this channel for Storm Water runoff. Notice the old metal pipe that OCSD uncoverd left in the drainage channel. OCSD was aware of how sedimentation/erosion works from their June 7, 2005 institutional recollection letter about the installation of the six-inch well blow off line at Well # 8With this cleaning of the drainage channel and OCSD useing Arroyo Grande equipment and personell to fully dredge out the Railroads drainage system, the flooding stopped for the rest of 2005. For the rest of the year many rains came and washed debris off of Highway 1 into the drainage channel without fruther clean-up later in the year by OCSD. As stated in the OCSD june 7, 2005 letter "During the Summer months (dry season) the well is normally operated once a day." This would be 4500 gallons of water and debris dredged into the RR drainage system daily!
At the Jaunuary 10, 2005 OCSD video taped meeting with the County and Cal Trans present regarding the OCSD pvc pipe in the community's storm water drainage channel, OCSD States "that issue is being addressed." OCSD has continued to ignore this pipe in the community's storm water drainage channel. This pipe is not in the vicinity of this drainage channel it is in the community's storm water drainage channel! Notice, how the PVC pipe blocks debris at the Railroads drainage inlet pipe and that OCSD was not able in their weed abatement to remove the sedimentation around their pipe as we had seen previously a Cal Trans photo of the drainage channel cleaned without the OCSD pipe blocking debris in the drainage channel. This photo was taken in January 2006 after the whorst ever flooding of Highway 1 since 2004 and 2005 and shows the metal pipe that OCSD had previously uncoverd and left blocking the Railroads intended use of this storm water drainage system. The debris field in this flood went another 400 feet north past this blockage.As you can see from these photos with the OCSD PVC pipe now cut five feet short of the Railroad inlet any time OCSD operates there Well # 8 they are going to dredge debris into the Railroads intended use of theirs and the Community's Storm Water Drainage Channel and Railroad drainage pipe.Notice the debris after a rain storm washed directly in front of OCSD Well # 8 PVC pipe that comes from under Highway 1 directly into the communities Storm Water Drainage Channel.Oceano Community Service District well # 8 running and pusing debris into Railroads drainage inlet in 2004 in the middle of summer after the OCSD 2004 weed abatement of the railroad property in which they left the debris on the ground for errosion control as they stated to the newspaper. This photo as seen of OCSD dredging debris and water into the Railroads pipe goes against the December 20, 2002 Daily log of OCSD stating "I Had Dan saw off the 6 inch pipe and end it 5 feet in front of the curlvert so that there will be no danger of the pipe plugging debris at the entrence to the culvert."
Debris dredged into Railroad pipe from OCSD on opposite end from RR inlet.This is more of the debris left on the ground in the OCSD 2004 weed abatement while the Community's Storm Water Drainge Channel fills up with water from Well # 8 running having already clogged the Railroad pipe. Notice the stumps from trees cut down by OCSD. In the 2005 weed abatement photos above OCSD had these Stumps removed. OCSD By actually doing maintanence to the Railroads pipe and the POVE pipe have shown in there daily log January 3, 2005 that the flooding of Highway 1 and my property can be stopped with just doing maintanence of unclogging blockages in the Railroads and POVE pipes from OCSD dredgeing debris into this drainage system all year!The Oceano Community Service District in the mid 80’s had installed a well on the east side of Highway 1 and then ran a 6 inch well blow off line under Highway 1 directly into the Railroad’s drainage inlet. This pipe today causes sedimentation and debris to build-up especially from OCSD weed abatement practices in 2004 and 2005 of leaving debris on the ground for erosion control?
The Photos below show OCSD running their Well and dredgeing debris into the Railroads intended use of there drainage system. The Railroad has allowed OCSD to do this going against the Railroads own advice.This photo was taken at the same time with the Railroads drainage pipe clogged OCSD water had no other place to go other then flooding Highway 1. This is more water then 4500 gallons! Notice, from this photo the true sag in Highway 1 where a previous drainage channel once left Highway 1, also notice the Cal Trans light pole and tree in their Right-Away! All of this water is from OCSD running their Well #8!These are OCSD employees only shoveling debris to the edges of the drainage channel, without removeing this debris from the Railroads drainage channel.
Notice the PVC pipe that OCSD Ignores and where they are shoveling this debris! OCSD maintaining debris that they had dredged into the railroads drainage pipe system. This compacts this drainage system with 4500 gallons of water daily!The Debris on the ground to the right was left from the OCSD 2004 weed abatement for what they said was errosion control.
UNION PACIFIC RAILROAD/SOUTHERN PACIFIC TRANSPORTATION COMPANYUnion Pacific Railroad/Southern Pacifc owned the inlet and outlets for the Oceano Community’s drainage in the late seventies and mid nineties and allowed their tenant Pismo Oceano Vegetable Exchange after recieving building permits from the County Of San Luis Obispo to build over the railroad’s own intended purpose of their railroad inlet and outlet. The Drainage system traveled the same direction as seen in the 1962 aerial photo proviously above. They were aware of the Oceano Community Service District 2004 weed abatement and the debris left on the ground from this weed abatement for erosion control in 2004 by OCSD as they were billed in 2004 and 2005 for weed abatement and later debris removal. Southern Pacific railroad contacted OCSD in 1983 regarding drainage issues and the intended use of the drainage channel on Southern Pacific property.August 8, 1985 Cal Trans Communicated with Southern Pacific RR on regarding Cal Trans plans to change the drainage system going under Southern Pacifics RR tracks.May 12, 1986 Southern Pacific RR wrote Cal Trans stating that they had no objection to Cal Trans making drainage changes under their tracks.July 23, 1986 Cal Trans wrote Southern Pacific RR to attempt to get the Rail Road to enter into a service contract in which Cal Trans and OCSD would pay $12,000.00 and the railroad would construct and maintain the new culvert. Southern Pacific wrote back to Cal Trans February 17, 1987 having no objection to allow the state to make drainage changes however expecting to be reimbursed for RR inspection costs concerning this project.September 25, 1987 Cal Trans wrote the County Of San Luis Obispo showing the full cost for the Railroads proposed drainage solution to be$15,070.00 and a grand total to fix this whole drainage system after previously taking $5,000.00 from Oceano residents to be $43,295.00November 28. 1989 Frank M. Lentz of Cal Trans in a Memorandum to Robert j. Derea Cal Trans Legal Division. Talks about a July 1988 tenative plan to take legal action against Southern Pacific RailroadMay 20, 1992 Steve Hendrickson of Cal Trans writes in a Cal Trans Memorandum of a drainage project was to be funded by Cal Trans, Oceano Community Service District, San luis Obispo County and the Railroad. Cal Trans the n writes. "The railroad was unwilling to financially participate in this project, and as a result certain legal questions were raised. Downstream property owners opposed to this project could hold the particpating agencies responsible."'To Date, no direction has been recieved from our legal division nor has the railroad or it's lessee proposed a solution." These are Railroad employees maintaining and working on their drainage system in 2007 the debris that they shoveld onto their bank is still there today! Notice the OCSD pipe higher then their debris removal? The Concrete Bag that the Railroad employee is being directed to remove was installed to improve the community's drainage system by Cal Trans in December 2002. This Concrete bag was then left in the Railroads drainage channel by Railrod employees. Again OCSD 2005 Weed abatement photo below with POVE maintenence Supervisor above in 2004/2005 viewing OCSD PVC pipe blocking drainage channel. This Pipe as OCSD wrote June 7, 2005 pumps 4500 gallons of water daily. Notice the debris that goes with this 4500 gallons of water daily!In 1995 the Railroad knew of drainage problems from their property from Cal Trans however, they decided to start selling their properties in Oceano for a profit and sold POVE their property for a profit at which time drainage easements were recorded with the County of San Luis Obispo along Highway 1 giving Cal Trans an additional use of 10 feet Offer Of Dedication For Road And Drainage Purposes. The only use Cal Trans has taken of their property since is removing a retaining wall and allowing their debris to go into State Highway 1 and then shovel and plow this debris into the Oceano Communities’ Storm Water Drainage Channel.Pismo Oceano Vegetable Exchange before purchasing their property from Southern Pacific Railroad was allowed by the County Of San Luis Obispo to build over the Community’s Storm Water Drainage outlet with the County Of San Luis Obispo knowing of the County Airport changes made downstream that had caused flooding on Fountain Ave in which the County Of San Luis Obispo had previously been sued for!On December 26, 1984 a County Building inspector notified POVE that their floor drain system that drains into a sump and then is pumped into an onsite retention basin is not permissible as per the Uniform Plumbing Code sections 302 and 303.On December 13, 1984 the Oceano Community Service District Notified the County that Regarding POVE’s Reconstruction they would “not allow wash water from the POVE vegetables or floor wash water to enter into its sanitary sewer system.” Today the County of San Luis Obispo, Cal Trans, Oceano Community Service District, Union Pacific Railroad all use the retention holding basin for their Storm Water Runoff mixed with POVE’S Vegetable Wash Wastewater and Sludge.
The Regionial Water Quality Control Board is involved in this drainage system from a March 27, 1985 letter from the County of San Luis Obispo, Department of Public Health involveing the Regional Water Quality Control Board and their knowledge and use of this improper drainage system: Documents from the RWQCB show POVE was to “Submit an application, to the RWQCB for a waste discharge permit.” One has not been found to date. A May 24, 1985 Cal Trans letter regarding the RWQCB acknowledges the wastewater from the POVE vegetable washer should be separate from Highway Drainage. A State of California Regional Water Quality Control Board Staff Report July 11, 1997 states that the POVE retention pond is used primarily for storm runoff from nearby streets.The County’s 2003 drainage documents and the 2002 drainage Questionaires withheld from Discovery by the County Of San Luis Obispo show the County’s concerns downstream and that the fact that the County collects rental income of approximately $30,000.00 per year down stream. This County property downstream could and should be used to store the County’s, Railroads, Oceano Community Service District and Cal Trans Storm Water Runoff, making Highway 1 safe again!The Photos of Oceano Market/Gas Station flooded along with highway 1 closed, and my property, should be a concern to the County and Cal Trans. It is time for the County and Cal Trans to correct the problems that they have created.Cal Trans documents written to the County of San Luis Obispo dated September 25, 1987 showed a fix to the small drainage problem at the time before OCSD had to install their 6 inch PVC pipe directly into the Oceano Community's Storm Water Drainage System because Cal Trans had reneged on their agreement with OCSD.This fix would would have only cost the County, Cal Trans and the Railroad only $43,295.00 to fix. The Oceano Community Service District had already contributed $5,000.00 for their share of this fix rather then use their property for the use of their Well Discharge and Storm Water Retention! It is unfortunate that this total drainage fix would have only cost $48,295.00 for all the parties involved!
Appealing the August 5, 2008 decision regarding inverse condemnation and then the January 5, 2008 decision ultimatly stating:
1) Judge Martin J. Tangeman cited the wrong case regarding inverse condemnation, when he cited Skoumas v. City of Orinda instead of Skoumbas v. City of Orinda. Judge Teresa Estrada-Mullaney in her January 5, 2009 ruling regarding Judge Tangeman cited the Right case!
2) Judge Tangeman directed verdict was improper on inverse condemnation as seen in Skoumbas v. City Of Orinda.
3) The County of San Luis Obispo was allowed by Judge Tangeman to produce one document out of several hundred not disclosed during trial that was never disclosed prior to trial that was very predudicial as it took the County of San luis Obispo until December 2, 2008 to disclose the rest of the documents that went with this document. Judge Tangeman used this one document in his decision august 5, 2008!
4) The County of San Luis Obispo in their 2004 drainage study chose to misstate the Baughman drainage study questionnaire regarding drainage coming off of Highway 1. It has been learned that the Boughmans have sued the County in the past for flooding their property and that the County settled this claim with the Baughmans. In the County Of San Luis Obispo August 22, 2008 Motion for reconsideration and motion for new trial P. 3 Statement regarding the summerized responses that the County chose not to include show flooding of the Baughman Property instead of Highway 1.
5) Regarding Statute of limitations was not applied properly with the date of stabilization changeing with Caltrans drainage and maintenance changes as seen in the County documents withheld from discovery. Caltrans in 2000, 2001, 2002, 2003, 2006 made drainage changes to Highway 1, 13th and Paso Robles streets as evidence was presented to the Court and seen in documents withheld from discovery by the County of San luis Obispo provided December 2, 2008.
6) OCSD regarding Statute of Limitations/Date of Stabilization made drainage changes in the Oceano Community's Storm Water Drainage Channel in 2001, 2002 and then preformed hap hazard maintenance all along as testified to at trial and seen in photos.
7) Easements all parties involved have obtained prescriptive easments as with OCSD notifying the County, RR and POVE in 1983 of their intended use of this storm water drainage system. Exhibits # 1756--
8) OCSD Claimed a Prescriptive easment of the POVE pond Exhibit #1756
7)The County and Caltrans show their use of the Railroad retention pond as far back as 1985 when the County required this pond raised.
8) Causation, the wrong Causation was used according to Skoumbas v. City of Orinda that was cited February 2, 2009 in Judge Mullany Notice of Entry Of Judgment. Judge Tangeman viewed the evidence of Caltrans Grading and Shoveling debris into the Storm Water Drainage channel. Judge Tangeman commented on the OCSD pipe dischargeing water into the RR pipe however chose to blame POVE for this debris clogged in the RR Storm Water Drainage pipe that came from Caltran, County, OCSD and Raiload Property!
9) The judgement on the Pleadings was improper Using the first phase ruling against the second phase.
10) The Court made an error by not allowing the remaining causes of action to go to trial.
11) The Judge paid no attention to our engineers expert's substantial factors analysis without opposing evidence. A Court shold not be allowed to dismiss this evidence without making it clear why!
1) The Trial Court erred when they cited Skoumas v. City of Orinda on August 5, 2008 instead of Skoumbas v. City of Orinda. In Skoumbas v. City of Orinda Caltrans would be required to maintain the drainage channel that they had a history of maintaining from 2002 back to the early 80's and the Oceano Community Service District would not be allowed the use of their pipe in a drainage system without maintenance.2) Caltrans, County and OCSD each would have been found to have acquired a Prescriptive Easement onto and through Railroad Property from documents presented to the court!3) The Trial Court erred when they changed testimony of the whiteness's at trial statements.4) The Trial Court erred when they ignored the evidence below and above of Caltrans and OCSD maintenance Actions.5) The Trial Court erred when the County of San Luis Obispo was allowed to enter evidence not disclosed in discovery. They erred when new County evidence withheld from discovery showed Caltrans maintaining the Storm Water drainage channel in the Summer of 2002. They Erred by withholding the knowledge of the Baughman property flooding before State Highway 1 flooding in 2002.County_Discovery_Abuse_Baughman_...6) The Trial Court erred when they saw the photo and video evidence of Caltrans shoveling debris into the drainage channel since December 2002 after caltrans had raised State Highway 1.
State Hwy 1 Drainage goes to the Pacific Ocean and involves the Coastal Commission, State__Caltrans_County__RWQCB__D... The County and State need to act responsibly!2)) If the trial Court had cited Skoumbas instead of Skoumas they would have read JAMES ARREOLA et al., Plaintiffs and Respondents, v. and would have unerstood government liability!
Exhibit # 1278 shows a train derailment over the drainage channel inlet. The OCSD pipe is in this Railroad inlet and not in the vicinity as stated by the trial court!Exhibit # 1337 is this same PVC pipe again in the Railroad drainage pipe inlet damming debris and restricting water flow. As seen in this photo with the water line on this pipe my property did not flood from this storm event!Exhibit # 1338 as cited by Judge Tangeman immediately after this storm shows this debris blocked by the OCSD pipe placed directly into this Railroad storm water drainage inlet pipe! This photo of this pipe used as evidence by Judge Tangeman shows that the trial court erred in their assumption that this pipe was in the vicinity!
Exhibit 1288 does not show the POVE pipe blockage Judge Tangeman Stated!Exhibit # 1339 # 1396 Show the OCSD Haphazard Maintenance drainage change in December 2002 after they realized they had a potential problem an 12/29/04Exhibit # 1341 dated 1/4/05 after a storm shows this OCSD pipe dredging debris into the Railroads storm water drainage channel!Exhibit # 1342 after a storm shows this OCSD pipe dredging debris into the Railroads storm water drainage channel and backing up to the State Highway from the debris that OCSD dredges into this Railroad inlet!Exhibit # 1058 is Dan from POVE Viewing the Height of this particular flood!Exhibit # 1102 Show the OCSD pipe damming and blocking debris at their Well # 8 PVC pipe!Exhibit # 1351 dated 8/6/07 shows the OCSD Well # 8 PVC pipe dredging debris into the railroads 24 inch storm water drainage inlet pipe!
Exhibit # 1347 dated 8/6/07 shows the State highway 1 beginning to flood from the OCSD Well # 8 Pipe Dredging debris into the Railroads storm water Drainage inlet pipe!Exhibit # 1536 shows the State highway during a rain storm as Caltrans had graded debris off of the State Highway and this debris is seen washing back into the highway and into the community’s storm water drainage channel!
Exhibit # 1536 is where Caltrans had removed their retaining wall in 2003!Exhibits # 1488, 1517, 1541, 1514, Shows Caltrans Grading and Shoveling Storm Water Debris into the Oceano Community’s Storm Water Drainage Channel! This can be seen in videos on my blog!Exhibit # 1523 Shows Caltrans 1/4/08 pumping out the POVE pond that Caltrans, County and OCSD all use. This water goes to our Pacific Ocean!Exhibit # 1464 shows Caltrans in 2000 Raising the State Highway 1 as the had stated they could do in 1987 stating: 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.”
Exhibit # 1464 Shows their retaining wall on their 4 foot Right-Away which was removed in 2003!
Exhibit # 1467 shows Caltrans maintaining this drainage channel!Exhibits # 1637 and 1634 show Fountain avenue and the Baughman property flooding before State Highway 1 began flooding!
Substantial Factors Drainage changes and hap hazard maintenanceJudge Tangeman States Regarding Caltrans: “Nor was there Substantial evidence that debris accumulated within the States right- of-way (as opposed to the debris accumulated on private property outside the boundaries of the right-of-way) contributed in any meaningful way to the problems in the operation of the drainage facilities on Railroad and POVE properties.”1) Caltrans Raised State Highway 1 in December 2000 Exhibit # 1462, 1463, 1464, 1465, Caltrans photos Exhibit # 1468, 1469, 1470 of flooding east side of Highway2) Caltrans changing drainage maintenance of drainage channel as exhibits in 2000 showed Caltrans maintenance of this channel. Exhibit # 1466, 1467,3) Caltrans Railroad drainage inlet change December 2002 with Concrete bags installed at Railroad 24 inch pipe in channel outside of Caltrans Right-Away. Exhibit #1490, 14914) Caltrans Raising State highway 1 13th and Paso Robles Streets in 2003 Exhibit # 1471, 1472, 1473,1474,5) Caltrans 2003 Drainage Change in removing a retaining wall on their property without removing debris behind wall, then allowing debris to wash into State Highway and then be graded into drainage channel as Exhibits presented to the trial court showed Exhibit #1463, 1464, 1475, 1476, 1477,1478,1479,1480, 1481,1482,1483, 1484,1485,1486,1487, 14886) Caltrans retaining wall Debris left in hwy and graded to side of State Highway not removed by Caltrans allowed to wash into drainage channel Exhibit # 1475, 1476, 1478, 12/29/04 Exhibit # 1479, 1477 12/31/04 Exhibit # 1480,1481, 1/1/05 Exhibit # 1482, 1/3/05 Exhibit # 1483 1/7/09 Exhibit # 1484, 1485, 1486, 1487, 1488 3/22/2005 1530, 1531, 1535 1/26/2006 , 1533,1536 1/27/08 1527 1/26/08 1520 2/8/20077) Caltrans Raising State highway 1 in 2006 Exhibit #1498, 1500, 1501, 15021503, 1504,1505, 1506,1507,8) Caltrans shoveling debris into drainage channel 1/4/2007 Exhibit # 1516, 1517, 1518, 1519 of Caltrans supervisor shoveling debris into drainage channel. Exhibit 1513, 1514, 1515 of Caltrans employees shoveling debris into drainage channel9) Caltrans Shoveling Debris into drainage channel Exhibit # 154110) Caltrans four foot Right away Exhibit # 1520 1527, 1530, 1537,1538,1539, 1540, 1543, 1542, 1525Judge Tangeman States Regarding Oceano Community Service District:11) OCSD Drainage Change 2001, 2002 Exhibit # 1768 Phil Davis Log Entries to Railroad drainage channel and inlet.12) OCSD flushing debris from their property into drainage channel Exhibit # 1450 1/19/08 1541 6/7/0813) OCSD POVE Pond Maintenance Exhibit # 1433, 1434, 1447, 1440, 1442, 1443, 1436,1437, 1439, 1444 1/3/200514) OCSD maintenance of their PVC pipe in Drainage Channel Exhibit # 1425, 1426, 1427 1/7/0815) The Trial Court Erred with the July 10, 2008 Court Reporters Transcript regarding OCSD pipe being installed in 1985 Exhibit # 1758 As Caltrans Photos Exhibits # ?????? show P8216) The Trial Court Erred P. 83-88 when they herd testimony of discharge into the storm water drainage system by OCSD P. 84 no permission. P85 Permission from the County Health Department exhibits 1331 and 1332 admitted. 1336-1337-1338 admitted and seen by the court 1336-1343 OCSD is seen to maintain this channel as the Trial Court saw17) The Trial Court Erred P.96-1112 OCSD Maintaining pipe/drainage channel removing leaves and branches with the rest of the daily logs showing maintenance that did not exist prior to 2001!18) The Trial Court from the OCSD Testimony P11 and 12 Of their August 5, 2008 decision ignored the real culprits using the drainage channel by altering the purpose of this channel!19) The Trial Court erred with the minutes of Exhibit # 1764 p.110 July 10, 200820) The Trial Court Erred P 112 July 10, 2008 as they later admitted one Oceano Drainage Questionnaire showing the relevance of this exhibits from testimony by Caltrans!21) The Trial Court Erred in their July 10, 2008 Statement P. 7 “In addition, Mr. Davis testified that plaintiff had a history of complaining about flooding prior to December 20, 2002, when he met the plaintiff on site and cut the Oceano Community Services District (“OCSD)” drainage pipe in the vicinity of the culvert.” Documents withheld from discovery showed flooding concerns on Fountain Ave and Airpark involving Mr. Davis. P. 102 “might flood his property” P.103 July 10, 2008 Answer “It is in – I think Mr. Bookout thought that possibly the pipe going inside the culvert was restricting the flow.”22) The Trial Court Erred P7 in their August 5, 2008 in regards to Mr. Suttons Testimony as he was not employed by POVE in 2000. Mr. Sutton did not arrive in Oceano in 1996!23) The Trial Court Erred P. 8 regarding testimony of Mr. Brebes who retired from Caltrans in 2002. Exhibits1766 and 1767 that the court sustain show brebes involvement in flooding on Fountain Ave and Airpark. Documents withheld from discovery by the County of San Luis Obispo show Caltrans Raising the Highway with Brebes involved in this drainage change.Judge Tangeman States Regarding the County of San Luis Obispo “there was no showing of the County’s responsibility for designing or maintaining the drainage channel or drainage facilities immediately downstream from Plaintiff’s property.” He ignores drainage changes P20 July 10, Statements by County!24) County Of San Luis Obispo Testimony P. 34 The Court: “The “Problem Area” Being Highway 1 And 13th And Paso Robles.” The Witness: The Problem – As Far as fixing the drainage on the lot, the – The problem was the impact of the fix on the downstream property owners, not that – not that something down there needed to be fixed in order to solve the problem upstream.”The Trial Court States P. 32 Yes. “And so why is flooding on Fountain Avenue relevant to this particular, given the witness’s answer that he’s not familiar with that issue?”Ms. Thurmond P. 33 “The Drainage problem, we haven’t even defined the drainage problem. Were getting hung up here. The problem is flooding of Bill Bookout’s property. The problem is not the overall Drainage problem in Oceano. We could go on for years on that.The Trial Court: “No, I understand. But I thought we had limited the questions to the Bookout Flooding problem.25) Exhibit # 1769 Oceano Drainage and Flood Control Study. This Study explains the County’s Responsibility down stream.26) Exhibit # 1769 shows County Changing of evidence Baughman property 2002 Community Drainage & Flood Control Study Questionnaire Withheld from discovery by County of San Luis Obispo. This Questionnaire was provided after trial and admitted into evidence.27) Exhibit # 1875 Construction Permit28) Exhibit # 1762 County Drainage Channel Behind Fountain Avenue next to Baughman Property Questionnaire withheld by County from Discovery!29) Exhibits #1766 and 1767 1770 Judge Tangeman “Sustain”--- County’s responsibility for designing or maintaining the drainage west of State Hwy 1!30) Exhibit # 1790 9/25/87 County’s responsibility for designing or maintaining the drainage West of State Highway 1!31) Exhibit 1783 County Knowledge per P. 15 County Testomony letter dated 7/86?32) Exhibit 1731 County Knowledge per P. 1733) The Trial Court Erred stating Plaintiff has failed to prove defendants have acquired a prescriptive easement Exhibit # 1756 July 10, 2008 Court reporters transcript P.55 By Mr. Belsher “Seventeen fifty six, the first letter is a letter to the San Luis Obispo County Flood Control District and it relates to discharges at the problem area.” The Court “ So now there’s no objection. Seventeen Fifty Six will be received. Is this one page of three Pages? Mr. Belsher “Three pages your Honor.” The Court All Right. It’s Received.” To the County, POVE and Railroad notice of use of drainage channel34) Exhibit 1787-1790 Caltrans Drainage responsibility for repair to drainage system proposal replacement of the drainage culvert.35) Exhibit 1805 Curb Gutter and sidewalk drainage changes U.S.H.A.36) Exhibit # 1874 Admitted P. 65 County Building permits 1875 construction permits37) P66 July 10, 2008 County attorney admits County drainage system leading to State Hwy 138) The Trial Court erred July 10, 2008 P.75-76-77 when they took Mr. Priddy as an expert at the POVE pond into consideration
39) The Trial Court erred with their knowledg of the County drainage retention area that the County collect $30,000.00 per year rental income from in their 2004 drainage Study
3.5.1.1 Alternative 1A: Detention/Retention FacilityOne of the basic problems with drainage in the lower elevation areas of Oceano is that when the Arroyo Grande Creek Channel is flowing near capacity, storm drainage outfalls with flap gates remain closed and runoff cannot flow by gravity into the levied channel. This alternative would establish an area on the north side of the levee as a designated flood area. During large storm events, if storm drainage outfall flap gates were closed, then this designated flood area could temporarily store runoff until flow in the channel receded.
The County’s Airport Enterprise Fund owns property adjacent to the channel that could be used as a detention basin, assuming significant issues are adequately addressed. This solution would likely mean that the Recreational Vehicle (RV) storage currently operating on airport property would be reduced or removed to accommodate a detention basin. The proposed location of the detention facility is shown on Figure 6 of Appendix A. Using this site as a detention facility would reduce or eliminate a source of revenue for the County’s Airport Enterprise Fund. This money is used to fund Oceano airport operation and maintenance. Theannual cost of replacing this revenue source must be included in this alternative’s economic analysis.
If removing the RV storage from County property is unfeasible, then there is also agricultural land that could be purchased and designated a flood area. Little or no agricultural production on the designated areas could occur during the wet winter months. Either of these locations would accept runoff from upstream areas and temporarily detain it until the Arroyo Grande Creek Channel flows subsided, then runoff would either flow by gravity or be pumped into the creek.The amount of land necessary would depend on the location of the detention basin. For study purposes, we assumed approximately 5 acres would be necessary to construct a detention basin.Two other locations have also been identified as alternative detention basin sites and are shown in Figure 6. One site sits on airport property between the south end of the runway and Delta Lane, but is subject to restrictions in use (similar to the area currently used for RV storage). The second site is on private property, north of Ocean Street and west of Railroad Avenue. These sites are mentioned for information purposes only.
The location of existing infrastructure and proximity to the Arroyo Grande Channel make the RV Storage property and the agricultural field the two most viable sites. However, if the project cannot be implemented on either of these sites, then other locations should be pursued.RV Storage Property 4Discussion regarding the RV storage property warrants more detail because the development of this site as a detention/retention basin would increase the complexity of permit authorization. The RV storage property is County owned, however, the property was acquired using Federal Aviation Administration (FAA) funds for the primary purpose of providing a Runway Protection Zone (RPZ) for the Oceano airport. Also, the development of the airport property and major maintenance is accomplished using FAA funds. The County must obtain FAA4 See Appendix H for a detailed summary of the County’s General Services Department Review.3. Engineering and AlternativesSan Luis Obispo CountyOceano Drainage and Flood Control Study3-9approval prior to any change in use of any airport property, including the RV storage property, since this waspurchased using FAA funds. Since the RV storage property is a source of revenue, changes to land use couldadversely affect the funding of other County airport operations. Because of these reasons, new or differentproperty uses are extremely sensitive and must be directly tied to improvements or optimization of airportproperty uses.A major issue with using the RV storage property is the potential conflict between the attraction of waterfowl tonew drainage features within the vicinity of the Oceano airport take off and runway zones. According to FAAdocuments, any new land use practices that attract or could sustain hazardous wildlife populations on or nearairports could increase potential for wildlife aircraft collisions. Siting criteria could influence the selection of adrainage basin south or north of the airport runway.County General Services staff indicated that there was a potential for use of airport property for drainage andflood control facilities, providing the following could occur: The County’s Airport Enterprise Fund would need to receive fair market rent for the use of theproperty. The revenue collected would need to be replaced since this annual revenue collection is usedto operate the airport. The County estimates that approximately $30,000 is collected annually. Reviewof Figure 6 in Appendix A shows that less than half (Lot 40 only) of the property would be used as adetention basin. Therefore, for the purposes of quantifying the project costs, only a starting cost of$15,000 per year with annual Consumer Price Index (CPI) adjustments over 25 years is assumed as areplacement cost. However, in reality, the rental costs would continue in perpetuity. The proposed drainage basin would need to show a benefit to the airport in order to encourage FAAapproval in change of land use. Any proposal for new airport property use for drainage facilities mustobtain FAA’s review and approval prior to any formalization of such concept use. The potential conflict between waterfowl and aircraft would have to be addressed.The County’s General Services Department is in the process of initiating a Master Plan update for the OceanoAirport, and will subsequently prepare an environmental impact report (EIR) and National Environmental PolicyAct (NEPA) document. The Master Plan update could potentially include drainage features that benefit theairport and the community. The Master Plan could possibly include the evaluation of wildlife attractants inmore detail than is required for this drainage study. The District should work with General Services in exploringthe possibility of incorporating drainage features that also benefit the community of Oceano.Benefits and ConstraintsIn addition to the items discussed above for the RV Storage Property, the following benefits and constraints areidentified. To a certain extent, these areas already flood, however any upstream storm drainage improvementwould likely increase the depth and duration of flooding in these areas. If the agricultural land is selected, thenproductive acres would be taken out of commission for a limited amount of time during the winter, growingcrops would be damaged or destroyed, and easements would have to be acquired from private property ownerswho may not be receptive to selling a flood easement.
Alternative Costs As summarized in Table 3-2, if the County’s Airport Enterprise Fund parcel is used as the site of a proposed detention basin, then the cost of the alternative is approximately $1.75 million. If purchasing a flood easement on private agricultural land is required for this alternative, then the costs could decrease to approximately $1.23 million as summarized in Table 3-3. For purchasing a flood easement on private property, this study assumed that a total of 5 acres would be needed and the easement would cost approximately $100,000 per acre for a totalof $500,000.
December 2008 Letter Written to California Coastal Commission in hopes of the Coastal Commission helping in seeing the above drainage changes are taken care of.
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These are Question I have asked of the Regional Water Quality Control Board on February 21, 2009 that should not only be answed to myself but, publically as this drainage issues affects all California Residents!From: Bill Bookout [mailto:Pismobeachdiveshop@charter.net] Sent: Saturday, February 21, 2009 11:23 AMTo: 'mthompson@waterboards.ca.gov.'Cc: tpresser@waterboards.ca.gov; 'Bill Bookout'; acharlton@timespressrecorder.com; news@ksby.com; 'acornejo@thetribunenews.'; 'econnolly@newtimesslo.com'; 'nwilson@thetribunenews.com'; hpackard@waterboards.ca.gov; 'Roger Briggs'; 'John Belsher'; jbishop@coastal.ca.govSubject: RE: -Letter to the Editor--Oceano Community Safety from State Highway 1 to the Pacific Ocean-Matt and TamaraI just found this on the internet in this full form document. Could you please answer the following questions to the news media Cc above and to myself? I will be contacting other news media and providing them your answers as well as publishing them to my blog!1) Has the RWQCB approved the OCSD SWMP see below? October 2, 2008 letter2) When did the RWQCB approve the OCSD pipe in the Railroads Storm Water Drainage Channel?3) Why was this not listed in the Oceano CSD's Storm Water Management Plan (SWMP)?4) When John Goni of the RWQCB in 1985 required POVE to raise the retention pond on RR property that Caltrans, County and OCSD all Use for storm water as seen in your documents posted to my blog, who at the RWQCB permitted this Drainage Change?5) Does Caltrans have a SWMP to shovel and grade Contaminated Storm Water Debris into the Oceano Community’s Storm Water Drainage system as seen in photos and video’s on my blog? Unfortunately Judge Tangeman chose to ignore this evidence presented to him blaming POVE 100%!6) Is it the RWQCB view that POVE is responsible 100% for the Storm Water and Well Water flooding of State Highway 1?7) Who at the RWQCB has permitted Caltrans and OCSD to pump the Contaminated Storm water out of their jointly used retention pond to the Pacific Ocean during flooding of State Highway 1 as seen in three different videos on my blog?8) In these County_trying_to_make_a_Deal.pdf documents the County of San Luis Obispo seems concerned of dangerous conditions to State Highway 1 from flooding. Does the RWCB view the storing of contaminated storm water and Well #8 water on State Highway 1 as a danger to public safety?9) Did the RWQCB ever receive copies of these documents that had been withheld from discovery by the County of san Luis Obispo until December 2, 2008 four month after Judge Tangeman decision showing that POVE was 100% responsible for the flooding of State Highway 1? County_Discovery_Abuse_Baughman_...10) Has the RWQCB had any Contaminated Storm Water Issues dealing with the flooding of the previous flooding of the Baughman Property prior to Caltrans and OCSD December 2002 Drainage changes to the Railroads Storm water Drainage channel seen in the Photo below of OCSD Dredging Contaminated Storm Water and Debris in the Oceano Community’s Storm Water drainage system?11) Who is responsible for this Oceano Storm Water Drainage System that the County, Caltrans and OCSD all use now that Caltrans has informed the Regional Water Quality Control Board in an e-mail January 12, 2009 from Pete Rieglhuth, Caltrans NPDES Coordinator that “Due to past litigation, the Department is no longer responsible or allowed to maintain the channel located off of the Caltrans right of way.” ?I look forward to your answers and will publish this to my blog so that the Community and State will be able to understand how contaminated storm water in Oceano California can be mixed with OCSD well water, Caltrans Contaminated Storm Water Debris graded and shoveled into a community’s storm water drainage system and then allowed to mix with chemicals and pesticides washed off of produce as permitted by the Regional Water Quality Control Board!I would appreciate and request this Regional Water Quality Control Board make all Regional Water Quality Control Board’s in California aware of you answers’ as this affects all of California!SincerelyBill BookoutOceanoSubject: Oceano Storm Water Management Plan Public Comment PeriodPosted October 3, 2008Oceano CSD's Storm Water Management Plan (SWMP) is available for public comment through December 2, 2008The General Permit for the Discharge of Storm Water from Small Municipal Separate Storm Sewer Systems (Water Quality Order No. 2003-0005-DWQ), requires small municipalities and urbanized areas to develop and implement a SWMP designed to reduce the discharge of pollutants through their MS4s to the Maximum Extent Practicable (MEP).Oceano CSD developed and submitted a SWMP to Central Coast Water Board staff. We are posting the SWMP for a 60-day period, during which, a member of the public may request a public hearing by the Central Coast Water Board. Public hearing requests must be submitted in writing to the address below, or by email to one of the email addresses below, by 5:00 pm on December 2, 2008.Water Board staff has posted our October 2, 2008 letter to Oceano CSD that includes the Table of Required Changes for the SWMP. This table identifies changes and/or additions to the SWMP that Water Board staff require for recommending approval of the SWMP to the Water Board.If you have questions concerning the Oceano CSD's SWMP, please contact Tamara Presser at (805) 549-3334, or by email at tpresser@waterboards.ca.gov, or Matt Thompson at (805) 549-3159, or mthompson@waterboards.ca.gov. If you are unable to download the SWMP, please contact Tamara Presser to make alternative arrangements.Thank you,Central Coast Water Quality Control Board895 Aerovista Place, Suite 101 San Luis Obispo, CA 93401-7906
The above drainage changes affects, more people safety then just Oceano Residents; I would hope to see the Regional Water Quality Control Board Require Caltrans to stop Grading and shoveling debris into this Community' Storm Water Drainage Channel. Require the Oceano Community Service District to remove their 6 inch PVC pipe dredging Debris into the Railroads 24 inch Storm Water Drainage Inlet and then require the County Of San Luis to Lower the Pond on POVE property that Caltrans, County and OCSD all use! Then require County to store water on their Airport property as this is the historical storm water drainage storage for the Oceano!
INVERSE CONDEMNATIONA cause of action for inverse condemnation alleging property damage accrues notnecessarily on the date of the “taking,” but, rather, “when the damage is sufficiently appreciable to a reasonable man.” (Mehl v. People ex rel. Dept. Pub. Wks. (1975) 13 Cal.3d 710, 717; see also Oakes v. McCarthy (1968) 267 Cal.App.2d 231, 254-256 [statute runs from the time that noticeable damage occurs and reasonable notice is equated to knowledge].)
This case stands in sharp contrast. Where the Leaf plaintiffs were diligent in theirattempts to ascertain the cause of their subsidence, including hiring experts and promptlypursuing claims against the only identified wrongdoers, plaintiffs were not. They did8nothing to ascertain the cause of their storm damage. To the extent that plaintiffs didanything, what plaintiffs did, in the face of direct and observable injury, was essentiallyaccept opinions denying responsibility from employees of the now-accused parties andother nonexperts and conclude that there was a natural cause of the damage. In short,plaintiffs ignored the direct visual evidence on which their claim now rests. Such anargument cannot stand, either as a matter of law or logic.Plaintiffs urge that the statute of limitations did not begin because their propertysuffers continuous and repeated damage that has not stabilized. (Lee v. Los AngelesCounty Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848, 857-858(Lee).) According to plaintiffs, State has never modified the essential condition of theculvert and, thus, the condition continues to threaten their property. There is no merit tothis point.In Lee, the county transportation authority began constructing the Metro Rail RedLine underneath Hollywood Boulevard in 1992. The plaintiff observed that water hadaccumulated on or around her Hollywood Boulevard property in 1995. She suspectedthat plumbing in her building was the source of the problem and informed her insurancecarrier. An inspection determined that the city’s water pipes were undermining thesidewalk and Hollywood Boulevard. At that point, there had been no apparent damage toplaintiff’s building. In 1996, the sidewalks and roadbed directly in front of plaintiff’sproperty buckled. The plaintiff notified a city inspector about her observations andrequested the city to address the pipe problem because it was affecting her business.FEMA told her that earthquake was not the cause of the pipe problem. In 1997, a citybuilding inspector told the plaintiff that the problem was not on her property but that thedamage could be related to activities of the transportation authority. The plaintiff thenreceived geological and engineering reports from experts she had hired. The reportsconcluded that the damage to her building was caused by subway construction activitiesand recommended that mitigation measures include a new foundation. Throughout the9fall of 1997, the plaintiff had contact with the transportation authority’s insuranceadjustors. She filed her inverse condemnation and related tort action against thetransportation authority in May 2000 alleging that her property had been damaged byongoing construction of the subway. The transportation authority demurred on statuteof-limitation grounds. The parties accepted that the inverse condemnation action accruedwhen the plaintiff either knew or reasonably should have known of the damage to herproperty. The trial court sustained the demurrer. But the court reversed after relying onPierpont Inn, Inc. v. State of California (1969) 70 Cal.2d 282, disapproved on anotherground in Los Angeles County Metropolitan Transportation Authority v. ContinentalDevelopment Corp. (1997) 16 Cal.4th 694, and Stonewall Ins. Co. v. City of Palos VerdesEstates (1996) 46 Cal.App.4th 1810. It held that, where property damage incident to awork of public improvement is continuous and repeated, the limitations period does notbegin to run until the damage has “stabilized.” (Lee, supra, 107 Cal.App.4th at pp. 856-857.) The court based its holding on plaintiff’s allegation that the “construction of thesubway rail system ‘is and/or will be continuing in the future’ [and that the] ‘[t]heongoing construction has damaged and Plaintiffs are informed and believed will continueto damage Plaintiff’s businesses and properties’ ” by activities that did cause and “ ‘willcontinue to cause ongoing interference’ ” with plaintiff’s use of the property. (Id. at p.858.) The court concluded that the “plaintiff ha[d] adequately alleged a continuous andrepeated course of conduct causing damages to her property, which had not stabilized atthe time” the action was filed. (Ibid.)
PDF]IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE ...
Filed 12/21/01 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF ...File Format: Microsoft Word - View as HTMLDec 21, 2001 ... Under the seminal case of Keys v. Romley (1966) 64 Cal.2d 396 (Keys) an ... are not contiguous and a key element of the artificial drainage ...caselaw.findlaw.com/data2/californiastatecases/A094718.DOC - Similar pages -
Flood Damage: Evolving Laws and Policies for an Ever-Present Risk ...Figure 4 - In the case of Keys vs Romley (1966), the Doctrine of Reasonable Use was adopted to pertain to collection and conveyance of surface waters ...1. DOC]Filed 11/21/08 Polage v. City of Ontario CA4/2 NOT TO BE PUBLISHED ...File Format: Microsoft Word - View as HTMLNov 21, 2008 ... When the next instance of annual flooding occurred in 1998, the three-year statute of limitations began to accrue. (Polin v. ...www.courtinfo.ca.gov/opinions/nonpub/E043554.DOC - Similar pages -Prescriptive easements are easements created not by purchase or inheritance but by use over time. As with adverse possession, one can gain an easement if one uses the property in a certain way withoutthe owner of the property objecting and taking appropriate action to stop you and extinguish the easement.§ 325. Adverse possession; claim of title not founded upon written instrument, etc.; occupancy of land
bunchMay 8, 1997 ... In Keys v. Romley (1966) 64 Cal.2d 396, 401 (Keys), Justice Mosk observed: "The courts which evolved and applied the extreme common enemy ...www.stanford.edu/~meehan/class/mitjan2000/bunch.html - 63k - Cached - Similar
CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF ...
The San Luis Obispo Trial Court erred in regards to the Locklin factors
Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 350 [27 Cal.Rptr.2d 613, 867 P.2d724] (Locklin).) Presumably, under the Archer exception, a public entity would becompletely immune from liability if the entity's conduct were of the type that would havebeen immune under these water law principles.Like this case, Belair involved flood damage that occurred after a levee failed. Belairmodified Albers and adopted a rule of reasonableness to be *739 applied in the contextof flood control litigation. Belair determined that application of the Albers rule of strictliability would discourage needed flood control projects by making the entity the insurerof the property the project was designed to protect. (Belair, supra, 47 Cal.3d at p. 565.)On the other hand, to apply the Archer exception would unfairly burden the privatelandowner by requiring the landowner to bear a disproportionate share of the damagecaused by failure of the public project. To balance these conflicting concerns Belair held:"[W]here the public agency's design, construction or maintenance of a flood controlproject is shown to have posed an unreasonable risk of harm to the plaintiffs, and suchunreasonable design, construction or maintenance constituted a substantial cause of thedamages, plaintiffs may recover regardless of the fact that the project's purpose is tocontain the 'common enemy' of floodwaters." (Ibid.) Under Belair, the public entity isnot immune from suit, but neither is it strictly liable. Belair left open the question of how to determine reasonableness in the inverse condemnation context. That question was answered in Locklin. The Locklin plaintiffs hadalleged that increased runoff from creek side public works caused erosion damage totheir property downstream. Locklin held that the privilege to discharge surface waterinto a natural watercourse (the natural watercourse rule) was a conditional privilege,subject to the Belair rule of reasonableness. (4) Locklin explained that to determinereasonableness in such a case, the trial court must consider what are now commonlyreferred to as the "Locklin factors." They are: "(1) [t]he overall public purpose beingserved by the improvement project; (2) the degree to which the plaintiff's loss is offsetby reciprocal benefits; (3) the availability to the public entity of feasible alternatives withlower risks; (4) the severity of the plaintiff's damage in relation to risk-bearingcapabilities; (5) the extent to which damage of the kind the plaintiff sustained isgenerally considered as a normal risk of land ownership; and (6) the degree to whichsimilar damage is distributed at large over other beneficiaries of the project or ispeculiar only to the plaintiff." (Locklin, supra, 7 Cal.4th at pp. 368-369.)Thus, in matters involving flood control projects, or in circumstances such as thosebefore the court in Locklin, the public entity will be liable in inverse condemnation if itsdesign, construction, or maintenance of a public improvement poses an unreasonablerisk of harm to the plaintiff's property, and the unreasonable aspect of the improvementis a substantial cause of damage. In those circumstances, unreasonableness isdetermined by balancing the factors set forth in Locklin. *7403. Counties' Issues [FN5]a. The Trial Court Properly Balanced the "Locklin Factors."
A cause of action for inverse condemnation alleging property damage accrues not necessarily on the date of the “taking,” but, rather, “when the damage is sufficiently appreciable to a reasonable man.” (Mehl v. People ex rel. Dept. Pub. Wks. (1975) 13 Cal.3d 710, 717; see also Oakes v. McCarthy (1968) 267 Cal.App.2d 231, 254-256 [statute runs from the time that noticeable damage occurs and reasonable notice is equated to knowledge].)Generally, a cause of action accrues for purposes of the statute of limitations, and the applicable limitations period begins to run, when the plaintiff has suffered damages from a wrongful act. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397 (Norgart).) However, this rule has an important exception, referred to as the discovery rule that “postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” (Ibid.) But the rule is not so broad as to delay accrual indefinitely until the plaintiff stumbles upon a claim. Rather, the plaintiff discovers the cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof--when, simply put, he at least suspects that someone has done something wrong to him, “wrong” being used, not in any technical sense, but rather in accordance with its lay understanding. (Id. at pp. 397-398.) Thus, under the discovery rule, the plaintiff need not be aware of the specific facts or legal theory necessary to establish the claim. (Ibid.) He or she need not even know the identity of the wrongdoer. (Id. at p. 399.) Rather, the plaintiff need only be aware of his or her injury and have knowledge of sufficient facts to place him or her on actual or inquiry notice that the injury has a negligent cause. (Id. at pp. 397-398.)
Current State Liability Via Inverse CondemnationClaims for flood damages against the state and other public agencies are often grounded on the theory of inverse condemnation, which is rooted in the following Constitutional provision: “Private property may be taken or damaged for public use only when just compensation . . . has first been paid to . . . the owner.” Cal. Const. Art. 1, Sect. 19. When a public use or improvement (such as a dam or flood management project) results in damage to private property without having been preceded by just compensation, then the damaged private property owner may bring an action against the public entity to recover just compensation. Because the private property owner, as opposed to the public entity, initiates the action, it is termed an “inverse” condemnation. Cal. Const. Art. 1, Sect. 19. See also, Breidert v. Southern Pac. Co. (1964) 61, Cal. 2d 659, 663 fn., 1; Belmont County Water Dist. v. California (1976) 65 Cal. App. 3d 13, 19, fn. 3; Arreola v. County of Monterrey (2002) 99 Cal. App. 4th 722, 737.The underlying policy concern in inverse condemnation cases has less to do with deterring negligent behavior (as in tort law) than in preventing an individual private property owner from bearing a disproportionate burden of the costs of a public project (or costs incurred from the failure or inadequacy of those projects). Paterno v. California (Paterno II) (2003) Cal App. 4th 998, 1003; Locklin v. City of Lafayette (1994) 7 Cal. 4th 327; Belair v. Riverside County Flood Control District (1988) 47 Cal. 3d 550, 558; Holtz v Superior Court (1970) 3 Cal. 3d 296, 303. A public entity will be liable for inverse condemnation in areas historically prone to flooding, if its design, construction, or maintenance of a public improvement poses an unreasonable risk of harm to the plaintiff’s property, and the unreasonable aspect of the improvement is a substantial cause of damage. Arreola, 99 Cal. App. 4th at 739. In determining reasonableness, the courts look beyond the conduct of the defending public entity toward a balancing of broader policy considerations as set forth by the Supreme Court in Locklin. Locklin, 7 Cal. 4th 327. Ultimately, the reasonableness standard in inverse condemnation cases balances the public need for flood management projects against the risks and severity of damages sustained by private landowners. Locklin, supra 7 Cal. 4th at 368; Paterno II, supra, 113 Cal. App. at 1018-1019.In performing this balancing test, the courts apply the so-called “Locklin factors.” (As noted in Paterno I & II, the “Locklin factors” in fact consist of two overlapping set of factors. Paterno II, supra, 113 Cal. App. 4th at 1016-1018.) These factors include (1) The overall public purpose served by the improvement project; (2) the degree to which the plaintiff’s loss is offset by reciprocal benefits; (3) the availability to the public entity of feasible alternatives with lower risks; (4) the severity of the plaintiff’s damages in relation to risk-bearing capabilities; (5) the extent to which the kind of damage sustained is considered as a normal risk of land ownership; and (6) the degree to which the kind of damage is distributed at large or is peculiar to the plaintiff (i.e. a “special damage.”) In addition, a determination of reasonableness may also consider the landowner’s responsibility to take reasonable precautions to protect against potential flood damage and to anticipate upstream developments that may increase the stream flow. Bunch, supra 15 Cal. 4th at 446; Paterno II, supra 113 Cal. App. at 1017.Recent court decisions have made clear that the state and other public entities may be held liable for the consequences of failing to maintain a flood management system or for failing to mitigate a known danger. Paterno II, 113 Cal. App. 4th 998. (See also Paterno v. California (Paterno I) (1999) 74 Cal. App. 4th 68.); Arreola, 99 Cal. App. 4th 722. In the Paterno cases, about 3000 plaintiffs sued both the state of California and a local reclamation district for damages caused by the failure of a 1986 Yuba County levee that had been incorporated into a state-managed regional flood management plan. The court of appeals found that the state was liable to the plaintiffs for damages to their property caused by the flooding. The court reasoned that when California incorporated the levee into the state plan it accepted liability as if it had planned and built the system itself. Although the state had operated the levee for 75 years prior to its failure, it had never corrected the levee’s underlying structural flaws. The court did not find liability on the part of the reclamation district because the local district only had responsibility for maintenance; it did not have any authority or duty to correct structural flaws. This ruling ultimately cost the state nearly half a billion dollars.
County of San Luis Obispo---Oceano Community Service District
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Oceano Nursery Flooding
Oceano Nursery Flooding
Oceano, California, United States
Oceano Nursery has been Flooding since 2004 from changes made to the Oceano Communities Storm Water Drainage system in December 2002 By the Oceano Community Service District, followed by Caltrans Highway 1 changes in late 2002 and early 2003. Caltrans useing their employees and equipment to push/plow and shovel debris into the Oceano Communities Storm Water Drainage channel instead of removing debris as Caltrans Historically had done prior to 2001 and 2002. Please view the security video's and photos showing Caltrans actions! The County Of San Luis Obispo has withold evidence from Discovery showing their involvement both above and below this drainage system. Please review statements in Caltrans memorandums and the cost to fix this drainage sytem in 1987. Please Review the Regional Water Quality Control Boards involvment with Caltrans and The County Of San Luis Obispo on what was Railroad property in which the RWQCB and The County of San Luis Obispo required this Storm Water Retention Basin raised in 1985. This action came from documents showing Cal Trans concerns of property owners downhill from this Storm Water Retention Pond View my complete profile
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