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 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 your local Governments actions Caltrans and County using State Hwy 1 for a storm water retention basin. 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.”Please View http://www.oceanonurseryflooding.blogspot.com/

Bookout v. State of California et. al Appeals work DocumentsUsing VALERA LYLES et al., v. STATE OF CALIFORNIA et al., --- JAMES ARREOLA et al. v. COUNTY OF MONTEREY et al.,JAMES ARREOLA et al., Plaintiffs and Respondents, v.--- Skoumbas v. City Of Orinda1 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF ..., Cal.App.4th IN THE SUPREME COURT OF CALIFORNIA KENNETH bunchet al., )

"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"

This photo presented to Judge Tangeman is a Caltrans Supervisor shoveling debris into the Oceano Community's storm Water drainage channel.


Recent Trial Case’s protecting our Rights
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.

Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Diversion of surface waters into a natural watercourse creates liability only if it causes an unreasonable risk of harm under Locklin factors and is a substantial cause of damage. Flood control system that “fails in heavy rain and causes damage to property that has historically been subject to flooding” governed by rule of reasonableness. City could be liable even if its storm drainpipe discharged into a private pipe and the damage occurred “downstream.” ”We conclude the critical inquiry is not whether the entire system was a public improvement, but rather whether the City acted reasonably in its maintenance and control over those portions of the drainage system it does own.” “Substantial cause-and-effect relationship” is enough for liability even for downstream flooding.

Caltrans November 26, 2008 continuing to shovel debris into the Oceano Community's Storm Water Drainage Channel

Oceano Community Service District Well # 8 PVC pipe installed into the Oceano Community's storm water drainage channel

Judge Tangeman viwed this Caltrans 1967 photo showing the drainage path not changing to a pond on Railroad property

County documents withheld from discovery showing Caltrans raising State Highway 1 a foot, while maintaining the storm water drainage channel up to 2002

County documents wihheld from discovery showing flooding problem on east side of State Highway 1 after Caltrans raised State highway 1 in December 2001.

Read the investigative report about Gail Wilcox

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 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 your local Governments actions Caltrans and County using State Hwy 1 for a storm water retention basin. 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.”

Please View http://www.oceanonurseryflooding.blogspot.com/

Bookout v. State of California et. al Appeals work Documents
Using VALERA LYLES et al., v. STATE OF CALIFORNIA et al., --- JAMES ARREOLA et al. v. COUNTY OF MONTEREY et al.,--- Skoumbas v. City of Orinda (2008) , Cal.App.4th IN THE SUPREME COURT OF CALIFORNIA KENNETH BUNCH et al., )

Flooding Cases
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.

Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Diversion of
surface waters into a natural watercourse creates liability only if it causes an
unreasonable risk of harm under Locklin factors and is a substantial cause of
damage. Flood control system that “fails in heavy rain and causes damage
to property that has historically been subject to flooding” governed by rule
of reasonableness. City could be liable even if its storm drainpipe
discharged into a private pipe and the damage occurred “downstream.”
“”We conclude the critical inquiry is not whether the entire system was a
public improvement, but rather whether the City acted reasonably in its
maintenance and control over those portions of the drainage system it does
own.” “Substantial cause-and-effect relationship” is enough for liability
even for downstream flooding.


-----------------------------------------------------------------------------------
Filed 6/29/07; pub. order 7/13/07 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
VALERA LYLES et al.,
Plaintiffs and Appellants,
v.
STATE OF CALIFORNIA et al.,
Defendants and Respondents.
H030059
(Monterey County
Super. Ct. No. M70161)
Plaintiffs Valera Lyles and William M. Lyles IV as Trustee of the Valera W. Lyles Residence Trust sued defendants State of California (State) and County of Monterey (County) for inverse condemnation and nuisance. They sought to recover damages to residential property allegedly caused by an inadequate drainage system surrounding Highway 1 and Spindrift Road, which allowed flooding of the property during a rainstorm. The trial court granted defendants’ motion for summary judgment as to inverse condemnation based on the applicable three-year statute of limitations. However, it later allowed plaintiffs leave to file an amended complaint alleging nuisance.1 After plaintiffs filed a first amended complaint, defendants successfully demurred to the pleading based on the applicable three-year statute of limitations. On appeal from the judgment, plaintiffs contend that the discovery rule and other exceptions to the statutes of limitation delayed accrual of their causes of action. We disagree and affirm the judgment.2
scope of review
The parties agree that an inverse condemnation claim seeking “to recover for physical damage to private property” is subject to a three-year statute of limitations (Code Civ. Proc., § 338, subd. (j)) and a nuisance cause of action is likewise barred by a three-year statute of limitations (id., subd. (b) [“trespass upon or injury to real property”]).
The parties also agree on the material facts, which are the same for each cause of action.3 They simply disagree on the legal effect of those facts. The question before us is therefore whether the statute of limitations bars plaintiffs’ causes of action. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112 [statute of limitations is normally a question of fact but may be resolved as question of law when uncontradicted facts are susceptible of only one legitimate inference].)4
background
On February 3, 1998, a winter storm occurred in the Carmel Highlands during which water, mud, rocks, and debris flowed onto plaintiffs’ property and damaged the front and back yards. Plaintiffs saw similar damage to neighboring properties. Plaintiffs’ property had never before experienced flooding. During the clean up, plaintiffs communicated with employees of State and County (as well as FEMA (the Federal Emergency Management Agency) employees and their own insurance broker) and reached a conclusion that the flooding and resulting damage were caused by “an act of God.” They did nothing more to investigate the cause. In March 2003, someone told plaintiffs that one of their neighbors had sued State for the storm damage and prevailed in the Court of Appeal on facts that applied to plaintiffs’ storm damage. Plaintiffs filed this action in June 2004. According to plaintiffs, a culvert under Highway 1 became clogged during the storm. This caused water to run along Highway 1, which channeled the flow onto Spindrift Road and plaintiffs’ property.
inverse condemnation
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].)
Here, the “taking” or damage occurred in February 1998 and plaintiffs knew about such at the time it happened. That plaintiffs believed that the damage resulted from natural causes does not affect these facts. Thus, plaintiffs’ damage was “sufficiently appreciable to a reasonable man” in February 1998. Since plaintiffs did not file this action until June 2004, this action is barred by the statute of limitations.
Plaintiffs contend that we should apply the discovery rule in lieu of the standard articulated in Mehl and Oakes. Plaintiffs continue that, if the discovery rule is applied, the statute of limitations does not begin until the time in 2003 when they learned that State might be responsible for the storm damage. They reason that they did not know that the damage was caused by wrongdoing until that time. But a discovery-rule analysis leads to the same conclusion.
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.)
The Supreme Court has recently restated the rule: “A plaintiff has reason to discover a cause of action when he or she ‘has reason at least to suspect a factual basis for its elements.’ [Citations.] . . . [¶] . . . [¶] . . . In other words, plaintiffs are required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807-808.)
In Bookout v. State of California--The Cause of concern--action was the PVC Pipe in the Railroads Storm Water Drainage inlet pipe OCSD Cut-Five Feet Off of this pipe in December 2002 with Caltrans seeing potential dangers and liabilities this could cause. They Chose to install concrete bags in front of this PVC pipe for erosion control Documents withheld from Discovery showed a reasonable investigation by plaintiff of a problem prior to damage of property The Drainage blockage from OCSD five feet cut off of their PVC pipe stopped the restriction of water at the inlet for 2003. It wasn’t till 2004 that this previous blockage and repair was found to have actually previously purge the RR inlet pipe. By OCSD cutting only five feet off of this pipe in December 2002 they actually began the dredging of debris into the RR intended use of their 24 inch pipe blocking storm water from traveling through this RR drainage system thus starting a cause of action discovered in 2004 that was not corrected as requested after 2004 flooding. OCSD in 2004 weed abated the Railroad property and cleaned out the drainage channel, however they chose to leave the debris from this abatement on the ground for erosion Control?
The discovery rule is frequently applied in medical malpractice cases. For example, in Unjian v. Berman (1989) 208 Cal.App.3d 881, 885, a doctor injured a patient during face-lift surgery (patient looked worse after surgery). The court found a triable issue of fact as to delayed discovery after reasoning that an operation’s failure to produce an expected result would not necessarily suggest to the ordinary person that the operation had been performed negligently.5
Property damage cases, however, are different from medical malpractice cases in the sense that, when property is damaged, there is ordinarily some wrongful cause. Thus, when one’s property is damaged, one should reasonably suspect that someone has done something wrong to him and, accordingly, be charged with knowledge of the information that would have been revealed by an investigation. That particular property damage could result from natural causes does not mean that the same property damage could result only from natural causes. (Frederick v. Calbio Pharmaceuticals (1979) 89 Cal.App.3d 49, 58-59 [plaintiff’s “ ‘blameless ignorance’ ” tolls the statute of limitations where the apparent natural cause of an injury “lacks any connotation of the intervention of any immediate outside cause”].) For example, fire damage could result from natural causes or arson. If an injured property owner elects to believe, without investigating, that fire damage resulted from natural causes, he or she cannot expect to successfully sue an arsonist who later confesses outside the limitations period. (Norgart, supra, 21 Cal.4th at p. 397 [he must seek to learn the facts and cannot wait for them to find him].) Plaintiffs’ flood damage is on the same footing.
In Bookout v. State of California --The retaining wall removed by Cal Trans in 2003 was not natural causes. The Facts found are the removal of a retaining wall. Cal Tran being caught deliberately grading debris into the community’s drainage channel from their retaining wall removal in 2003 along with the OCSD PVC pipe being cut Five Feet short of the RR inlet which then dredged debris into the Railroad 24 inch inlet pipe instead of prior to December 2002 when this pipe in the inlet cleaned the RR pipe as shown in 2005 when OCSD had Arroyo Grande perform the same function with their equipment which stopped any flooding for the remainder of 2005 Plaintiff did research in 2005 showing OCSD weed Abatement actions in 2004 leading to January 2005 Flood where as the first flood of 2004 was from OCSD December 2002 cut off of their PVC pipe and then using their well # 8 for the remainder of 2003 dredging debris into the railroads inlet instead of forcing this debris out as had been the practice prior to this drainage change. The Concrete bags installed by Cal Trans in December 2002 raised the height of the channel as seen in a previous Cal Trans photo in the mid eighties provided by Cal Trans in Discovery. Setting aside the case Lyles. Bookout v. State of California in Bookout the circumstance’s are not a one time event and have been ongoing since 2004
We venture that the expressions of the accrual rule in Mehl and Oakes (damage sufficiently appreciable to a reasonable man) as well as cases concerning property damage outside the inverse condemnation context (see, e.g., Siegel v. Anderson Homes, Inc. (2004) 118 Cal.App.4th 994, 1005 [a cause of action for damage to real property accrues when the defendant’s act causes immediate and permanent injury to the property or, to put it another way, when there is actual and appreciable harm to the property]) reflect the reality that, in a patent property damage case, wrongful cause of the damage is inherently possible or suspect enough to require a reasonable, prompt investigation.
In Bookout v. State of California --Accrual rule in 2004 the (damage became sufficiently appreciable to the reasonable man) as seen in photos of actual and appreciable harm to the property
It is true that the discovery rule has been applied in property-damage cases involving latent defects. (See Leaf v. City of San Mateo (1980) 104 Cal.App.3d 398, 406-407 (Leaf); see, e.g., Siegel v. Anderson Homes, Inc., supra, 118 Cal.App.4th 994.) But this case involves a one-time known damage event, the equivalent of a patent defect. Even so, the discovery rule as expressed in the latent-defect cases is consistent with Mehl and Oakes: “In the case of such latent defects the statute of limitations begins to run only when ‘noticeable damage occurs.’ ” (Leaf, supra, 104 Cal.App.3d at p. 407, citing Mehl and quoting Oakes.)
In Bookout v. State of California the (one-time known damage event, the equivalent of a patent defect.) is not applicable as damage is ongoing with changes by Cal Trans and the OCSD
Plaintiffs nevertheless rely on Leaf. But this reliance is erroneous.
In Leaf, the plaintiffs discovered uneven floors and exterior cracks in a building they had recently purchased. Engineers concluded that differential settlement and soils subsidence had damaged the building. The plaintiffs sued several parties involved in the original construction and settled that action. During repairs, a cave-in revealed that the actual cause of the problem was an uncompacted sewer trench left by the City of San Mateo. When the plaintiffs sued the city, the trial court granted summary judgment on the ground that the statute of limitations had run. On appeal, the court applied the discovery rule and reversed. It held that the plaintiffs’ cause of action accrued either when they became aware that the city’s negligence caused the damage, or when they could have become aware of that fact through the exercise of reasonable diligence: “The ultimate question therefore is whether plaintiffs exercised reasonable diligence in discovering the negligent cause of their injuries. [Citation.] We see no reason to commence the running of the statute of limitations when plaintiffs, at the outset, made reasonable, but unsuccessful, efforts to identify the negligent cause of damage. Where, as in this case, plaintiffs consulted with professional engineers as to the source of their injury, they were entitled to rely upon that advice. [Citation.] It would be contrary to public policy to require that plaintiffs file a lawsuit against City of San Mateo at a time when the evidence available to them failed to indicate a cause of action against this defendant.” (Leaf, supra, 104 Cal.App.3d at pp. 408-409.)
In Bookout v. State of California--Plaintiffs’ cause of action accrued when it was noticed the effects of the OCSD PVC pipe dredging debris into the RR inlet in 2004. it was again noticed in 2005, 2007, 2008 with photos, video and security cameras of Cal Trans Actions of grading and shoveling debris into the Railroad drainage inlet. The raising of highway 1 in 2000, 2003, and 2006 again that fact through the exercise of reasonable diligence brought evidence available showing Cal Trans actions showing no stabilization of any of the negligence of Cal Trans and OCSD. The discovery rule should apply here! Plaintiff was diligent in his attempt to ascertain the cause of flooding
This case stands in sharp contrast. Where the Leaf plaintiffs were diligent in their attempts to ascertain the cause of their subsidence, including hiring experts and promptly pursuing claims against the only identified wrongdoers, plaintiffs were not. They did nothing to ascertain the cause of their storm damage. To the extent that plaintiffs did anything, what plaintiffs did, in the face of direct and observable injury, was essentially accept opinions denying responsibility from employees of the now-accused parties and other 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 an argument cannot stand, either as a matter of law or logic.
In Bookout v. State of California Bookout took photos in 2004, 2005 video in 2006, 2007, 2008 and Security cameras in 2007 and 2008. Bookout began legal action in 2006 within his statute of limitations. Photos Exhibit 1278 taken in 200/2001/2002? were of a train derailment as seen in photos withheld from discovery by defendant County!. The Trial Court identified this exhibit Page 7 in their August 5, 2008 Decision. Photo Exhibits 1337 December 2002 acknowledged by the Trial Court was taken showing a water line that could not flood Oceano Nursery.

OCSD after being informed as seen in OCSD Daily Logs repaired this drainage obstacle, while Caltrans preformed maintenance at the inlet Exhibit # 1338 shows the OCSD damming debris at the Railroad inlet.
Photo Exhibit #1339 shows OCSD knowledge and repairs as stated by the trial Court P.7 immediately after a storm. The Trial Court erred in the courts statement: “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 Service District (“OCSD”) drainage Pipe in the vicinity of the culvert.”

Plaintiffs urge that the statute of limitations did not begin because their property suffers continuous and repeated damage that has not stabilized. (Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848, 857-858 (Lee).) According to plaintiffs, State has never modified the essential condition of the culvert and, thus, the condition continues to threaten their property. There is no merit to this point.
In Bookout v. State of California-- In December 2002 Caltrans did modify the RR inlet pipe with concrete bags at its opening. In 2003 Cal Trans added an inlet curb next to Highway 1 when they removed and modified their retaining wall within their 4 foot right away


In Lee, the county transportation authority began constructing the Metro Rail Red Line underneath Hollywood Boulevard in 1992. The plaintiff observed that water had accumulated on or around her Hollywood Boulevard property in 1995. She suspected that plumbing in her building was the source of the problem and informed her insurance carrier. An inspection determined that the city’s water pipes were undermining the sidewalk and Hollywood Boulevard. At that point, there had been no apparent damage to plaintiff’s building. In 1996, the sidewalks and roadbed directly in front of plaintiff’s property buckled. The plaintiff notified a city inspector about her observations and requested 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 city building inspector told the plaintiff that the problem was not on her property but that the damage could be related to activities of the transportation authority. The plaintiff then received geological and engineering reports from experts she had hired. The reports concluded that the damage to her building was caused by subway construction activities and recommended that mitigation measures include a new foundation. Throughout the fall of 1997, the plaintiff had contact with the transportation authority’s insurance adjustors. She filed her inverse condemnation and related tort action against the transportation authority in May 2000 alleging that her property had been damaged by ongoing construction of the subway. The transportation authority demurred on statute-of-limitation grounds. The parties accepted that the inverse condemnation action accrued when the plaintiff either knew or reasonably should have known of the damage to her property. The trial court sustained the demurrer. But the court reversed after relying on Pierpont Inn, Inc. v. State of California (1969) 70 Cal.2d 282, disapproved on another ground in Los Angeles County Metropolitan Transportation Authority v. Continental Development Corp. (1997) 16 Cal.4th 694, and Stonewall Ins. Co. v. City of Palos Verdes Estates (1996) 46 Cal.App.4th 1810. It held that, where property damage incident to a work of public improvement is continuous and repeated, the limitations period does not begin 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 the subway rail system ‘is and/or will be continuing in the future’ [and that the] ‘[t]he ongoing construction has damaged and Plaintiffs are informed and believed will continue to damage Plaintiff’s businesses and properties’ ” by activities that did cause and “ ‘will continue 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 and repeated course of conduct causing damages to her property, which had not stabilized at the time” the action was filed. (Ibid.)
Caltrans actions were deliberate and ongoing conduct in the course of their construction and destruction of a retaining wall that had caused and would continue to cause, damage to the properties due to sedimentation allowed to fill the drainage channel from their retaining wall
“It held that, where property damage incident to a work of public improvement is continuous and repeated, the limitations period does not begin to run until the damage has “stabilized.”” Cal Trans actions have been continuous and repeated, the limitations period does not begin to run until the damage has “stabilized.”
The court should conclude that the “plaintiff ha[d] adequately alleged a continuous and repeated course of conduct causing damages to his property, which had not stabilized at the time” the action was filed. (Ibid
The key distinction between this case and Lee is that Lee involved alleged damage caused by the ongoing activities of the public entity related to construction of a public work of improvement. In other words, it was the deliberate and ongoing conduct of the entity in the course of construction that had caused, and would continue to cause, damage to the property. Here, in contrast, defendants are not performing ongoing activities that will, of necessity, stabilize when the activities cease. In this case, there was a single “activity” that occurred once in 1998. Defendants’ failure to modify the culvert does not affect this point. As unmodified, the culvert is conceptually part of the original condition of the original construction activity rather than part of ongoing construction activities. These circumstances do not justify application of the “stabilization” approach to accrual of an inverse condemnation cause of action.
nuisance
Since we have concluded that plaintiffs were put on inquiry notice of their inverse condemnation claim in 1998, the same holds true with respect to the nuisance claim.
Plaintiffs, however, contend that their nuisance claim is of the continuing variety. They assert that they are not time barred from recovery to the extent that the faulty drainage system threatens to flood their property. Plaintiffs are incorrect.
In Bookout v. State of California the nuisance claim is of the continuing variety. Caltrans Highway changes in 2000, 2002/2003 and 2006 retaining wall removal in 2003. The OCSD PVC pipe cut back in December 2002 has left this system faulty followed by Cal Trans plowing and shoveling debris into this system. The damages are not permanent or complete. The Damages are ongoing or repeated as stated below “A person harmed by a continuing nuisance “may bring successive actions for damages until the nuisance is abated.”
Whether a nuisance is continuing or permanent depends “on the type of harm suffered.” (Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 868 (Baker).) “[P]ermanent nuisances are of a type where ‘ “by one act a permanent injury is done [and] damages are assessed once for all.” ’ ” (Ibid.) Nuisances found to be permanent in nature include “solid structures, such as a building encroaching upon the plaintiff’s land [citation], a steam railroad operating over plaintiff’s land [citation], or regrade of a street for a rail system [citation].” (Id. at p. 869, fns. omitted.) For a permanent nuisance, damages are “complete when the nuisance comes into existence,” and an action must generally be brought “within three years after the permanent nuisance is erected.” (Ibid.; but see Gov. Code, § 911.2 [government claim filing period one year].) A nuisance is not permanent, but continuing, if the nuisance “may be discontinued at any time.” (Baker, supra, 39 Cal.3d at p. 869.) “The classic example of a continuing nuisance is an ongoing or repeated disturbance, such as . . . one . . . caused by noise, vibration or foul odor.” (Ibid.) A person harmed by a continuing nuisance “may bring successive actions for damages until the nuisance is abated.” (Ibid.)
In any event, 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.)
Here, it is undisputed that plaintiffs suffered one-time damage in 1998 and no damage since 1998. Thus, assuming that defendants’ faulty drainage system constitutes a nuisance, it is of the permanent variety that requires plaintiffs to sue within three years of being damaged. This action is therefore untimely. We recognize that plaintiffs disagree with Mangini and assert that the word “continuing” in “continuing nuisance” refers to the continuing existence of the offensive condition rather than continuing damage from the offensive condition. But they cite no authority for the proposition. Plaintiffs’ fear of future harm does not transform a permanent nuisance into a continuing nuisance. “[A] private nuisance action cannot be maintained for an interference in the use and enjoyment of land caused solely by the fear of a future injury.” (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041-1042; cf. Helix Land Co. v. City of San Diego (1978) 82 Cal.App.3d 932, 950 [future flooding threat]; see Baker, supra, 39 Cal.3d at p. 869 [“[p]rospective damages are unavailable”].)
disposition
The judgment is affirmed.
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.
Filed 7/13/07
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
VALERA LYLES et al.,
Plaintiffs and Appellants,
v.
STATE OF CALIFORNIA et al.,
Defendants and Respondents.
H030059
(Monterey County
Super. Ct. No. M70161)

BY THE COURT:
The opinion which was filed on June 29, 2007, is certified for publication.
_____________________________
Premo, J.
_____________________________
Rushing, P.J.
_____________________________
Elia, J.
The written opinion which was filed on June 29, 2007, has now been certified for publication pursuant to rule 8.1105(b) of the California Rules of Court, and it is therefore ordered that the opinion be published in the official reports.
Dated: _____________________________
Rushing, P.J.
Trial Court:
Monterey County Superior Court
Superior Court No. M70161
Trial Judge:
Hon. Robert A. O’Farrell
Attorneys for Plaintiff/Appellant:
Valera Lyles
William M. Lyles IV as Trustee of the Valera Lyles Residence Trust
Barron & Buck
Gerald V. Barron
Alexander R. Buck
Attorney for Defendant/Respondent:
State of California
State of California Dept. of Transportation
Bruce A. Behrens, Chief Counsel
David Gossage, Deputy Chief Counsel
Lucille Y. Baca
Janet Wong
Frank Valentini
Matthew Lavrinets
Attorney for Defendant/Respondent:
Monterey County
Office of the County Counsel
Irven L. Grant

Lyles et al. v. State of California et al.
H030059
1 Strictly speaking, the trial court allowed Lyles, the only plaintiff at that point, to file an amended complaint. Lyles and Trustee then appeared as plaintiffs on the amended pleading.
2 Plaintiffs complain in passing about procedural irregularities that arguably have merit but ultimately are of no moment. State filed the motion for summary judgment. County filed a “joinder” to that motion. Lyles objected to the “joinder” on the grounds that it was untimely (filed eight rather than 75 days before the hearing) and unauthorized (no papers accompanied the “joinder”). The trial court never ruled on the objection though its grant order treats the motion as State’s motion alone. Plaintiffs’ later-filed first amended complaint realleged the inverse condemnation cause of action and added the nuisance cause of action. County then demurred to both causes of action on statute-of-limitation grounds. In doing so, it asked the trial court to take judicial notice of the papers and ruling on the summary judgment motion. The sustain order refers to the nuisance cause of action only. The judgment (drafted by plaintiffs’ counsel), however, references the summary judgment motion as joint and the demurrer as joint. Here, plaintiffs take the position that the summary judgment motion was joint and the trial court erred by granting County’s aspect of the motion because County did not raise the statute of limitations as an affirmative defense. Plaintiffs, however, did not raise County’s failure to plead the statute of limitations in opposition to County’s motion for summary judgment. They have therefore waived the point. (People v. Saunders (1993) 5 Cal.4th 580, 589-590.) Even if County was not joined in the summary judgment proceeding, the first amended complaint superseded the original and County was entitled to ground a demurrer to both causes of action on the statute of limitations. (Anmaco, Inc. v. Bohlken (1993) 13 Cal.App.4th 891, 901; Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.)
3 We will not consider the declaration of Mason Case, which plaintiffs offered in opposition to the summary judgment motion, because the trial court sustained State’s objection to that evidence and plaintiffs do not challenge that ruling except in conclusory fashion via footnote. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 [on review of summary judgment, appellate court does not consider evidence to which objections have been made and sustained]; Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 [a point that is merely suggested or interwoven rather than discussed separately under an appropriate heading is deemed to be without foundation and requires no discussion].)
4 We are mindful that we view the material facts in the light most favorable to plaintiffs. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 [summary judgment]; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967 [demurrer].)
5 Even in the medical malpractice context, however, courts have rejected a plaintiff’s attempt to invoke the discovery rule by blaming his own mistaken beliefs. (Bristol-Myers Squibb Co. v. Superior Court (1995) 32 Cal.App.4th 959, overruled on other grounds by Norgart, supra, 21 Cal.4th 383, 410, fn. 8 [court rejected the plaintiff’s argument that she thought she had no basis for suspecting that she had an action against the manufacturer of silicon breast implants because she believed that silicon was an inert substance]; Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 780, 781 [the plaintiff believed that her medical problems were caused by her body’s rejection of breast implants and not the implants themselves--court found that a reasonable person would have been suspicious about the implants as a matter of law].)
--------------------------------------------------------------------------------------------

JAMES ARREOLA et al., Plaintiffs and Respondents,
v.
COUNTY OF MONTEREY et al., Defendants and Appellants. [And five other cases.
[FN*] ]
No. H021339.
Court of Appeal, Sixth District, California.
June 25, 2002.
FN* Baeza v. County of Monterey (No. 106592); Calcote v. County of Monterey (No.
106782); Clint Miller Farms, Inc. v. County of Monterey (No. 106829); Phoenix
Assurance Co. v. County of Monterey (No. 107040); Allendale Mutual Ins. Co. v. County
of Monterey (No. 107041).
SUMMARY
Individuals who had suffered property damage brought an action against the state, a
county and its flood control and water conservation district, and a second county and its
water resources agency, seeking damages in inverse condemnation, and tort damages
for nuisance, dangerous condition of public property, and negligence, arising from flood
damage caused when a river levee project failed during a heavy rainstorm and the flood
waters were further obstructed by a state highway. Plaintiffs alleged that the flooding
occurred due to reduced water capacity in the levee project channel, caused by the
failure of the county defendants to keep that channel clear, and that the state defendant
failed to design the highway with adequate provision for flooding. The jury found all
defendants liable on the tort claims, and the court found all defendants liable on the
inverse condemnation claims and entered a judgment for plaintiffs. (Superior Court of
Monterey County, Nos. 105661, 106592, 106782, 106829, 107040 and 107041, Robert
A. O'Farrell, Judge.)
The Court of Appeal affirmed. The court held that the trial court properly found the
county defendants were liable to plaintiffs in inverse condemnation based on their failure
to properly maintain the levee project, since their knowing failure to clear the project
channel, in the face of repeated warnings and complaints, was not mere negligent
execution of a reasonable maintenance plan, but rather a long-term failure to mitigate a
known danger.

In Bookout v. State et al—it was shown at trial that State had a long History of maintaining the drainage channel

The court held that the trial court did not err in defining the levee
project's water capacity, and that substantial expert evidence supported the jury's
finding, pertinent to plaintiffs' tort claims against the county defendants, that peak flows
during the storm did not exceed the project's design capacity. The *723 court held that
the trial court did not err in finding the state defendant liable in inverse condemnation
based on its unreasonable design of the highway, which failed to account for a
foreseeable flood, and that design immunity (Gov. Code, § 830.6) failed to provide this
defendant with a defense to plaintiffs' tort claims. The court held that both the county
defendant and its water resources agency were properly found liable to plaintiffs, since
the county was directly, and not derivatively, liable. (Opinion by Premo, Acting P. J.,
with Elia and Wunderlich, JJ., concurring.)
HEADNOTES

In Bookout v. State et al—It was shown County road drainage changes by installing curb- gutter- Bike lanes along with implementing curb and gutter requirements since 2000

Classified to California Digest of Official Reports
(1) Appellate Review § 145--Scope of Review--Questions of Law and Fact.
When arguments on appeal are related to facts that are materially undisputed, the
appellate court independently reviews the trial court's findings and conclusions.
(2) Eminent Domain § 132--Inverse Condemnation--Nature and Purpose of Action--
Against Public Entity--Policy--Limitations on Claim.
When a public use results in damage to private property without having been preceded
by just compensation, the property owner may bring an inverse condemnation action
against the public entity to recover it. The fundamental policy for the constitutional
requirement of just compensation (Cal. Const., art. I, § 19) is based on a consideration
of whether the owner of the damaged property if uncompensated would contribute more
than his or her proper share to the public undertaking. Any actual physical injury to real
property proximately caused by a public improvement as deliberately designed and
constructed is compensable whether foreseeable or not. The only limits to a claim are
that (1) the injuries must be physical injuries of real property, and (2) the injuries must
have been proximately caused by the public improvement as deliberately constructed
and planned.

In Bookout v. State et al—County, Caltrans and OCSD improved and used the Drainage channel since changing the drainage system in the mid 60’s

(3) Waters § 93--Protection Against Surface Waters--Public Improvements-- Common
Enemy Doctrine--Natural Watercourse Rule--Immunity Limited by Rule of
Reasonableness.
In certain circumstances particular to water law, a landowner has a right to inflict
damages upon the property of others for the purpose of protecting his or her own
property. These circumstances include the erection of flood control measures (the
common enemy doctrine) and the discharge of surface water into a natural watercourse
(the natural watercourse rule). *724 However, a public entity is not immunized from
liability under these rules, but rather is subject to a rule of reasonableness. When a
public agency's design, construction, or maintenance of a flood control project poses an
unreasonable risk of harm to the plaintiffs, and the unreasonable aspect of the
improvement is a substantial cause of the damage, the plaintiffs may recover regardless
of the fact that the project's purpose is to contain the common enemy of floodwaters.
The public entity is not immune from suit, but neither is it strictly liable. A public entity's
privilege to discharge surface water into a natural watercourse is also a conditional
privilege, subject to a rule of reasonableness.

In Bookout v. State et al—Both Caltrans and OCSD were found to do maintenance to this drainage system after and before OCSD designed their PVC pipe into this drainage system with consulting the County Health Department. Their lack of maintenance is the substantial cause of the damage seen.

(4) Waters § 96--Protection Against Floodwaters--Public Entity's Liability in Inverse
Condemnation--Rule of Reasonableness--Determination of Reasonableness.
In matters involving flood control projects, a public entity will be liable in inverse
condemnation if its design, construction, or maintenance of a public improvement poses
an unreasonable risk of harm to the plaintiff, and the unreasonable aspect of the
improvement is a substantial cause of the damage.

In Bookout v. State et al—Caltrans and County design, construction of a new inlet and the haphazard maintenance all pose an unreasonable risk. This is further followed up with the evidence at trial of a known potential danger which Caltrans, County, OCSD, Railroad all had knowledge of and then chose to shovel, grade, and dredge debris through this storm water drainage system.

To determine reasonableness, a trial
court must consider the following factors: (1) the overall public purpose being 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 damage in relation to risk-bearing
capabilities, (5) the extent to which damage of the kind the plaintiff sustained is
generally considered as a normal risk of land ownership, and (6) the degree to which
similar damage is distributed at large over other beneficiaries of the project or is
peculiar only to the plaintiff.

In Bookout v. State et al—This Flooding is not a normal risk of land ownership. Flooding State Highway 1 serves no purpose as this can be abated at any time. The Public entity’s have alternatives with lower risks available to them.

(5) Waters § 96--Protection Against Floodwaters--Public Entity's Liability:Eminent
Domain § 132--Inverse Condemnation--Trial Court's Determination of Reasonableness.
In an inverse condemnation action against two counties, a county flood control and
water conservation district, and a county water resources agency, by individuals who
had suffered property damage when a river levee project failed during a heavy
rainstorm, the trial court properly analyzed the reasonableness of defendants' actions in
finding they were liable to plaintiffs. The court balanced the public need for flood control
against the gravity of the harm caused by the unnecessary damage to plaintiffs'
property in finding that defendants acted unreasonably. In so doing, the court properly
considered (1) the overall public purpose being served by the improvement project, (2)
the degree to which plaintiffs' loss was offset by reciprocal benefits, (3) the availability
to the public entity of *725 feasible alternatives with lower risks, (4) the severity of
plaintiffs' damage in relation to risk-bearing capabilities, (5) the extent to which damage
of the kind plaintiffs sustained was generally considered as a normal risk of land
ownership, and (6) the degree to which similar damage was distributed at large over
other beneficiaries of the project or was peculiar only to plaintiffs. Based on these
considerations, the court found that defendants' long-standing negligent operation of the
project served no legitimate purpose, that feasible alternatives were available, and that
the flood would not have occurred had defendants properly maintained the project.
(6a, 6b, 6c) Waters § 96--Protection Against Floodwaters--Public Entity's
Liability:Eminent Domain § 132--Inverse Condemnation--Liability Based on Improper
Maintenance of Public Project.

In Bookout v. State et al—The Trial Court erred when the Court ignored the long-standing negligent operation of the project served no legitimate purpose, that feasible alternatives were available, and that the flood would not have occurred had defendants properly maintained the project

In an inverse condemnation action against two counties, a county flood control and
water conservation district, and a county water resources agency, by individuals who
had suffered property damage when a river levee project failed during a heavy
rainstorm, the trial court did not err in basing defendants' liability on their failure to
properly maintain the project. Inadequate maintenance can support a finding of a public
entity's liability in inverse condemnation. The deliberateness required for inverse
condemnation liability is satisfied by a finding that the public improvement, as designed,
constructed, and maintained, presented an inherent risk of danger to private property
and the inherent risk materialized and caused damage. In this case, the trial court
expressly found that the manner in which the levee project channel was maintained for
over 20 years was a deliberate policy.
Further, substantial evidence supported the trial
court's finding that defendants' maintenance plan was unreasonable and deliberate.
Defendants' knowing failure to clear the project channel, in the face of repeated
warnings and complaints, was not mere negligent execution of a reasonable
maintenance plan, but rather a long-term failure to mitigate a known danger.
[See 8 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 1057; 11
Miller & Starr, Cal. Real Estate (3d ed. 2001) §§ 30:2-30:8; West's Key Number Digest,
Eminent Domain 2(10).]

In Bookout v. State et al—The Trial Court erred when presented the Substantial evidence of Caltrans and OCSD Maintenance going back over 20 years. Defendants' knowing failure to clear the project channel, in the face of repeated warnings and complaints, was not mere negligent execution of a reasonable
maintenance plan, but rather a long-term failure to mitigate a known danger.


(7) Eminent Domain § 132--Inverse Condemnation--Liability of Public Entity--Relation to
Public Use--Whether Negligence Can Support Claim.
To be subject to liability in inverse condemnation, the governmental action at issue must
relate to the public use element of Cal. Const., art. I, § 19. The destruction or damaging
of property is sufficiently connected with public use if the injury is a result of dangers
*726 inherent in the construction of the public improvement as distinguished from
dangers arising from the negligent operation of the improvement. A public entity's
maintenance of a public improvement constitutes the constitutionally required public
use, so long as the entity deliberately acts to undertake the particular plan or manner of
maintenance. The necessary finding is that the wrongful act be part of the deliberate
design, construction, or maintenance of the public improvement. The fundamental
justification is that the government, acting in furtherance of public objectives, is taking a
calculated risk that private property may be damaged. Simple negligence cannot support
a constitutional claim. So long as the entity has made the deliberate calculated decision
to proceed with a course of conduct, in spite of a known risk, just compensation will be
owed.

In Bookout v. State et al— Caltrans, County, OCSD and Railroad have all made the deliberate calculated decision to proceed with a course of conduct, in spite of a known risk. Caltrans and OCSD dredging, grading and shoveling debris into this drainage system are all wrongful acts going against the design and construction of this drainage system!

(8) Appellate Review § 155--Scope of Review--Sufficiency of Evidence-- Inferences.
In reviewing the sufficiency of the evidence to support the findings of the trial court, the
appellate court considers the evidence in the light most favorable to the prevailing
parties, giving them the benefit of every reasonable inference and resolving conflicts in
support of the judgment.
(9a, 9b) Waters § 96--Protection Against Floodwaters--Public Entity's Liability--Design
Capacity of Levee--Water Capacity Plus Freeboard.
In an action against two counties, a county flood control and water conservation district,
and a county water resources agency, by individuals who sought damages in inverse
condemnation and tort damages arising from damage to plaintiffs' property that resulted
from the failure of a river levee project during a heavy rainstorm, the trial court did not
err in defining the project's water capacity, and substantial expert evidence supported
the jury's finding that peak flows during the storm did not exceed that capacity. When
an independently generated force, such as a rainstorm, contributes to the injury,
proximate cause is established when the injury occurred in substantial part because the
public improvement failed to function as it was intended.

In Bookout v. State et al—Expert Testimony was ignored as the Trial Court erred in making their own assumptions as to what the evidence showed.

Causation is not established,
however, when the storm exceeds the project's design capacity. In this case, it would
have been improper to fail to include the three-foot freeboard, which was the distance
from the top of the levee to the surface of the water at maximum capacity, within the
design capacity, since the extra room the freeboard was intended to provide was
eliminated by defendants' ineffective maintenance. Thus, it was appropriate to permit
the finder of fact to decide if the flood occasioned by the rainstorm exceeded the
protection the project was intended to provide, including the freeboard, which was part
of that protection. *727
(10) Appellate Review § 41--Presenting and Preserving Questions in Trial Court--
Witnesses--Objection to Expert Evidence.
When a party fails to make a record of its objection to expert evidence at trial, that
party fails to preserve the issue for appeal.
[See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 394.]


In Bookout v. State et al—County, Caltrans, OCSD and Railroad failed to object to expert testimony and evidence.

(11) Evidence § 81--Opinion Evidence--Expert Witnesses.
Evidence of scientific techniques that have not proven reliable and generally accepted by
others in the field is not admissible as evidence. However, this rule does not apply to the
personal opinions of an expert.
(12a, 12b) Waters § 96--Protection Against Floodwaters--State's Liability for Design of
Highway Embankment That Captured Floodwaters:Government Tort Liability § 9.2--
Dangerous Condition of Public Property.
In an action against the state by individuals who sought damages in inverse
condemnation and tort damages arising from damage to plaintiffs' property from
floodwaters that were obstructed by a state highway, the trial court did not err in finding
defendant liable based on its design of the highway, which provided for a raised
embankment that acted to dam the floodwaters. Public policy does not necessarily
require a reasonableness calculus in all contexts in which a trial court determines the
inverse condemnation liability of a public entity. In this case, public policy favored strict
liability rather than reasonableness, since defendant was bound not to obstruct the flow
of water from plaintiffs' upstream land. Further, defendant had a duty to avoid
obstructing escaping floodwater, regardless of the cause of the flood. The traditional rule
applicable to riparian landowners, according to which both upstream and downstream
landowners have a duty to avoid altering the natural system of drainage in any way that
would increase the burden on the other, was applicable to defendant. Further, the harm
that resulted was unquestionably foreseeable, since the state's highway planning manual
required that a highway's drainage structures be able to accommodate a 100-year
storm, and defendant was aware that the levee project on the same floodplain as the
highway would not accommodate such a storm.

In Bookout v. State et al—The overwhelming evidence presented to the trial court of Caltrans and OCSD actions in obstructing escaping floodwater is well documented in court Exhibits. #1464, 1514, 1541, 1517, 1488, 1536, 1467,1288, OCSD 1342, 1338, 1396, 1347, 1351, 1058, 1341, 1339, 1278, 1337, 1102, 1397,

(13) Negligence § 92--Actions--Questions of Law and Fact--Duty of Care.
The question of whether a duty exists is one of law. The court's task in determining duty
is to evaluate generally whether the conduct at issue is sufficiently likely to result in the
kind of harm experienced that liability may appropriately be imposed. Legal duties are
not discoverable facts of nature, but merely conclusory expressions *728 that, in cases
of a particular type, liability should be imposed for damage done. All persons have a
duty to use ordinary care to prevent others from being injured as the result of their
conduct. Duty is usually determined based upon a number of considerations;
foreseeability of a particular kind of harm is one of the most crucial.
(14a, 14b, 14c, 14d) Government Tort Liability § 10--Grounds for Relief--Defense of
Design Immunity--Required Showing--Reasonableness of Design:Nuisances § 9--Liability
of Public Entities.
In an action against the state by individuals who sought tort damages arising from
damage to plaintiffs' property from floodwaters that were obstructed by a state highway,
the trial court did not err in denying defendant's motion for a directed verdict based on
design immunity (Gov. Code, § 830.6). Defendant failed to present evidence of a basis
upon which a reasonable state official could have approved the highway design. The
culverts installed through the highway embankment were not designed to accommodate
floodwater. Defendant knew that the river levee project that was located in the same
floodplain as the highway could not accommodate a 100-year storm, that flooding was
foreseeable, and that the drainage design should have taken that into account.
Defendant did not offer any evidence indicating that a reasonable public employee would
have approved a design that did not take flooding into account. Further, the failure of
the river levee project in a heavy rainstorm, which caused the flood, was not a
superseding cause that extinguished defendant's liability, since the flooding was
foreseeable. Thus, the flooding, whether caused by the levee failure or a 100-year
storm, was not so extraordinary an event that defendant should have been relieved of
liability.

In Bookout v. State et al-- Defendants failed to present evidence of a basis upon which a reasonable state official could have approved the highway design. Defendants did not offer any evidence indicating that a reasonable public employee would have approved a design that did not take flooding into account.

(15) Government Tort Liability § 10--Grounds for Relief--Defense of Design Immunity--
Required Showing--Reasonableness of Design--Trial Court Determination.
A public entity is immune from liability for a dangerous condition of public property
under Gov. Code, § 830.6, if the injury was caused by a public improvement that was
constructed pursuant to a plan or design approved in advance by the entity, and the
entity can plead or prove three essential elements: (1) a causal relationship between the
plan and the accident, (2) discretionary approval of the plan prior to construction, and
(3) substantial evidence supporting the reasonableness of the design. Resolution of the
reasonableness of the design is a matter for the court, not the jury. The rationale behind
design immunity is to prevent a jury from reweighing the same factors considered by
the governmental entity that approved the design. The trial court must apply the
deferential substantial evidence standard to determine whether any reasonable state
official could *729 have approved the challenged design. If the record contains the
requisite substantial evidence, the immunity applies, even if the plaintiff has presented
evidence that the design was defective. In order to be considered substantial, the
evidence must be of solid value, which reasonably inspires confidence.

In Bookout v. State et al—Caltrans, County and OCSD drainage changes since December 2000 Cannot prove a public improvement that was constructed pursuant to a plan or design approved in advance by the entity, and the entity’s cannot plead or prove these three essential elements: (1) a causal relationship between the plan and the accident, (2) discretionary approval of the plan prior to construction, and (3) substantial evidence supporting the reasonableness of the design.

(16) Appellate Review § 135--Scope of Review--Presumptions--Where Ruling Correct,
but Reasoning Not.
A ruling or decision that is correct in law will not be disturbed on appeal merely because
it was issued by the trial court for the wrong reason.
(17) Negligence § 19--Actions--Trial--Questions of Law and Fact-- Proximate Cause--
Superseding Cause:Eminent Domain § 131--Inverse Condemnation-- Defense.
Under traditional negligence analysis, an intervening force is one that actively operates
to produce harm after the defendant's negligent act or omission has been committed. A
defendant's conduct is superseded as a legal cause of an injury if, among other things,
the intervening force is highly unusual or extraordinary, not reasonably likely to happen,
and, therefore, not foreseeable. Similar considerations may apply in the context of
inverse condemnation. The defendant has the burden to prove the affirmative defense of
superseding cause, that is, that the intervening event is so highly unusual or
extraordinary that it was unforeseeable. The question is usually one for the trier of fact.
However, when the facts are materially undisputed, the appellate court applies its
independent review.
[See 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 975.]

In Bookout v. State et al—Caltrans, County and OCSD Defendants cannot prove the affirmative defense of superseding cause, that is, that the intervening event is so highly unusual or extraordinary that it was unforeseeable Given the facts of their knowledge and exhibits of their actions!

(18) Waters § 96--Protection Against Floodwaters--Public Entity's Liability:Eminent
Domain § 132--Inverse Condemnation--Concurrent Liability of County and County Water
Resources Agency.
In an action against a county and the county water resources agency by individuals who
sought damages in inverse condemnation and tort damages arising from damage to
plaintiffs' property that resulted from the failure of a river levee project during a heavy
rainstorm, both defendants were properly found liable to plaintiffs. The record was clear
that the judgment against the county was based on its direct liability. In an inverse
condemnation action, so long as the plaintiffs can show a public entity's substantial
participation in a public project that proximately caused injury, it is immaterial which
entity had the ultimate responsibility for operation of the project. The basis for liability is
that the public entity had the power to control or direct the aspect *730 of the
improvement that is alleged to have caused the injury. In this case, the county
expressly assumed responsibility for the project's operation and maintenance, and also
exercised control by virtue of its financial control of the agency. In addition, the county
board of supervisors was aware of the project's maintenance needs, and of the risk of
flooding it posed. In failing to expend funds on the project, the county took the risk that
plaintiffs would be harmed. Therefore, it was proper to require the county to bear its
share of plaintiffs' loss.


In Bookout v. State et al—Caltrans, County and OCSD each had direct liability. Each had substantial participation that proximately caused injury, it is immaterial which entity had the ultimate responsibility for operation of the project. The basis for liability is that the public entity’s had the power to control or direct the aspect of the improvements and lack of that is alleged to have caused the injury. In this case, Caltrans expressly assumed responsibility for the project's operation and maintenance, and also exercised control by virtue of its financial control of the agency with their drainage changes since December 2000.

In addition, the county board of supervisors, Caltrans Supervision and Oceano Community Service District were aware of the project's maintenance needs, and of the risk of flooding it posed. In failing to expend funds on the project, the county took the risk that plaintiff would be harmed. Therefore, it was proper to require Caltrans, County, OCSD and the Railroad to bear its share of plaintiffs' loss.


COUNSEL
Lepper & Harrington, Gary M. Lepper, Matthew P. Harrington; and Samuel Torres, Jr.,
County Counsel, for Defendants and Appellants County of Santa Cruz and Santa Cruz
County Flood Control and Water Conservation District.
Bruce A. Behrens, David Gossage, Janet Wong and Lucille Y. Baca for Defendant and
Appellant State of California.
McDonough, Holland & Allen, Kronick, Moskovitz, Tiedemann & Girard, Mark A. Wasser,
Andrew P. Pugno; and Adrienne M. Grover, County Counsel, for Defendants and
Appellants County of Monterey and Monterey County Water Resources Agency.
Morrison & Foerster, James P. Bennett, George C. Harris, Andrew D. Muhlbach, John A.
Pacheco; 1-415-268-7000


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Law Offices of Haselton & Haselton, Joseph G. Haselton;
Carlson, Calladine &
Peterson, Randy W. Gimple;
Johnson & James,
Omar F. James and Robert K. Johnson

for Plaintiffs and Respondents.
PREMO, Acting P. J.
Defendants, County of Santa Cruz, Santa Cruz County Flood Control and Water
Conservation District (collectively Santa Cruz), Monterey County Water Resources
Agency (MCWRA), and County of Monterey (Monterey), were found liable in tort and
inverse condemnation for extensive damage caused when the Pajaro River Levee Project
(the Project) failed during a heavy rainstorm in 1995. Defendant State of California
(State) was also found liable in tort and inverse condemnation for damage caused when
Highway 1 obstructed the path of the floodwater on its way to the sea. For reasons we
shall explain, we affirm. *731
A. Introduction
This action commenced with the filing of six different complaints on behalf of
approximately 300 plaintiffs. The essence of plaintiffs' claims against Santa Cruz,
MCWRA, and Monterey was that their failure to keep the Project channel clear
diminished its capacity and ultimately caused a levee to fail during the storm. As against
State, plaintiffs alleged that the drainage culverts under Highway 1 were too small to
drain the flood and the resultant damming effect caused higher flood levels and
destructive ponding of the floodwater.
The individual matters were consolidated, and the liability and damages phases were
bifurcated for trial. The tort causes of action were tried to a jury. The inverse
condemnation claims were simultaneously tried to the court. The jury found all
defendants liable for dangerous condition of public property and nuisance. The counties
and the water agencies were also found liable for negligence, and, with the exception of
Monterey, for violation of mandatory duty. The trial court found all defendants liable on
the inverse condemnation claims.
In order to obtain review of the liability issues prior to trial of the damages phase the
parties selected Tony's Auto Center as a representative plaintiff and stipulated to
damages as to that plaintiff only. Judgment in favor of Tony's Auto Center was filed
January 6, 2000. The county and water agency defendants jointly moved for a new trial
and that motion was denied. All defendants filed timely notice of appeal. [FN1]
FN1 Although appeal is taken only from the judgment in favor of the single
representative plaintiff, our decision is applicable to the entire action. The following
discussion refers to "plaintiffs" as a reflection of that practical reality.
B. Facts
1. The Project
The Pajaro River is formed by the union of several smaller tributaries in the Counties of
San Benito and Santa Clara. It flows through Chittenden Pass in the Santa Cruz
Mountains and emerges into the Pajaro Valley, eventually emptying into Monterey Bay.
The river forms the border between the Counties of Santa Cruz on the north and
Monterey on the south. The Pajaro Valley is an historic floodplain. Today, most of the
valley is devoted to agriculture. Its two population centers are the City of Watsonville on
the Santa Cruz side of the river, and the small town of Pajaro just across the river from
Watsonville on the Monterey side. *732
The federal Flood Control Act of 1944 (Pub.L. No. 78-534, ch. 665 (Dec. 22, 1944) 58
Stat. 887) authorized the United States Army Corps of Engineers (the Corps) to
construct the Project upon receipt of assurances from the responsible local agencies that
they would, among other things, operate and maintain the Project as the Corps
required. The California Water Resources Act authorized the State's portion of the
project and directed the four affected counties (Santa Clara, San Benito, Santa Cruz,
and Monterey) to give the required written assurances. (Stats. 1945, ch. 1514, p.
2827.) Before the counties took any action, the California Legislature created the
Monterey County Flood Control and Water Conservation District, and the new district
replaced Monterey for purposes of the Water Resources Act. (Stats. 1947, ch. 699, §§ 2,
4, p. 1739.) MCWRA succeeded to the responsibilities of the Monterey County Flood
Control and Water Conservation District in 1990. (Stats. 1990, ch. 1159, p. 4831.)
In 1947, the three counties and Monterey County Flood Control and Water Conservation
District signed a resolution giving the assurances required by the federal Flood Control
Act. Shortly thereafter, Monterey joined the other three counties in executing an
indemnity agreement under which each county accepted responsibility for the portion of
the Project located within its borders, and guaranteed as to each other the assurances
that had been given to the Corps.
2. Maintenance of the Project
The Project design consisted primarily of clearing the river channel and constructing
earthen levees along both sides of the river, beginning near Murphy's Crossing east of
Watsonville and extending westward to the mouth of the river. The Corps completed the
Project in 1949 and transferred responsibility for its maintenance to the local interests.
The Corps provided an "Operation and Maintenance Manual" to guide maintenance
efforts. One goal of maintenance was to maintain the Project's capacity. Federal
regulations, which were incorporated into the manual, specified that the channel be kept
clear of shoals, weeds and wild growth. (See 33 C.F.R. § 208.10(g)(1) (2001).)
Vegetation and shoals in the channel decrease its capacity. Therefore, it was important
to keep the channel clear in order to maintain the capacity it was intended to have.
The Corps had designed the Project to have a capacity of 19,000 cubic feet per second
(c.f.s.). The Corps' 1946 "Definite Project Report" stated that the Project would be built
to "contain a two-per-cent-chance flood within a 3-foot freeboard." The "freeboard" to
which the report refers is the distance from the top of the levee to the surface of the
water at the level the project *733 is designed to carry. Freeboard is included as a safety
feature. It provides additional capacity to take care of unforeseen factors, although it is
not intended to contain water for long periods of time. The Corps' report explained: "The
channel capacity will be 19,000 c.f.s. above the mouth of Corralitos Creek [the point at
which the Project failed in 1995 [FN2] ] ...."2 The Corps' documents pointed out that by
encroaching on the freeboard the Project would hold 23,000 c.f.s. at the pertinent
location and still have one foot of freeboard remaining. That means that the Project was
designed to contain 19,000 c.f.s. at the point at which the Project ultimately failed, and,
if unaccounted factors had not diminished the channel's capacity, there would still be
room to safely carry, at least for a short period of time, an additional 4,000 c.f.s.
FN2 Corralitos Creek is also known as Salsipuedes Creek. It joins the Pajaro River just
east of the City of Watsonville.
From 1949 until 1972, the vegetation and sandbars were removed with a tractor and a
bulldozer. The effectiveness of these channel clearing efforts was demonstrated by the
Project's performance during two storms in the 1950's. In a 1955 storm, the Chittenden
[FN3] gauge reported flows of 24,000 c.f.s. Even with such a high flow there remained
over two feet of freeboard near the point where the levee failed in 1995. In 1958 the
Project contained flows of 23,500 c.f.s., although with slightly less freeboard remaining.
FN3 The Chittenden gauge, which is located on the river several miles east of the
Project, continuously measures the depth of the water. Hydrologists periodically
measure the width and velocity of the stream. By graphing the periodic measurements
they can estimate the volume of the discharge at any given depth. The data from the
Chittenden gauge is used to estimate the water flow further down the river in the Project
channel.
The continuous mechanized clearing of the channel stopped around 1972. The California
Department of Fish and Game (Fish and Game) had demanded a halt to mechanical
clearing of the channel in order to protect the riparian habitat. In an apparent attempt to
conform to both the demands of Fish and Game and the Corps' Project maintenance
requirements, Santa Cruz began using herbicides to kill the vegetation in the channel.
Without regular mechanized clearing, however, vegetation and sandbars built up,
impeding the flow of winter runoff. As the Project deteriorated, it reverted more and
more to riparian habitat, which in turn encouraged the claim of Fish and Game to
jurisdiction over the Project. Although Fish and Game had procedures by which the local
agencies could appeal the department's decisions, the local agencies never appealed.
In addition to Fish and Game, local environmental interests made thorough maintenance
of the channel more challenging by actively supporting efforts to preserve the river's
habitat. In 1976, Supervisor Gary Patton wrote *734 to the Legislature on behalf of the
Santa Cruz County Board of Supervisors to support Fish and Game policies and to
encourage strong legislation to protect river habitat and regulate streambed alteration.
In 1977, Santa Cruz adopted an ordinance designed to "preserve, protect and restore
riparian corridors." In 1980, the county fish and game commission was given authority
to restore fishery habitat in the Pajaro River, and to review public works projects that
involved any alteration of the streambed or of streamside vegetation.
As the channel became more clogged, thorough clearing became more expensive. The
passage of Proposition 13 in 1978 made funding more of a problem in general so that
through the 1980's the Santa Cruz County Department of Public Works did not have
funds to remove trees and other vegetation in the channel. MCWRA [FN4] had no
significant funds to participate in channel clearing efforts, and since 1974 had
concentrated almost exclusively on levee maintenance. Although Supervisor Marc Del
Piero asked his colleagues several times to approve allocations to MCWRA from
Monterey's general fund, with one minor exception, he was never successful.
FN4 Unless the context requires a distinction, we shall hereafter refer to MCWRA and its
predecessor, Monterey County Flood Control and Water Conservation District, simply as
MCWRA.
The presence of vegetation and sandbars within the channel proliferated and posed an
acknowledged risk of flooding. By 1977 area farmers had become concerned about the
lack of mechanized clearing and expressed their concerns to supervisors in both
counties. Watsonville officials wrote to the Santa Cruz County Department of Public
Works in 1985, 1987 and 1988, asking that something be done. The agencies
responsible for Project maintenance were also worried about the condition of the
channel. By 1988, Joseph Madruga, chief engineer for MCWRA, had come to the
conclusion that vegetation and sandbars in the channel had reduced its capacity by at
least 50 percent. John Fantham, director of the Santa Cruz County Department of Public
Works, had recognized the risk of flooding as early as 1983. Later, both agencies
acknowledged that the 1995 flood was due in substantial part to the failure to clear the
channel.
Meanwhile, the Corps had been performing inspections of the Project about twice a year.
Although the Corps issued only one notice that the Project was in an unacceptable
condition, the majority of the semiannual evaluations expressed concern that dense
vegetation in the channel posed a serious constriction on the flow. Many of the Corps'
evaluations included notice to both the MCWRA board and the Santa Cruz County Board
of *735 Supervisors that lack of maintenance could disqualify the Project for future
federal assistance in the event of a flood. The Corps actually did temporarily disqualify
the Project for that reason in 1992.
By 1988, the issue had come to the attention of Congressman Leon Panetta.
Congressman Panetta convened the Pajaro River Task Force to determine what was to
be done about the conflicting concerns of flood control and habitat restoration. The task
force was made up of representatives from all the responsible and affected agencies,
Fish and Game, and the Corps. Supervisor Del Piero and Mr. Madruga represented the
Monterey interests. Mr. Fantham and Supervisor Robley Levy represented Santa Cruz.
After over two years of work, the task force produced the "Pajaro River Corridor
Management Plan," which called for the hand clearing of vegetation. Both Mr. Fantham
and Mr. Madruga felt that the plan was inadequate, and would do no more than maintain
the status quo. Mr. Madruga voiced his objection at the task force meeting and in a
letter to Mr. Fantham in which he advocated a program of thinning and removal of
selected vegetation using heavy equipment. According to Mr. Madruga, this was the
"only method that can accomplish the flood protection necessary to protect the citizens
of the Pajaro Valley at a reasonable cost and in a reasonable time frame."
Notwithstanding these reservations, the task force unanimously approved the plan in
October 1991, although there is no evidence it was ever formally adopted by the
agencies charged with implementing it.
Finally, beginning in the early 1990's, the agencies on both sides of the river began
more aggressive efforts to clear the channel. In 1991, at the urging of Supervisor Del
Piero, MCWRA applied for a permit to use a backhoe and bulldozer to clear the channel.
Fish and Game issued the permit, but limited its permission to hand clearing and then
later halted the work. In 1993, at the invitation of area farmers, then Director of Fish
and Game, Boyd Gibbons toured the Project. Gibbons was sufficiently concerned with
the condition of the channel that he instructed his staff to work with the counties to get
the necessary work done as soon as possible. Thereafter, Santa Cruz obtained permits
to do some mechanized clearing of the channel. However, the work that was done was
not enough to entirely clear the vegetation and sediment that had been allowed to
collect over the preceding 20 years.
3. Highway 1
Highway 1 runs north to south and crosses the Pajaro River at the lower end of the
Pajaro Valley, west of Watsonville. State began planning the construction of the subject
portion of the highway in the 1950's. At the time, *736 Highway 1 ran through
Watsonville. The new section was to bypass the city. The bypass required the
construction of a new bridge over the river and an earthen embankment elevating the
highway at the south end of the bridge. Trafton Road today runs under Highway 1 on
the southern side of the river. Before State built the bypass, water passed through this
area along a path in the vicinity of Trafton Road. The planned embankment would
obstruct the existing drainage in that area. To compensate, State needed to design a
drainage system for the embankment.
Investigation, design and construction of the embankment continued through the late
1960's. State's design criteria required that drainage through embankments be able to
discharge a 100-year flood without causing water to back up over adjacent private
property. State's engineers explained that this criterion did not require the drainage
system in this case to accommodate flows escaping from the Project channel. According
to State, the drainage needed only to pass rainwater runoff from a 700-acre area
immediately adjacent to the highway. Using those guidelines, State engineers approved
plans for two 48-inch culverts that could accommodate 98 c.f.s. The design documents
showed that this design actually anticipated that "[s]hallow flooding on peak flow can be
expected for some distance outside the [right of way]."
4. The Flood
The Project protected the valley for over 45 years until the storm of March 1995. On the
night of March 10-11, 1995, the river overtopped the levee on the Monterey side,
upriver from its junction with Corralitos (Salsipuedes) Creek. The resultant rush of water
over the levee eroded the back side of the levee and it gave way, inundating the
surrounding valley.
The vegetation and sediment that had been allowed to accumulate in the channel caused
the river flow to be higher than it would have been had it been properly cleared. On the
night of the storm, the maximum flow at the Chittenden gauge was estimated to have
been 21,300 c.f.s. Plaintiffs' expert, Dr. Robert Curry, testified that in his opinion the
21,300 c.f.s. overestimated the flow because it did not take into account a number of
factors taking place within the channel or downriver from the gauge. According to Dr.
Curry, these factors served to reduce the actual flow at the break site to 16,000 to
18,500 c.f.s., most likely around 17,500 c.f.s.
When the levee failed, the floodwaters ran onto the historically flooded valley floor until
they reached the Highway 1 embankment. The Highway 1 culverts were quickly
overwhelmed, so that the water backed up on the east *737 side of the highway,
flooding more acreage than it otherwise would have flooded, and standing in many
places for an extended period of time. The standing water exacerbated the flood damage
because it caused the deposition of vast amounts of destructive sediment, all of which
had to be removed when the floodwaters finally receded.
C. Discussion
1. Summary of Issues and Scope of Review
The two counties and their related water agencies contend: (1) the trial court did not
make the determination of unreasonableness that is necessary to support inverse
condemnation liability, (2) inverse condemnation liability may not be based on shoddy
maintenance of a public improvement, (3) the trial court used an erroneous definition of
the Project's "design capacity," (4) there was insufficient evidence to support a finding
that the Project did not perform within its capacity, and (5) the trial court erred in
adopting the plaintiffs' proposed statement of decision.
MCWRA separately contends that the trial court erred in failing to apportion among the
defendants the damages of the single plaintiff, Tony's Auto Center. Since MCWRA
stipulated to the judgment in the form it was entered, MCWRA is estopped to complain
of error, if any there was. (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 420 [185
Cal.Rptr. 654, 650 P.2d 1171].)
State contends: (1) the trial court applied an improper standard of unreasonableness in
ruling on the inverse condemnation claim, (2) State could not be liable in tort because it
had no duty to protect plaintiffs from failure of the Project, (3) State is immune from
tort liability under Government Code section 830.6 (design immunity), and (4) the
breach of the levee was a superseding cause.
Monterey argues separately that it is not liable because it did not have any responsibility
for the Project.
(1) Except where noted, defendants' arguments relate to facts that are materially
undisputed. We therefore apply our independent review. (Ghir-ardo v. Antonioli (1994) 8
Cal.4th 791, 799 [35 Cal.Rptr.2d 418, 883 P.2d 960].)
2. Inverse Condemnation-Legal Background
(2) "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." (Cal. Const., art. I, § 19, hereafter article I, section 19.) When a public
use results in damage to private property without having been preceded by just
compensation, the property owner may proceed against the public entity to recover it.
Such a cause of action is *738 denominated "inverse condemnation." (Breidert v.
Southern Pac. Co. (1964) 61 Cal.2d 659, 663, fn. 1 [39 Cal.Rptr. 903, 394 P.2d 719].)
Early inverse condemnation cases presumed that article I, section 19 (then § 14) merely
provided an exception to the general rule of governmental immunity and that a public
entity could only be liable in inverse condemnation if a private party could be held liable
for the same injury. (Archer v. City of Los Angeles (1941) 19 Cal.2d 19, 24 [119 P.2d 1]
(Archer).) Albers v. County of Los Angeles (1965) 62 Cal.2d 250 [42 Cal.Rptr. 89, 398
P.2d 129] (Albers) explained that the constitutional provision actually provided a
broader basis for governmental liability. Albers confirmed that the fundamental policy
basis for the constitutional requirement of just compensation is a consideration of "
'whether the owner of the damaged property if uncompensated would contribute more
than his proper share to the public undertaking.' " (Id. at p. 262.) According to Albers,
"any actual physical injury to real property proximately caused by [a public]
improvement as deliberately designed and constructed is compensable under [article I,
section 19] of our Constitution whether foreseeable or not." (Id. at pp. 263-264.) The
only limits to the claim were that (1) the injuries must be physical injuries of real
property, and (2) the injuries must have been proximately caused by the public
improvement as deliberately constructed and planned. (Holtz v. Superior Court (1970) 3
Cal.3d 296, 304 [90 Cal.Rptr. 345, 475 P.2d 441] (Holtz).)
(3) Although Albers had held that the inverse condemnation plaintiff was entitled to
compensation without regard to fault, Albers left open two exceptions to that rule-the
Gray exception, which is not pertinent here, and the Archer exception. (Albers, supra,
62 Cal.2d at p. 263; and see Gray v. Reclamation District No. 1500 (1917) 174 Cal. 622
[163 P. 1024]; Archer, supra, 19 Cal.2d at p. 24.) In brief, the so-called Archer
exception involved the circumstances, peculiar to water law, in which a landowner had a
right to inflict damage upon the property of others for the purpose of protecting his or
her own property. Such circumstances included the erection of flood control measures
(the common enemy doctrine) and the discharge of surface water into a natural
watercourse (the natural watercourse rule). Under private water law analysis, these
rules immunized the landowner from liability for resulting damage to downstream
property. (See Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 563-
564 [253 Cal.Rptr. 693, 764 P.2d 1070] (Belair); Archer, supra, 19 Cal.2d at pp. 24-26;
Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 350 [27 Cal.Rptr.2d 613, 867 P.2d
724] (Locklin).) Presumably, under the Archer exception, a public entity would be
completely immune from liability if the entity's conduct were of the type that would have
been immune under these water law principles.
Like this case, Belair involved flood damage that occurred after a levee failed. Belair
modified Albers and adopted a rule of reasonableness to be *739 applied in the context
of flood control litigation. Belair determined that application of the Albers rule of strict
liability would discourage needed flood control projects by making the entity the insurer
of 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 private
landowner by requiring the landowner to bear a disproportionate share of the damage
caused 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 control
project is shown to have posed an unreasonable risk of harm to the plaintiffs, and such
unreasonable design, construction or maintenance constituted a substantial cause of the
damages, plaintiffs may recover regardless of the fact that the project's purpose is to
contain the 'common enemy' of floodwaters." (Ibid.) Under Belair, the public entity is
not 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 had
alleged that increased runoff from creek side public works caused erosion damage to
their property downstream. Locklin held that the privilege to discharge surface water
into a natural watercourse (the natural watercourse rule) was a conditional privilege,
subject to the Belair rule of reasonableness. (4) Locklin explained that to determine
reasonableness in such a case, the trial court must consider what are now commonly
referred to as the "Locklin factors." They are: "(1) [t]he overall public purpose being
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 damage in relation to risk-bearing
capabilities; (5) the extent to which damage of the kind the plaintiff sustained is
generally considered as a normal risk of land ownership; and (6) the degree to which
similar damage is distributed at large over other beneficiaries of the project or is
peculiar 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 those
before the court in Locklin, the public entity will be liable in inverse condemnation 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. In those circumstances, unreasonableness is
determined by balancing the factors set forth in Locklin. *740
3. Counties' Issues [FN5]
a. The Trial Court Properly Balanced the "Locklin Factors."


In Bookout v. State et al— (Judge Tangeman did not cite the Locklin Factors in his August 5, 2008 Decision) Nor did he cite Lockin v. City of Lafayette as Judge Teresa Estrada-Mullaney cited February 2, 2009 in her decision. e

(5) Counties contend that the trial court did not analyze the reasonableness of their
actions according to the requirements of Locklin. The plaintiffs' proposed statement of
decision referred specifically to the six Locklin factors and the trial court's consideration
of each of them. The trial court acknowledged that the balancing analysis in the
proposed statement of decision was correct, but felt that the discussion was not
necessary for a statement of decision and had it stricken. The trial court instead stated,
"The Court has balanced the public need for flood control against the gravity of the harm
caused by the unnecessary damage to the plaintiffs' property, and finds that the County
defendants acted unreasonably. See Belair, [supra,] 47 Cal.3d at [at pp.] 566-67."
FN5 In this section we address the issues raised in briefs filed by Santa Cruz and
MCWRA. Monterey joins the arguments raised in both briefs. To simplify our discussion,
we shall refer in this section to both counties and their related water agencies as
"Counties."
Counties brought the absence of the Locklin factors to the trial court's attention in
connection with the hearing on the motion for new trial. Plaintiffs, therefore, moved to
amend the statement of decision to include the previously stricken analysis. In response,
the court ruled, "In fact, I did make those findings. And the reason for deleting them
from the proposed statement was a disposition for brevity. I think they were there. I did
consider them. I will grant the motion to insert them back into the statement of decision
of the court for clarity." As permitted by Code of Civil Procedure section 662, [FN6] the
trial court amended the statement of decision to include the Locklin analysis. We
reproduce that portion in the margin. [FN7]

In Bookout v. State et al— Judge Teresa Estrada Mullaney in her February 2, 2009 Entry of Judgment Causation Changed Judge Tangemen Skoumas v. City of Orinda quoting Belaire v. Riverside to Skoumbas citing Locklin v. City of Lafayette (1994)


FN6 Code of Civil Procedure section 662 reads in pertinent part: "In ruling on [a new
trial] motion, in a cause tried without a jury, the court may, on such terms as may be
just, change or add to the statement of decision, modify the judgment, in whole or in
part, vacate the judgment, in whole or in part, and grant a new trial on all or part of the
issues ...."
FN7 "The court considered each of the following factors in making its determination that
the Counties acted unreasonably when the public benefit
is balanced against the private damage: (i) The overall public purpose being served by
the improvement project; (ii) the degree to which the plaintiffs' loss is offset by
reciprocal benefits; (iii) the availability to the public entities of feasible alternatives with
lower risks; (iv) the severity of the plaintiffs' damage in relation to risk-bearing
capabilities; (v) the extent to which damage of the kind the plaintiffs sustained is
generally considered as a normal risk of land ownership; and (vi) the degree to which
similar damage is distributed at large over other beneficiaries of the project or is
peculiar only to the plaintiffs. The Court finds that the efforts of the Counties to prevent
foreseeable damage to plaintiffs were not reasonable in light of the potential for damage
posed by the Counties' conduct, the cost to the Counties of reasonable measures to
avoid such damage, and the availability of and the cost to the plaintiffs of means of
protecting their property from damage.

In Bookout v. State et al— (San Luis Obispo County withheld evidence from trial showing why the did not want to fix this problem with the potential impacts of the Baughman property flooding west of State Highway 1. This Baughman Questionnaire was redacted further after trial and the County disclosing this document. The County in their August 22!)

[¶] The Court's determination is supported by
the following: First, the 'purpose' of the improvement project involved-a flood control
project-militates strongly in favor of liability in light of the enormous 'damage potential
of a defective flood control project.' Second, the longstanding negligent operation of a
flood control project, such as is documented here, serves no legitimate purpose, nor
does it promote any 'reciprocal benefit' which
offsets or justifies the damage that was caused by the failure of the Project. Third,
'feasible alternatives' which would have prevented the March 1995 floods were available
to the defendants-i.e., continuous maintenance of the Project, including the type of
maintenance that was in fact performed through the early 1970's. Fourth, the damage
inflicted upon the populace of the Pajaro Valley as a result of the March 1995 flood was
in fact 'enormous.' Finally, these damages were not a 'normal risk' of land ownership or
of the sort that any of the intended 'beneficiaries' of the Project should be expected to
bear. On the contrary, the flood of March 1995 would not have occurred had the
Counties maintained the Project in the manner required by law."
Counties now argue that the trial court came to a final decision without the necessary
balancing and then merely plugged the hole by inserting the *741 previously stricken
language into the statement of decision. We will not second-guess the trial court's
subjective reasoning. The trial court specifically stated that it had considered the factors
and made the findings. The statement of decision that is before us includes the
appropriate analysis and we have no reason to reject it.
Counties also contend that the reasonableness calculus must be made as of the time the
public entity is making the decision to approve the project, and that the trial court
incorrectly focused on conduct that took place after adoption of the federal maintenance
regulations. This contention confuses the purpose of the balancing analysis. The
balancing analysis required by Locklin applies to the public entities' action that results in
the injury. In Belair, supra, 47 Cal.3d 550, it was the design of the levee system that
resulted in the injury so that the reasonableness of the design would have been the
proper consideration. Here, the trial court applied the analysis to the Counties' longstanding
policy of allowing the Project channel to deteriorate. (See fn. 7, ante.) As we
explain in more detail in the following section, it was that long-standing policy that
caused the damage. We find that the trial court appropriately assessed the
reasonableness of that policy according to the factors set forth in Locklin, supra, 7
Cal.4th at page 369. (See Bunch v. Coachella Valley Water Dist. (1997) 15 Cal.4th 432,
454 [63 Cal.Rptr.2d 89, 935 P.2d 796] (Bunch II).)
b. Inadequate Project Maintenance Supports Inverse Condemnation Liability.
(6a) Counties next contend that the trial court incorrectly based liability upon a finding
of negligence, which is not the type of government action to which inverse
condemnation applies. Counties also contend that the Corps' prescribed maintenance
was the only "plan" of maintenance Counties ever adopted and that there is insufficient
evidence to support a contrary finding. We find no merit in either contention. *742
(7) To be subject to liability in inverse condemnation, the governmental action at issue
must relate to the "public use" element of article I, section 19. "Public use" is the
threshold requirement. (Cal. Const., art. I, § 19.) "The destruction or damaging of
property is sufficiently connected with 'public use' as required by the Constitution, if the
injury is a result of dangers inherent in the construction of the public improvement as
distinguished from dangers arising from the negligent operation of the improvement."
(House v. L. A. County Flood Control Dist. (1944) 25 Cal.2d 384, 396 [153 P.2d 950]
(conc. opn. of Traynor, J.).) 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 [289 P.2d 1] (Bauer).)
The necessary finding is that the wrongful act be part of the deliberate design,
construction, or maintenance of the public improvement. "The fundamental justification
for inverse liability is that the government, acting in furtherance of public objectives, is
taking a calculated risk that private property may be damaged." (Yee v. City of Sausalito
(1983) 141 Cal.App.3d 917, 920 [190 Cal.Rptr. 595], disapproved on other grounds in
Bunch II, supra, 15 Cal.4th at pp. 447-451.) That is why simple negligence cannot
support the constitutional claim. For example, in Hayashi v. Alameda County Flood
Control (1959) 167 Cal.App.2d 584 [334 P.2d 1048], the appellate court held that the
plaintiffs had not stated a cause of action for inverse condemnation because, although
the defendant's failure to repair a levee within 10 to 21 days was negligence, it was not
"a deliberate plan with regard to the construction of public works." (Id. at pp. 590-592.)
That is not to say that the later characterization of a public agency's deliberate action as
negligence automatically removes the action from the scope of the constitutional
requirement for just compensation. So long as the entity has made the deliberate
calculated decision to proceed with a course of conduct, in spite of a known risk, just
compensation will be owed. (See Van Alstyne, Inverse Condemnation: Unintended
Physical Damage (1969) 20 Hastings L.J. 431, 489-490 (Van Alstyne).)
The leading case on the issue is Bauer. In Bauer, a drainage ditch ran along the downhill
border of the plaintiffs' property. As originally constructed, any overflow from the ditch
would have run downhill and away from the plaintiffs' property. As time went on, the
downhill side of the ditch was built up higher and higher with dirt and debris so that
when the ditch later overflowed, it flooded the plaintiffs' land. The county argued that
the change in the ditch was a result of its maintenance and negligent maintenance was
not the "public use" to which inverse condemnation liability *743 would attach. The
Supreme Court disagreed, explaining: "The rather obscure line between the concepts of
'construction' and 'maintenance' is disclosed by any attempt to define them in mutually
exclusive terms and to characterize the raising of a bank of an existing ditch as one or
the other. If the 'maintenance' consists of an alteration of the ditch by raising one of the
banks, then in a material sense 'maintenance' becomes a species of 'construction.'

In Bookout v. State et al— (See Video’s presented to the Court showing Caltrans Grading and Shoveling Storm Water Debris into the Oceano Community’s Storm Water Drainage Channel) See OCSD PVC Pipe Place in Drainage Channel since late 80’s)

Had
the bank been raised during the original construction it would have been part of the
over-all project and hence within the rule .... The defendants' argument that damage
from maintenance is beyond the purview of [article I,] section [19] invites an artificial
distinction which would turn simply upon the passage of time between the original
construction and the subsequent alteration and must therefore be rejected." (Bauer,
supra, 45 Cal.2d at p. 285.)
(6b) Other cases have also found that inadequate maintenance can support liability in
inverse condemnation. Two such cases involved damage to property caused by broken
water pipes that the public entities had failed to properly maintain. (McMahan's of Santa
Monica v. City of Santa Monica (1983) 146 Cal.App.3d 683, 696-698 [194 Cal.Rptr. 582]
(McMahan's), disapproved on other grounds, Bunch II, supra, 15 Cal.4th at pp. 447-
451; Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596 [96 Cal.Rptr.2d 897]
(Pacific Bell).) In both McMahan's and Pacific Bell the defendants argued that the city's
negligent maintenance of its water system was not the type of deliberate government
action that could support liability in inverse condemnation. (McMahan's, supra, 146
Cal.App.3d at p. 693; Pacific Bell, supra, 81 Cal.App.4th at p. 607.) In neither case had
the city affirmatively passed a resolution or otherwise enacted a plan that was facially
inadequate. But in both cases the city knew that the maintenance program being applied
to its water system was inadequate and did not take action to remedy the inadequacy.
In Pacific Bell, the city repeatedly denied requests for water rate increases to fund repair
and replacement of the water system. (Pacific Bell, supra, 81 Cal.App.4th at p. 607.) In
McMahan's, the city did not accelerate its program of water main replacement in spite of
a water rate study showing that such a program was necessary to prevent a continued
deterioration of the system. (McMahan's, supra, 146 Cal.App.3d at p. 695.)
The Pacific Bell court found that the deliberateness required for inverse condemnation
liability was satisfied by a finding that the public improvement, as designed, constructed
and maintained, presented an inherent risk of danger to private property and the
inherent risk materialized and caused damage. (Pacific Bell, supra, 81 Cal.App.4th at p.
607; and see House v. L.A. County Flood Control Dist., supra, 25 Cal.2d at p. 396.) The
court pointed out that the damage to private property that resulted from such an
inherent *744 risk was a direct cost of the public improvement. In Pacific Bell, the city
could have incurred the cost in advance by monitoring and replacing the system before a
failure caused damage. When it chose not to do so, article I, section 19 required that the
cost be absorbed by the taxpayers as a whole, and not by the individual landowner.
(Pacific Bell, supra, 81 Cal.App.4th at pp. 607-608, citing Holtz, supra, 3 Cal.3d at pp.
310-311.)
The McMahan's court used the same rationale to reject the defendant's contention that
its conduct could only be characterized as negligence. Relying on Bauer, supra, 45
Cal.2d 276, McMahan's determined that "whether the City's program of water main
installation and replacement is characterized as ' construction' or 'maintenance,' the fact
remains that it was inadequate and contributed to the break due to corrosion of the
[broken] main. The City's knowledge of the limited life of such mains and failure to
adequately guard against such breaks caused by corrosion is as much a 'deliberate' act
as existed in Albers, supra, 62 Cal.2d 250." (McMahan's, supra, 146 Cal.App.3d at p.
696.)
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.
i. The Trial Court Found That Counties Adopted an Unreasonable Plan.
During trial, neither side raised the issue of deliberate action. The heart of plaintiffs'
case was that Counties had failed to maintain the project as required by the Corps,
allowing silt and vegetation to build up and diminish the capacity of the Project. Counties
defended by attempting to show, among other things, that their conduct was reasonable
in light of regulatory and fiscal restrictions. The trial court's statement of decision
referred to the litany of maintenance deficiencies and concluded, "[T]he evidence is
persuasive that the County defendants did not act reasonably with regard to their
maintenance obligation. Moreover the trial record refuted the Counties' arguments that
they acted reasonably in light of regulatory impediments and funding limitations. The
Counties' maintenance duties required that certain necessary steps be taken to
effectively keep the channel clear. If those ' necessary steps' required greater efforts in
the face of funding and regulatory obstructions, then a reasonable course of conduct
required a more aggressive approach to overcoming these claimed impediments."
About three months after the statement of decision was filed, the Third District Court of
Appeal filed *745 Paterno v. State of California (1999) 74 Cal.App.4th 68 [87 Cal.Rptr.2d
754] (Paterno). Paterno, like this case, was an appeal from a judgment for the plaintiff
on an inverse condemnation claim arising from a broken levee. The Paterno court held
that the trial court's statement of decision was deficient because it based liability "almost
entirely on the violation of standards for levee maintenance, in other words, departures
from the lawful plan, rather than on an unreasonable plan." (Id. at p. 90.) The appellate
court reversed and remanded the case for retrial, noting that Paterno would have to
identify upon what plans he relied and then prove that the plan caused his injury. (Id. at
p. 91.)
After judgment was entered in favor of the test plaintiff in this case, Counties filed a new
trial motion. (Code Civ. Proc., § 657.) Relying upon Paterno, they argued that the trial
court's decision was against law because the court had based liability on negligent
maintenance, not on adoption of an unreasonable plan of maintenance. The trial court
denied the new trial motion, but amended the statement of decision to include the
finding: "[T]he maintenance deficiencies which the Court's Statement of Decision
summarized all resulted from plans or policies which defendants adopted and
implemented over a twenty-year period." Thus, the trial court's statement of decision, as
amended, found that Counties had adopted and implemented unreasonable plans or
policies by failing, over a 20-year period, to take a more aggressive approach to
maintenance of the Project.
Paterno does not affect our conclusion. In Paterno, the appellate court determined that
the trial court had adopted the view that unreasonable conduct, as required by Belair,
meant ordinary negligence, and therefore, that the trial court had not made the
necessary finding. (Paterno, supra, 74 Cal.App.4th at pp. 86, 88.) Unlike the trial court
in Paterno, the trial court in this case expressly found that the manner in which the
channel was maintained for over 20 years was a deliberate policy of the local public
agencies responsible for the Project. Such a determination is a finding of the deliberate
government action necessary for inverse condemnation liability.
ii. There Is Substantial Evidence of an Unreasonable Plan of Maintenance.
Counties insist that the only evidence of a "plan" of maintenance was the Corps'
maintenance requirements. (8) In reviewing the sufficiency of the evidence to support
the findings of the trial court, we apply the basic principle of appellate practice and
consider the evidence in the light most favorable to the plaintiffs, giving them the
benefit of every reasonable inference and resolving conflicts in support of the judgment.
(In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 [275 Cal.Rptr. 797, 800 P.2d
1227].) *746
(6c) The record is replete with evidence to support the finding that Counties'
maintenance of the Project was conducted pursuant to Counties' deliberate policies.
Counties were aware of the maintenance program being applied to the Project and knew
that the buildup of vegetation and sand bars diminished the protection the Project was
intended to provide. Area farmers, Watsonville officials, and the highest ranking people
in both Counties' water agencies alerted county officials to the risk of flooding and to
that which needed to be done to remedy the problem. In spite of that knowledge,
Counties did not take any action to correct the situation until 1991 or later. Instead,
Counties allowed Fish and Game regulations and perceived funding limitations to drive
the actual program of maintenance. Thus, Counties' knowing failure to clear the Project
channel, in the face of repeated warnings and complaints was not mere negligent
execution of the Corps' reasonable plan of maintenance. The "plan" was the long-term
failure to mitigate a known danger. That failure persisted for 20 years.
MCWRA argues that it was only Santa Cruz that affirmatively supported the Fish and
Game policies of habitat restoration and, therefore, any unreasonable plan or policy of
maintenance should be attributable to Santa Cruz, alone. We disagree. It is not
necessary to find that Counties expressly endorsed or enacted a contrary policy in order
to find that the actual maintenance of the Project was conducted pursuant to deliberate
governmental action. It is sufficient that Counties were aware of the risk of failing to
adequately clear the channel and chose to tolerate that risk. The reason for the choice is
irrelevant to the determination that the action was deliberate. MCWRA indisputably had
the obligation, knew the risk, and did not act. Moreover, MCWRA made other, deliberate
policy decisions relating to Project maintenance. Among other things, MCWRA's Assistant
General Manager and Chief Engineer testified that he had regularly been successful in
preventing Fish and Game from interfering with his use of mechanized equipment to
maintain other flood control projects in his jurisdiction, and that he chose not to
challenge Fish and Game decisions in connection with the Project because he feared
jeopardizing the department's cooperation with future permit applications.
Counties also argue that the Corps' semiannual evaluations, which, with one exception,
never found Project maintenance to be categorically unacceptable, show that Counties'
actual maintenance program was reasonable. The Corps' evaluations are not dispositive.
Since the Corps' declaration of unacceptability would have cut off Corps assistance in the
event of an emergency, we may infer that such declarations were made only sparingly.
Moreover, it is undisputed that the Corps regularly pointed out the problem of
vegetation growing in the channel, and that the water agency personnel believed that
the maintenance program did not conform to Corps requirements and that it
compromised the Project's capacity. *747
In sum, the record demonstrates that Counties' policy makers made explicit and
deliberate decisions with unfortunate but inevitable results. 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.
c. The Trial Court Did Not Err in Defining "Design Capacity."
(9a) Counties argued at trial that they could not be liable if the storm had generated
more water than the Project had been designed to handle. Counties' evidence was that
the peak flow during the storm was 21,300 c.f.s. and the Project's capacity was only
19,000 c.f.s. Plaintiffs' evidence was that the peak flow was somewhere between 16,000
c.f.s. and 18,500 c.f.s., but in any event, less than 19,000 c.f.s. Plaintiffs also argued
that by considering the freeboard built into the Project's design, the Project's functional
capacity was something more than 19,000 c.f.s. At the close of trial, the court defined
the Project's capacity as "19,000 c.f.s. with 3 feet of freeboard." Counties now argue
that this definition was erroneous and affects both the inverse condemnation and tort
results.
Counties insist that design capacity is a question of law to be determined from the
design documents, and that the trial court was obligated to define capacity as 19,000
c.f.s. within, not with, three feet of freeboard. As we understand the argument, the
Corps' Definite Project Report uses "within" and that means that the capacity was
19,000 c.f.s. and no more. By changing "within" to "with," the finder of fact was
incorrectly allowed to add the freeboard to the design capacity, which in this case would
increase the total capacity to 23,000 c.f.s. [FN8] The definition was appropriate if it was
correct in law and supported by the evidence. (Code Civ. Proc., §§ 607a, 609; and see
LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 875 [148 Cal.Rptr.
355, 582 P.2d 946], and Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 335 [145
Cal.Rptr. 47].) We find that it was.
FN8 Plaintiffs argue that Counties have waived objection to the court's use of the word
"with" by affirmatively acquiescing to its use below. Although we agree that Counties did
not object below to the use of the word "with" versus "within," the record as a whole
makes it quite clear
that Counties consistently urged a definition of design capacity that would exclude
consideration of freeboard. We will, therefore, treat the merits of the issue.
The concept of "design capacity" comes from the Belair case. The appellate court in
Belair had decided that because the plaintiffs' land had been historically subject to
flooding, the levee failure could not be the proximate *748 cause of the damage because
it had not increased that historical risk. (Belair, supra, 47 Cal.3d at p. 558.) The
Supreme Court disagreed. Belair determined that a flood control project serves the
public good by preventing damage that would otherwise be expected to occur in the
normal course of events. The flood control project could be a concurring cause of flood
damage because adjoining landowners rely on the protection it was built to provide.
However, as Belair acknowledged, the flood control project could only be a concurring
cause if the flood was one the Project was designed to accommodate.
Specifically, Belair held: "Thus, in order to establish a causal connection between the
public improvement and the plaintiff's damages, there must be a showing of ' "a
substantial cause-and-effect relationship excluding the probability that other forces
alone produced the injury." [Citations.]' (Souza v. Silver Development Co. [(1985)] 164
Cal.App.3d [165,] 171 [210 Cal.Rptr. 146], fn. omitted.) Where independently
generated forces not induced by the public flood control improvement-such as a
rainstorm-contribute to the injury, proximate cause is established where the public
improvement constitutes a substantial concurring cause of the injury, i.e., where the
injury occurred in substantial part because the improvement failed to function as it was
intended. The public improvement would cease to be a substantial contributing factor,
however, where it could be shown that the damage would have occurred even if the
project had operated perfectly, i.e., where the storm exceeded the project's design
capacity." (Belair, supra, 47 Cal.3d at pp. 559-560.)
A project's capacity, therefore, bears upon the element of causation. This is true
whether we are considering the inverse condemnation claims or the tort causes of
action. Counties understandably focus on the dictum in the latter half of Belair's
discussion quoted above, in which the court posits, by way of example, that if a storm
exceeded the project's "design capacity" the project would no longer be a substantial
factor in causing the damage. By narrowing the focus to the phrase "design capacity,"
Counties have constructed the argument that the relevant level of protection the Project
was designed to provide is the single number linked to the term "design capacity" in the
Corps' Definite Project Report. According to Counties, freeboard does not count.
In our view, Belair did not intend the bright-line rule Counties seek to apply. Such a rule
is inconsistent with traditional concepts of causation, and would not advance the just
compensation requirement of the Constitution. That is especially true on the facts of this
case. As the Belair court stated, the issue is whether there is a " ' "substantial" causeand-
effect relationship *749 [between the public project and the injury] which excludes
the probability that other forces alone produced the injury.' (Van Alstyne, supra, 20
Hastings L.J. at p. 436, italics added.)" (Belair, supra, 47 Cal.3d. at p. 559.) To the
extent that the public project contributes to the injury, then it remains a concurring
cause. Like any other determination of causation, it must be made on the facts of each
case. (Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6 [224 Cal.Rptr. 664, 715 P.2d
624].)
Keeping in mind that the issue is one of causation, we find that it would have been
improper to cut off Counties' liability, as a matter of law, at the Project's design capacity
of 19,000 c.f.s. because there was evidence to show that the Project was able to hold
more than that. The Corps' documents specified that the freeboard could be encroached
to allow the Project to carry 23,000 c.f.s. at the point in the channel where the breach
ultimately occurred. That means that, with 19,000 c.f.s. in the channel, unless
something had occurred to diminish capacity, there would still be room for an additional
4,000 c.f.s. Of significance in this case is the evidence that the extra room the freeboard
was intended to provide was eliminated by Counties' ineffective maintenance. For these
reasons, it was appropriate to permit the finder of fact to decide if the flood exceeded
the protection the Project was intended to provide by permitting a finding that the
freeboard was part of that protection. This is the definition the trial court gave.
Accordingly, there was no error.
d. There Was Substantial Evidence to Support the Findings of Liability.
Counties next argue that there was insufficient evidence to support a finding that flows
exceeded Project capacity. Applying the deferential standard of substantial evidence
review, we find no merit to the argument. (In re Marriage of Arceneaux, supra, 51
Cal.3d at p. 1133.)
The trial court found that if properly maintained the Project would have "safely conveyed
well over 21,000 c.f.s. without overtopping." The jury was not asked to make a finding
of capacity. The jury found only that peak flows did not exceed the design capacity of
the Project. Even if we assume the jury chose 19,000 c.f.s. as the relevant capacity,
there was sufficient evidence to support a finding that the flood did not exceed that.
Plaintiffs' expert, Dr. Robert Curry, is a geologist with a specialty in geomorphology. He
estimated that the range of likely flows at the site of the Project failure was 16,000 c.f.s.
to 18,500 c.f.s., most likely around 17,500 c.f.s. Counties argue that Dr. Curry's
scientific techniques were not proven reliable or generally accepted by others in his field,
and his opinions should not have been *750 admitted. (10) Counties did not make a
record of their objection below and, therefore, have not preserved the issue for appeal.
(11)(See fn. 9.) (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn.
1 [151 Cal.Rptr. 837, 588 P.2d 1261]; and see 9 Witkin, Cal. Procedure (4th ed. 1997)
Appeal, § 394, pp. 444-445.) [FN9] (9b) Dr. Curry's testimony provides substantial
evidence to support a finding that the peak flows did not exceed 19,000 c.f.s.
FN9 Having reviewed the evidence in detail, we find that the objection, had it been
recorded, would have properly been overruled. Evidence of scientific techniques that
have not proven reliable and generally accepted by others in the field is not admissible
as evidence. (People v. Kelly (1976) 17 Cal.3d 24 [130 Cal.Rptr. 144, 549 P.2d 1240].)
The Kelly rule does not apply to the personal opinions of an expert. (People v. McDonald
(1984) 37 Cal.3d 351, 372-373 [208 Cal.Rptr. 236, 690 P.2d 709, 46 A.L.R.4th 1011];
Wilson v. Phillips (1999) 73 Cal.App.4th 250, 254- 256 [86 Cal.Rptr.2d 204].) Counties'
challenge to Dr. Curry's testimony is that he "theorized" and "hypothesized" about the
factors that he believed affected the level of the flood. Counties' objection relates only
to the credibility of his opinion, and thus was not subject to exclusion under the Kelly
rule.
e. The Parties Are Expected to Draft the Statement of Decision.
Counties finally challenge the trial court's statement of decision on the ground it reflects
plaintiffs' reasoning, analysis and decision and not that of the trial court. Counties
acknowledge there is no authority for their challenge, but argue that in this case the
statement of decision was so plainly a rehashing of plaintiffs' closing argument that it
simply cannot reflect the trial court's decision. According to Counties, it is hard to
believe that the trial judge agreed so wholeheartedly with the other side.
The California Rules of Court provide that the tentative decision is not binding on the
court and that the court may instruct a party to prepare a proposed statement of
decision. (Cal. Rules of Court, rule 232(a) & (c).) The rules provide ample opportunity
for all parties to make proposals as to the content of the statement of decision or to
raise objections to a proposed statement. (Cal. Rules of Court, rule 232(b) & (d).) Those
procedures were followed here, and we can find no basis in the record or in law to
warrant further comment on the issue.
4. State's Issues
a. State's Liability for Inverse Condemnation Does Not Require a Showing of
Unreasonableness.
(12a) The trial court's statement of decision refers to State's liability in a single
paragraph: "The State of California, Department of Transportation, acted unreasonably
in its design and construction of Highway 1 where it *751 crosses the Pajaro River flood
plain. [State] failed to follow its own manual's design criteria for that section of highway.
This failure resulted in a dangerous condition of public property. The raised highway
embankment functioned as a dam that caused some properties to suffer flood damage
and others to be damaged more severely than they would have if the highway design
had allowed proper drainage." State contends that the trial court did not use the proper
measure of reasonableness in finding State liable, and that State's actions were
reasonable in any event. Plaintiffs argue, among other things, that the rule of
reasonableness does not apply to State. According to plaintiffs, State is strictly liable and
the trial court's application of a reasonableness analysis was unnecessary. We agree
with plaintiffs.
The rule of reasonableness was developed in a series of cases beginning with Belair. The
general rule is that a public entity is liable for inverse condemnation regardless of the
reasonableness of its conduct. (Albers, supra, 62 Cal.2d at pp. 263-264.) Belair modified
the general rule when it decided that a rule of reasonableness, rather than the extremes
of strict liability or immunity, was appropriate in cases involving flood control projects.
(Belair, supra, 47 Cal.3d at p. 565.) Locklin applied Belair's rule of reasonableness
where the defendants were alleged to have drained surface water into a natural
watercourse, increasing the volume and velocity of the watercourse, and causing erosion
of plaintiffs' downstream property. (Locklin, supra, 7 Cal.4th at p. 337.) Under the
"natural watercourse" rule, a riparian landowner had a privilege to drain surface water
into a natural watercourse, regardless of the effect of that drainage on downstream
landowners. (Id. at pp. 346-347.) Like Belair, Locklin declined to impose strict liability,
and held: "Because a public agency, like any riparian property owner, engages in a
privileged activity when it drains surface water into a natural watercourse or makes
alterations to the watercourse, article I, section 19 of the California Constitution
mandates compensation only if the agency exceeds the privilege by acting unreasonably
with regard to other riparian owners." (Id. at p. 367.)
Both Belair and Locklin applied the reasonableness rule to conduct that was at one time
privileged under traditional water law principles. Predictably, the plaintiffs in the next
case argued that conduct that had not been so privileged was subject to the general rule
of strict liability. (Bunch II, supra, 15 Cal.4th 432.) Bunch II, like Belair, involved the
failure of a flood control project. However, in Bunch II the injury was caused by the
defendants' having diverted and rechanneled a natural watercourse. Diversion of a
watercourse was not subject to a common law privilege like the common enemy doctrine
or the natural watercourse rule. Bunch II confirmed that resolution of flood control cases
involved a balancing of the public interest in encouraging flood control projects with the
potential private harm they *752 could cause. Bunch II held that the public agency would
not be strictly liable for damage resulting from a failed flood control project, whether or
not the offending conduct would have been privileged under traditional water law
doctrine. Instead, a rule of reasonableness was to apply. (Id. at p. 451.)
Although these three cases suggest a trend toward incorporating reasonableness into
the inverse condemnation analysis, that trend does not extend to State's conduct in this
case because of the public policy considerations to which the reasonableness
requirement is tethered. The 1969 article by Professor Van Alstyne provides some
insight. (Van Alstyne, supra, 20 Hastings L.J. 431.) Van Alstyne noted that the state of
inverse condemnation law at the time was very unpredictable due to the courts'
application of a variety of conflicting legal principles. Van Alstyne encouraged the courts
to abandon reliance upon private law principles and to apply principles of public policy to
all inverse condemnation claims arising from unintended physical damage to private
property. According to Van Alstyne, public policy does not necessarily require a
reasonableness calculus in all contexts. For example, in cases of environmental
pollution, a rule of strict liability might provide incentive for the development of
antipollution programs. (Id. at p. 503.) On the other hand, in what Van Alstyne termed
"water damage" cases, a rule that balanced the conflicting concerns of public benefit and
private harm would better serve the public in the long run. (Id. at p. 502.)
Our Supreme Court adopted the balancing analysis suggested by Van Alstyne in the
Belair, Bunch II, and Locklin cases. In Locklin, the offending conduct (discharge of
surface water into a natural watercourse) would have been privileged under traditional
water law principles. The corresponding burden of that privilege fell on the downstream
landowners who had to take steps to protect their land from such upstream discharges
or suffer the consequences. (Locklin, supra, 7 Cal.4th at pp. 351-352.) Therefore, since
the watercourse naturally subjected the downstream property to flooding and erosion, it
would have been unfair to apply a strict liability analysis to public entity landowners
upstream. The decisive constitutional consideration of ensuring equitable allocation of
the cost of the public undertaking was best advanced in such a case by requiring the
downstream owner to show that the public agency had exceeded its privilege by acting
unreasonably. (Id. at p. 367.)
Policy considerations also favored application of a reasonableness analysis in Belair and
Bunch II, which were both flood control cases. In Belair and Bunch II, the public
improvement had been erected to protect the land that was ultimately injured when the
project failed. The project's purpose, to protect private property from the flooding that it
could otherwise expect to *753 suffer periodically, was an important policy reason to
apply the balancing analysis. Without requiring the plaintiff to make a showing of
unreasonableness, the public agency that built or operated the project would become
the guarantor of the land it had undertaken to protect.
An appellate opinion decided after Belair, Bunch II, and Locklin illustrates a situation
where public policy favored strict liability rather than reasonableness. (Akins v. State of
California (1998) 61 Cal.App.4th 1 [71 Cal.Rptr.2d 314].) In Akins the defendants had
intentionally diverted floodwater onto the plaintiffs' lands for the purpose of protecting
other property from flooding. There was no evidence that the project was erected to
protect the plaintiffs' property or that the plaintiffs' property had historically been
subject to flooding. Since the public improvement involved flood control, Belair and
Bunch II arguably mandated application of a reasonableness analysis. However, the
appellate court found that the reasonableness standard did not apply, reasoning that
regardless of the importance of flood control, "[u]sing private property not historically
subject to flooding as a retention basin to provide flood protection to other property
exacts from those owners whose properties are flooded a contribution in excess of their
proper share to the public undertaking. We see no reason to put such property owners
to the task of proving the governmental entities acted unreasonably in order for the
owners to recover in inverse condemnation." (Akins, at p. 29.)
The policy reasons for applying a rule of reasonableness in Belair, Bunch II, and Locklin
do not apply in this case. The conduct of which plaintiffs complain is that State caused
Highway 1 to obstruct the path of the floodwater. Such conduct was not privileged under
traditional water law precepts. (Los Angeles C. Assn. v. Los Angeles (1894) 103 Cal.
461, 467-468 [37 P. 375]; Conniff v. San Francisco (1885) 67 Cal. 45 [7 P. 41].)
Therefore, State does not enjoy a conditional privilege as it would under the facts of
Locklin, and plaintiffs' property would not have been subject to a corresponding burden.
In fact, the reverse is true. It is plaintiffs, as the upstream owners, who likely would
have had a privilege in this case. And State, as the downstream owner, was bound not
to obstruct the flow of water from the plaintiffs' upstream land. (Locklin, supra, 7 Cal.4th
at p. 350; and see Smith v. City of Los Angeles (1944) 66 Cal.App.2d 562, 572 [153
P.2d 69].) Therefore, the consideration that controlled the result in Locklin (fair
apportionment of the loss) is not present here because plaintiffs would not have been
expected to take measures to protect their land from a downstream obstruction like the
Highway 1 embankment.
The policy reasons for applying reasonableness in Belair and Bunch II are not present
here, either. Highway 1 was not a flood control project and was *754 not built to protect
the plaintiffs' land. The damming effect of the highway created a risk to which those
properties would not have been subject if the highway had not been built. The public
benefit of the highway extends well beyond the landowners in the Pajaro Valley. While
the same may be said of a flood control project, such a project directly benefits the
owners of the land in the floodplain, and only indirectly benefits the public as whole.
Highway 1, on the other hand, benefits the traveling public as a whole. The owners of
the adjacent lands derive no greater benefit from the highway than any other member
of the public.
"[T]he underlying purpose of our constitutional provision in inverse-as well as ordinarycondemnation
is 'to distribute throughout the community the loss inflicted upon the
individual ....' " (Holtz, supra, 3 Cal.3d at p. 303.) State, in furtherance of the larger
public purpose (transportation) has caused injury to a discrete group of private
landowners. Those landowners received no more benefit from State's project than did
any other user of the State highway system. Plaintiffs ought not to be required to prove
unreasonableness in order to recover just compensation for their damage. We hold,
therefore, that Belair's rule of reasonableness does not apply to State in this case. In
light of our holding, the trial court was not required to undertake the reasonableness
analysis required by Locklin. The court's conclusion that State's conduct was
unreasonable was unnecessary to its determination that State is liable in inverse
condemnation, but does not affect its correctness.
b. State Had a Duty to Avoid Obstructing the Floodplain.

In Bookout v. State et al— (Judge Tangeman in his August 5, 2008 decision cited Belair’s alone after making a misstate in citing Skoumbas v. City of Orinda instead citing Skombas v. City of Orinda.)

The jury found State liable for nuisance and for maintaining a dangerous condition of
public property.)

(Civ. Code, § 3479; Gov. Code, § 835.) State argues that it cannot be
liable for these torts because it does not have a duty to protect plaintiffs' property from
the failure of a flood control project over which it had no control. State assumes that
plaintiffs' claim is premised upon the theory that State should have designed its
drainage anticipating that the Project would fail. State misses the point. Plaintiffs do not
allege that State is responsible for the failure of the Project or the resulting flood.
Plaintiffs allege only that State is responsible for that portion of the damage that can be
attributed to the highway's obstruction of the floodplain. Whether the flood occurred
because the Project failed to function as intended, or because the rainstorm exceeded
the Project's capacity, plaintiffs' claim against State would be the same. As we interpret
plaintiffs' position, State had a duty to avoid obstructing escaping floodwater, regardless
of the cause of the flood.

In Bookout v. State et al—
(Judge Tangeman saw the evidence of Caltrans Grading and Shoveling Storm Water Debris into this drainage system.
Judge Tangeman saw the evidence of their historic maintenance of this drainage system.
Judge Tangeman saw the evidence of Caltrans Raising State Highway 1.
Judge Tangeman Exhibit # 1790 showing Caltrans portions of a fix to their drainage liability.
Judge Tangeman saw Exhibit # 1776 Shows Caltrans use of retention pond on Railroad establishing an easement over five years
Judge Tangeman saw the 2002 Baughman Questionnaire withheld by the County of San Luis Obispo)

(13) "[L]egal duties are not discoverable facts of nature, but merely conclusory
expressions that, in cases of a particular type, liability should be *755 imposed for
damage done." (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425,
434 [131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166].) In California, the general rule
is that all persons have a duty to use ordinary care to prevent others from being injured
as the result of their conduct. (Rowland v. Christian (1968) 69 Cal.2d 108, 112 [70
Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].) Duty is usually determined based upon a
number of considerations. The foreseeability of a particular kind of harm is one of the
most crucial of those. (See Dillon v. Legg (1968) 68 Cal.2d 728, 739 [69 Cal.Rptr. 72,
441 P.2d 912, 29 A.L.R.3d 1316]; Gov. Code, § 835.)
The question of whether a duty exists is one of law. The court's task in determining duty
is to evaluate generally whether the conduct at issue is sufficiently likely to result in the
kind of harm experienced that liability may appropriately be imposed. (Ballard v. Uribe,
supra, 41 Cal.3d at p. 573, fn. 6.) (12b) Under ordinary rules applicable to riparian
landowners, both upper and lower riparian landowners have a duty to avoid altering the
natural system of drainage in any way that would increase the burden on the other.
(Locklin, supra, 7 Cal.4th at pp. 337, 354-356; Keys v. Romley (1966) 64 Cal.2d 396,
409 [50 Cal.Rptr. 273, 412 P.2d 529].) Traditionally, a lower landowner that obstructs a
natural watercourse is liable for damages that result from the obstruction. (Mitchell v.
City of Santa Barbara (1941) 48 Cal.App.2d 568, 571 [120 P.2d 131].) The rule applies
even if the damaging flow in the obstructed watercourse is seasonal floodwater. (Ibid.)
This common law allocation of duty is appropriate here.
The harm of which plaintiffs complain is that the highway obstruction caused the
floodwater to rise higher and stand on the land longer than it would have done if
unobstructed. This harm was unquestionably foreseeable. State's "1989/90 Training
Course Manual" points out: "A primary cause of flooding in highway and bridge
construction is the blocking of a normal drainage flow pattern. Construction of fills,
drainage structures and appurtenant structures such as retaining walls all have the
potential for blocking the normal flow of drainage water and thus causing flooding. The
blocked flow does not necessarily have to be a watercourse; blockage of an existing
flood plain may result in flooding of previously untouched areas. [¶] In either case,
watercourse or flood plain, blockage will result in liability for any damages arising from
consequent flooding."
In fact, the harm that State's project ultimately caused was actually foreseen before the
highway bypass was ever built. State designed the drainage culverts around 1960. The
1960 design documents presumed that peak flows would result in shallow flooding "for
some distance outside the [right of way]." According to State's engineers, these peak
flows were *756 presumed to consist only of rainwater runoff from the surrounding area,
not floodwater. Thus, even in the absence of a flood, State's design presumed that some
water would back up behind the highway during the heaviest rains.
State's "Design Planning Manual" required that its highway drainage structures be able
to accommodate a 100-year storm. In 1963, the Corps reported that a 100-year storm
was expected to generate flows within the Project channel of 43,500 c.f.s., a
significantly greater volume than it had previously estimated. State concedes that it was
aware of the Corps' 1963 estimate of the size of a 100-year storm, and that it knew
there was no chance the Project, as it then existed, could contain that volume. Thus,
State was aware before it began building the highway bypass in the late 1960's that in
the event of a 100-year storm, flooding was virtually certain to occur.
State argues that it had no duty to consider the possibility of a flood because in its
correspondence with State engineers the Corps told State that it should assume a
Project expansion was going forward. This assurance, however, did not have any bearing
on the drainage design or whether that design should consider the risk of flooding. The
acknowledged purpose of the Corps' assurance was to assist State's engineers in
designing the bridge. In light of the information it received from the Corps, State
designed its bridge over the river so that the Corps could make improvements under the
bridge without the need to revise the bridge structure. Those improvements were, at
best, years away. (And, so far as we can ascertain from the record, no such
improvements were ever made.)
It is undisputed, therefore, that when State built the highway bypass in the late 1960's
it knew that the Project would not contain a 100-year storm and that no enlargement of
the Project had been approved or commenced at that point. A 100-year storm was just
as likely to occur in 1970 as it was at any later time. Having built an embankment
across the historic floodplain, State also must have known that its embankment would
block the flow of floodwater unless it designed the drainage to accommodate a flood.
State cannot avoid liability for the 1995 flood because the Project failed rather than
because the storm overwhelmed it. State was expected to design its drainage for a 100-
year storm. Since a flood was almost certain to occur in the event of a 100-year storm,
State, as a downstream riparian landowner, had a duty to design the highway bypass to
avoid obstructing the geologic floodplain. Therefore, it does not matter that the storm
that generated the flood in this case was of a lesser magnitude and should have been
contained by the Project. State had a duty to anticipate the consequences of a 100-year
storm and design accordingly. *757
c. Government Code Section 830.6 Is Not a Defense.
(14a) At the close of all the evidence State moved for a directed verdict on the basis of
Government Code section 830.6, design immunity. The trial court denied the motion and
the jury ultimately found State liable for a dangerous condition of public property and
nuisance. State contends the court erred in denying its directed verdict motion. We
disagree.
(15) A public entity is liable for negligently creating a dangerous condition of public
property or for failing to cure a dangerous condition of which it has notice. (Gov. Code, §
835, subd. (a).) However, the entity is immune from such liability if the injury was
caused by a public improvement that was constructed pursuant to a plan or design
approved in advance by the entity if "there is any substantial evidence upon the basis of
which (a) a reasonable public employee could have adopted the plan or design ... or (b)
a reasonable legislative body or other body or employee could have approved the plan
or design." (Gov. Code, § 830.6.) "The rationale behind design immunity is to prevent a
jury from reweighing the same factors considered by the governmental entity which
approved the design." (Bane v. State of California (1989) 208 Cal.App.3d 860, 866 [256
Cal.Rptr. 468].) A public entity claiming design immunity must plead and prove three
essential elements: " '(1) [a] causal relationship between the plan and the accident; (2)
discretionary approval of the plan prior to construction; [and] (3) substantial evidence
supporting the reasonableness of the design.' [Citation.]" (Higgins v. State of California
(1997) 54 Cal.App.4th 177, 185 [62 Cal.Rptr.2d 459].)
The elements of causation and approval are not contested. The focus of State's
challenge is the third element of the design immunity defense, substantial evidence of
the reasonableness of the culvert design. Government Code section 830.6 makes the
resolution of this element a matter for the court, not the jury. (Cornette v. Department
of Transportation (2001) 26 Cal.4th 63, 66 [109 Cal.Rptr.2d 1, 26 P.3d 332].) The task
for the trial court is to apply the deferential substantial evidence standard to determine
whether any reasonable State official could have approved the challenged design.
(Morfin v. State of California (1993) 12 Cal.App.4th 812, 815 [15 Cal.Rptr.2d 861].) If
the record contains the requisite substantial evidence, the immunity applies, even if the
plaintiff has presented evidence that the design was defective. (Higgins v. State of
California, supra, 54 Cal.App.4th at p. 185.) In order to be considered substantial, the
evidence must be of solid value, which reasonably inspires confidence. (People v.
Bassett (1968) 69 Cal.2d 122, 139 [70 Cal.Rptr. 193, 443 P.2d 777]; Grenier v. City of
Irwindale (1997) 57 Cal.App.4th 931, 940 [67 Cal.Rptr.2d 454].) (14b)

In Bookout v. State et al— (Judge Tangeman saw the Substantial evidence of Caltrans, County and OCSD Drainage Changes of grading, shoveling and dredging debris into the railroads storm water drainage channel. He saw the evidence of Caltrans and OCSD historically removing debris until 2002. This was solid evidence for any Trial Court!)

Keeping that
standard in mind, we review the evidence to determine whether *758 there is a basis
upon which a reasonable State official could have approved the culvert design.
State installed two 48-inch culverts through the embankment on the southern side of
the bridge it built over the Pajaro River. There is no dispute that the culverts were not
designed to accommodate floodwater. They were designed to accommodate only the
rainwater runoff from the adjacent 700 acres. The span beneath the bridge itself
provided plenty of clearance for highwater flows down the river channel. However, if the
water escaped the channel, it would follow the contour of the floodplain toward the
embankment at the southern end of the bridge. The floodwater would have to pass
through whatever drainage was installed in the new embankment in order to reach the
sea. Plaintiffs point out that since State knew before it built the Highway 1 bypass that
the Project could not accommodate more than about 26,000 c.f.s., and that a 100-year
storm would generate flows well above that, flooding was foreseeable and the drainage
design should have taken it into account. [FN10]

In Bookout v. State et al— (Caltrans new as far back; after Caltrans and the County installed sewer lines under State highway 1 that their drainage changes to the State highway and this drainage channel were not proper.)

FN10 Plaintiffs also claim that the culverts' gradient flowed upriver rather than down, the
opposite of the way they were designed. Arguably, this defect could also defeat the
design immunity defense. (Cameron v. State of California (1972) 7 Cal.3d 318, 326 [102
Cal.Rptr. 305, 497 P.2d 777].) In light of our conclusion that there is insufficient
evidence to support the reasonableness of the design, we need not reach this issue.
State's expert, Steve Price, testified that the culverts conformed to the requirements of
State's Design Planning Manual and the design itself was "reasonable." He stated that it
was not in conformance with the best engineering practices to design the drainage for
Project failure and that State did not evaluate the Corps' projects at the time the
drainage in this case was installed. Plaintiff's expert, Dr. Curry, had testified that the
actual Pajaro River watershed consisted of 1,100 square miles. Price testified, however,
that it was appropriate to consider only the 700 acres in calculating runoff because
"[t]here are other drainage systems and facilities that are taking care of that water."
State's engineer, Lance Gorman, testified that a reasonable drainage design would
accommodate flooding only if the river had not incorporated man-made flood control
improvements. According to both Price and Gorman, because there was an existing flood
control project, the highway drainage design did not have to consider floodwater.
Gorman testified that State worked only within its own area and that it would expect the
Corps to provide for flooding, noting that State had expected the Corps to improve the
Project to accommodate a 100-year storm. Another reason State never considered
flooding, according to Gorman, was that it had never been asked to do so. *759
The chronology of the State's project is significant. The Corps' flood control project was
built in 1949 and, according to Gorman, up until at least 1958 it was reasonable to
presume it would hold a 100-year flood. The Highway 1 drainage was designed in 1959
and revised in 1960. In June 1963, the Corps published its "Interim Report," showing
that it expected a 100-year storm would generate 43,500 c.f.s. This volume greatly
exceeded the Project's capacity. Nevertheless, in September 1963, State engineers
approved the 1960 drainage design without reconsidering it in light of the Corps' Interim
Report. Mr. Gorman conceded that by 1964, given the Corps' reevaluation of a 100-year
storm, it would have been "questionable" to continue to assume the Project would hold
such a flood. Thus, according to State's own engineer it "probably would have been
better" to design for the Corps' new analysis.
The purpose of the design immunity statute is to avoid having the finders of fact
"reweighing the same factors considered by the governmental entity which approved the
design." (Bane v. State of California, supra, 208 Cal.App.3d at p. 866.) Since State's
engineers never took flooding into consideration, it is questionable whether the
immunity applies at all. Presuming that it does, we find that State has not offered
substantial evidence of reasonableness.
Although State offered evidence that its original design was reasonable, we are troubled
by the conclusory nature of that evidence. State's engineers testified that the design
was reasonable, but the only foundation offered for their conclusion was the
presumption that someone or something else would take care of flooding. Such evidence
lacks the solid value necessary to constitute substantial evidence.


In Bookout v. State et al— (Judge Tangeman blames POVE 100% for the maintenance of the debris that could only come from Caltrans property and their drainage changes as far back as the mid 60’s with the County of San Luis Obispo!)

Moreover, State
effectively concedes that under the circumstances that existed at the time the design
was approved in 1963, it was no longer reasonable to rely on the Project to contain a
100-year flood. The unreasonableness of the design is further demonstrated by the
design documents themselves, which in 1960 presumed that peak flows would cause
some shallow flooding. Logic tells us that once it was determined that a 100-year storm
was certain to overtop the Project, more extensive flooding would occur. Under these
circumstances, we find that State has not offered any substantial evidence upon the
basis of which a reasonable public employee could have approved a design that did not
take flooding into account.
The trial court's ruling on State's motion for a directed verdict suggests that the court
incorrectly intended to allow the jury to determine the reasonableness of the design. It
is clear from the record, however, that the jury was not asked to make that
determination. (16) A ruling or decision, itself *760 correct in law, will not be disturbed
on appeal merely because it was given for a wrong reason. (D'Amico v. Board of Medical
Examiners (1974) 11 Cal.3d 1, 18-19 [112 Cal.Rptr. 786, 520 P.2d 10].) (14c) Because
our independent examination of the record leads us to conclude that State had not
offered substantial evidence of the reasonableness of the drainage design, the trial court
did not err in denying State's motion for directed verdict.
d. Failure of the Project Was Not a Superseding Cause.
State argues that the breach of the levee was an intervening force that was so
extraordinary that it operates as a superseding cause of plaintiffs' injury, cutting off its
own liability on all claims. (17) Under traditional negligence analysis, an intervening
force is one that actively operates to produce harm after the defendant's negligent act or
omission has been committed. (Rest.2d Torts, § 441, subd. (1), p. 465.) A defendant's
conduct is superseded as a legal cause of an injury if, among other things, the
intervening force is highly unusual or extraordinary, not reasonably likely to happen and,
therefore, not foreseeable. (Rest.2d Torts, § 442, subds. (b) & (c), p. 467; 6 Witkin,
Summary of Cal. Law (9th ed. 1988) Torts, § 975, p. 366; Akins v. County of Sonoma
(1967) 67 Cal.2d 185, 199 [60 Cal.Rptr. 499, 430 P.2d 57].) Similar considerations may
apply in the context of inverse condemnation. (Belair, supra, 47 Cal.3d at pp. 559-560.)
The defendant has the burden to prove the affirmative defense of superseding cause,
that is, that the intervening event is so highly unusual or extraordinary that it was
unforeseeable.

In Bookout v. State et al— (Judge Tangeman chose to cite this August 5, 2008 P. 12 when he cited skoumas instead of Skoumbas v. City of Orinda. The defendants did not prove this or offer evidence of this!)

(Maupin v. Widling (1987) 192 Cal.App.3d 568, 578 [237 Cal.Rptr. 521].)
The question is usually one for the trier of fact. (Ballard v. Uribe, supra, 41 Cal.3d at p.
572, fn. 6.) However, since the facts upon which State bases its claim are materially
undisputed, we apply our independent review. (Ghirardo v. Antonioli, supra, 8 Cal.4th at
p. 799.)
(14d) State argues that the chain of causation between State's project and the harm
that plaintiffs sustained is broken by the extraordinary volume of floodwater flowing
from the breach of the levee. Other than to note that the 1995 event was the first time
its culverts had been overwhelmed, State does not explain in what way the flooding was
not foreseeable, and has not carried its burden on this issue. On the other hand, we find
ample evidence that flooding was within the scope of human foresight. The Highway 1
bypass was built across a floodplain. State knew at the time it built the culverts that the
Project channel could not hold a 100-year storm so that in the event of a 100-year
storm, flooding was almost certain to occur. And a 100-year storm was, indisputably,
foreseeable. Thus, the flooding, whether caused by the failure of the levee or by the size
of the storm, was not so extraordinary an event that State should be relieved of its
liability. *761
5. Monterey Liability
a. Monterey's Liability Is Not Derivative.
(18) Monterey attacks the judgment against it on the ground that the trial court
disregarded the separateness of Monterey and MCWRA and incorrectly determined that
Monterey could be derivatively liable for MCWRA's inadequate maintenance of the
Project. We reject this argument because the record is clear that the judgment against
Monterey was based on Monterey's direct liability.
The jury received no instruction on vicarious liability, nor was the verdict form drafted to
accommodate a vicarious liability theory. The special verdict identified each of the
defendants separately, and the jury apportioned damages separately, assigning 30
percent to MCWRA and 23 percent to Monterey. The trial court expressly found that
"Monterey County, while a separate legal entity from [MCWRA], concurrently exercised
dominion and control over the Project," and concluded that Monterey and MCWRA were
"jointly responsible." Therefore, both finders of fact determined that Monterey's liability
was joint or concurrent, but not derivative.
b. Monterey Substantially Participated in the Project.
Monterey contends that since it did not do anything about the maintenance of the
Project channel, and because, it claims, it had no authority to do anything, it cannot be
liable for inverse condemnation. We find that Monterey had the power and the duty to
act and that its failure to do so, in the face of a known risk, is sufficient to support
liability under article I, section 19.

In Bookout v. State et al— (Judge Tangeman Erred in his decision that there was no showing that the County’s responsibility for designing or maintaining the drainage channel or drainage facilities immediately downstream from Plaintiff’s property.

Judge Tangeman erred when he stated “County, State , union or OCSD could not have abated the nuisance by undertaking any maintenance.)

A public entity is a proper defendant in an action for inverse condemnation if the entity
substantially participated in the planning, approval, construction, or operation of a public
project or improvement that proximately caused injury to private property. (Wildensten
v. East Bay Regional Park Dist. (1991) 231 Cal.App.3d 976, 979-980 [283 Cal.Rptr.
13].) So long as the plaintiffs can show substantial participation, it is immaterial "which
sovereign holds title or has the responsibility for operation of the project." (Stoney Creek
Orchards v. State of California (1970) 12 Cal.App.3d 903, 907 [91 Cal.Rptr. 139].)
In the majority of cases that apply the substantial participation test, the public entity
has defended an inverse condemnation claim on the grounds that the improvement was
private, not public. There is no dispute here that *762 the Project was a public project.
Thus, the holding in these cases is not directly applicable. However, the rationale is
instructive. One such case is Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345 [28
Cal.Rptr. 357] (Frustuck). In that case the city approved a subdivision and drainage
plans for private property upstream from the plaintiffs' property. The subdivision
increased runoff that ultimately harmed the plaintiff's property. The appellate court
agreed that the harm had been caused by the drainage system's upstream diversion of
water and that the city, in approving the plans for the subdivision, had substantially
participated in that diversion. The court explained, "The liability of the City is not
necessarily predicated upon the doing by it of the actual physical act of diversion. The
basis of liability is its failure, in the exercise of its governmental power, to appreciate the
probability that the drainage system from [the private subdivision] to the Frustuck
property, functioning as deliberately conceived, and as altered and maintained by the
diversion of waters from their normal channels, would result in some damage to private
property." (Id. at p. 362; accord, Sheffet v. County of Los Angeles (1970) 3 Cal.App.3d
720, 734-735 [84 Cal.Rptr. 11].)
In cases where there is no dispute concerning the public character of an improvement,
substantial participation does not necessarily mean actively participating in the project,
as Monterey contends, but may include the situation where the public entity has
deliberately chosen to do nothing. For example, a public entity is liable in inverse
condemnation for damage resulting from broken water pipes when the entity responsible
for the pipes has deliberately failed to maintain them. (McMahan's, supra, 146
Cal.App.3d 683; Pacific Bell, supra, 81 Cal.App.4th 596.) Of course, the entity must
have the ability to control the aspect of the public improvement at issue in order to be
charged with deliberate conduct. In tort cases, it has been held, "in identifying the
defendant with whom control resides, location of the power to correct the dangerous
condition is an aid." (Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 832 [87
Cal.Rptr. 173].) The ability to remedy the risk also tends to support a contention that
the entity is responsible for it. "Where the public entity's relationship to the dangerous
property is not clear, aid may be sought by inquiring whether the particular defendant
had control, in the sense of power to prevent, remedy or guard against the dangerous
condition ...." (Id. at pp. 833-834; accord, Fuller v. State of California (1975) 51
Cal.App.3d 926, 946-948 [125 Cal.Rptr. 586].)
The rule we draw from these cases is that a public entity is a proper defendant in a claim
for inverse condemnation if it has the power to control or direct the aspect of the public
improvement that is alleged to have caused the injury. The basis for liability in such a
case is that in the exercise of its governmental power the entity either failed to
appreciate the probability that *763 the project would result in some damage to private
property, or that it took the calculated risk that damage would result. (See Frustuck,
supra, 212 Cal.App.2d at p. 362.)
Returning to the instant matter, although Monterey contends that it had no obligation or
any power to control the Project maintenance, the contention does not withstand
scrutiny. In December 1947, Monterey entered into an indemnity agreement with Santa
Cruz, San Benito and Santa Clara Counties. Just two months before Monterey executed
that agreement, MCWRA's predecessor, the Monterey County Flood Control and Water
Conservation District, had given its assurance to the federal government that it, along
with the other local interests, would maintain and operate the Project as the Corps
required. This assurance is the "resolution marked Exhibit 'A' " in the following excerpt
from the indemnity agreement that Monterey executed: "each County assumes to itself
the sole obligation and responsibility occasioned by the adoption of the resolution
marked Exhibit 'A,' for that portion of the project which is to be constructed within it's
[sic] boundaries and being bound to each other County to hold them and each of them
harmless and free from any liability or obligation arising by reason of the adoption of the
resolution marked Exhibit 'A' as to that portion of said project within it's [sic] own
boundaries; meaning that each County will take care of the assurances given and
obligations incurred by reason of the resolution marked Exhibit 'A' insofar as they relate
to that part of the project being constructed within it's [sic] boundaries." [FN11] (Italics
added.) The plain language of this agreement supports the conclusion that Monterey
assumed responsibility for the Project's operation and maintenance.
FN11 Monterey argues in its opening brief that its execution of the indemnity agreement
was probably a mistake, and that the water district should have executed it instead.
Although Monterey insisted throughout the proceedings below that it was an improper
defendant, it never argued that it might have executed the agreement by mistake.
There is no direct evidence in the record to support this argument, and we decline to
consider it for the first time on appeal.
In practice, Monterey did exercise control over the Project by virtue of its financial
control over MCWRA. Monterey and MCWRA and its predecessor district have always
shared a common board of supervisors and common boundaries. [FN12] County
employees are considered ex officio employees of MCWRA and are required to perform
the same duties for MCWRA that they perform for Monterey. (Stats. 1990, ch. 1159, §
16, p. 4841, West's Ann. Wat.-Appen., supra, § 52-16; Stats. 1947, ch. 699, §§ 2, 7, 8,
pp. 1739, 1744 [repealed], West's Ann. Wat.-Appen., former §§ 52-2, 52-7, 52-8. *764
Although Monterey and MCWRA are separate entities, the fact that they had governing
boards, employees, and boundaries in common is relevant to the analysis. "[C]ommon
governing boards do not invariably indicate county control, but certainly that fact is
relevant to the inquiry." (Rider v. County of San Diego (1991) 1 Cal.4th 1, 12 [2
Cal.Rptr.2d 490, 820 P.2d 1000] (Rider I).) Here, we find it significant because of the
financial connection between the two entities.
FN12 Although MCWRA is also governed by an appointed board of directors, that board
did not come into being until the 1990 Water Resources Act. (Stats. 1991, ch. 1130, §§
5, 10, pp. 5440, 5442, West's Ann. Wat.-Appen. (1999 ed.) §§ 52-48, 52-53.)
Monterey financial statements reported MCWRA financial activity as if MCWRA was a part
of the county. The statements expressly state that they do not report the financial
activity of those agencies over which Monterey cannot impose its will or with which
Monterey does not share a financial benefit, burden relationship. By implication, the
inclusion of MCWRA on Monterey's financial statements means that Monterey itself
considers that it is able to impose its will on MCWRA, and that there does exist a
financial benefit, burden relationship between Monterey and MCWRA.
Further evidence of Monterey's control is the fact that MCWRA never had a revenue
source, independent of the county's financial resources, that was sufficient to fulfill its
promise to operate and maintain the Project. At least since 1974 MCWRA had entirely
neglected the Project channel in favor of maintaining the levees because there was not
enough money to do both. The main reason funding was so limited was that MCWRA's
funding for the Project came from "Zone 1," the geographical area directly served by the
Project. Zone 1 consists largely of agricultural land and the little town of Pajaro. Since
the geographical area is relatively small and the town of Pajaro is economically
disadvantaged, the revenue-generating potential of Zone 1 is and always has been very
limited. Therefore, the only way MCWRA could have afforded to undertake the needed
maintenance of the Project was to depend upon assistance from the county.
There is no dispute that Monterey's board of supervisors was aware of the maintenance
needs of the Project, and the risk of flooding that it posed. From time to time, the board
allocated money from its general fund for other programs and projects undertaken by
MCWRA. Although Supervisor Del Piero, who represented the district that included Zone
1, attempted several times during the 1970's and 1980's to have Monterey's board
make allocations to augment MCWRA's Zone 1 funding, he was, for the most part,
unsuccessful.
Monterey cites Galli v. State of California (1979) 98 Cal.App.3d 662 [159 Cal.Rptr. 721]
(Galli) in support of its contention that an entity cannot substantially participate if it has
done nothing. In Galli, the local levee maintenance district was liable in tort and inverse
condemnation for flood *765 damage resulting from the failure of a levee. The plaintiffs
argued that State should also be liable because it had substantially participated in the
levee maintenance. The plaintiffs based their argument primarily upon the assertion that
the levee was part of a comprehensive water resource development system under the
general control of State and State knew that the levee had maintenance problems. (Id.
at p. 688.) The appellate court rejected the plaintiffs' argument on the ground, among
others, that the levee in question was a nonproject levee. A nonproject levee was not
required to be maintained to State or federal standards and was not inspected by State,
and, consequently, was not under the general control of State as far as its maintenance
was concerned. For that reason, State's knowledge of the maintenance problems was
not enough to establish substantial participation. (Id. at pp. 681, 688.) Galli is
distinguishable because, as we have explained, Monterey's actual knowledge of the
maintenance problems was coupled with its actual ability to control Project maintenance.
[FN13]
FN13 Monterey also cites Rider I, supra, 1 Cal.4th 1, Vanoni v. County of Sonoma
(1974) 40 Cal.App.3d 743 [115 Cal.Rptr. 485], and Rider v. County of San Diego (1992)
11 Cal.App.4th 1410 [14 Cal.Rptr.2d 885]. These cases involved certain constitutional
taxing and debt limitation requirements and were decided on facts vastly different than
those before us. We find them inapposite.
Monterey argues that it never had any obligation to maintain the Project or any
obligation to fund MCWRA to do so. The Supreme Court rejected a similar argument long
ago in Shea v. City of San Bernardino (1936) 7 Cal.2d 688 [62 P.2d 365]. In that case
the city argued that it was powerless to fix a dangerous condition that existed in a
railroad crossing because the Railroad Commission had exclusive jurisdiction over its
right of way. The Supreme Court held "the improvement of streets within the boundaries
of a city is an affair in which the city is vitally interested. The governing board and
officers of the municipality in dealing with such an affair may not complacently declare
that they were powerless over a long period of years to take any steps to remedy a
defective and dangerous condition that existed in one of the principal streets of the city."
(Id. at p. 693.) The court's rationale in that individual personal injury matter applies
with even greater force where the risk threatens an injury such as that which occurred
here.
The constitutional basis for all takings jurisprudence supports a finding of liability in
these circumstances. That is, the owner of private property ought not to contribute more
than his or her proper share to the public undertaking. The purpose of article I, section
19 is to distribute throughout the community the loss that would otherwise fall upon the
individual. (Holtz, supra, 3 Cal.3d at p. 303.) If Monterey had chosen to fund
maintenance efforts to the degree that Mr. Madruga and Supervisor Del Piero
determined was necessary, the *766 flood would not have occurred. In failing to expend
funds on the Project, Monterey benefited the ultimate recipients of those funds and took
the risk that plaintiffs would be harmed as a result. Therefore, it is proper now to require
the county to bear its share of the loss these plaintiffs incurred.

In Bookout v. State et al— (As seen above San Luis Obispo County in their 2002-2004 Oceano Drainage Study presented to the trial court choosing not to fund drainage improvements in Oceano shows their further liability and knowledge of the prior drainage changes!)

D. Disposition
The judgment is affirmed.
Elia, J., and Wunderlich, J., concurred.
A petition for a rehearing was denied July 23, 2002, and the opinion was modified to read
as printed above. Appellants' petition for review by the Supreme Court was denied
September 18, 2002. George, C. J., and Baxter, J., did not participate therein. *767
Cal.App.6.Dist.,2002.
JAMES ARREOLA et al., Plaintiffs and Respondents, v. COUNTY OF MONTEREY et al.,
Defendants and Appellants. [And five other cases. ]
END OF DOCUMENT
Copr. (C) Bancroft-Whitney and West Group



Skoumbas v. City of Orinda (2008) , Cal.App.4th
[No. A117960. First Dist., Div. Three. Jul. 31, 2008.]
ALEXANDRA SKOUMBAS et al., Plaintiffs and Appellants, v. CITY OF ORINDA, Defendant and Respondent.
(Superior Court of Contra Costa County, No. C0500552, Barbara Zuniga, Judge.)
(Opinion by Siggins, J., with McGuiness, P.J., and Pollak, J., concurring.)
COUNSEL
Law Offices of Nick T. Reckas, Nick T. Reckas, for Appellants.
Clapp, Moroney, Bellagamba & Vucinich, James G. Lucier, Amici Curiae on behalf of Appellants.
Lepper & Harrington, Gary M. Lepper, Paul V. Samoni, for Respondent.
OPINION
SIGGINS, J.-
Konstantine and Alexandra Skoumbas appeal the dismissal of their suit seeking damages for inverse condemnation, nuisance, and trespass, following a grant of summary judgment in favor of the City of Orinda (the City). The trial court concluded the City could not be held liable for erosion caused by water discharged from a storm drain because there was no evidence the entire drainage system was a public improvement owned by the City or its predecessor in interest. We conclude that 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. Accordingly, we conclude the existence of triable issues of material fact precluded the grant of summary judgment, and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
The Skoumbas property consists of several undeveloped parcels of land on an Orinda hillside in an area known as the Oak Springs subdivision that was created in the 1920's. Their property is to the west and downhill from a subdivision, Tract 2742, developed in the 1960's. Tract 2742 includes Candlestick Road, a publicly dedicated street that ends in a cul-de-sac. Surface water from the surrounding area of Tract 2742 flows onto Candlestick Road, and is collected in a catch basin that channels the water into {Slip Opn. Page 2} an underground metal pipe. The metal pipe runs under Tract 2742, and continues downhill into the Oak Springs subdivision, where it discharges surface water near the uphill border of the Skoumbas property. The surface water discharge has allegedly caused substantial erosion and damaged the Skoumbas property. The City admits it owns Candlestick Road, the catch basin, and the first 40 feet of drainpipe, but contends it is not responsible for any flow of water below the first 40 feet of pipe because the City says the rest of the pipe is privately owned.
The drainage system for Tract 2742 was originally constructed by the subdivision's developer. fn. 1 As it was originally constructed, the Candlestick Road storm drain was an 18-inch diameter drainage pipe laid in a 10-foot drainage easement on Lots 18 and 19 that extended downhill from the end of Candlestick Road and ended on Lot 132 of the Oak Springs subdivision. fn. 2 The county did not accept the streets in the Oak Springs subdivision for public use, and no easement was identified on the subdivision map within the boundaries of Lot 132. When the subdivision map for Tract 2742 was approved in 1960, the county board of supervisors "did not accept on behalf of the public any of the streets, roads, avenues or easements shown thereon as dedicated to public use."
The storm drainage from Candlestick Road was the subject of extended discussion between the developer and the county around that time. A county flood control official advised the developer: "[T]he storm drain at the westerly end of Candlestick Road has {Slip Opn. Page 3} been improperly located and does not extend to Patricia Lane . . . . [¶] It is recommended that the existing storm drain be extended to Patricia Road, that a culvert with a[n] 'L' headwall be placed beneath Patricia Road to direct the storm flow into the natural channel to the southwest, and sacked concrete outlet protection be constructed. [¶] This work shall be accomplished under a 'change order' submitted by the developer to the Public Works Department accompanied by a drawing showing [relevant details]. [¶] It is urgent that the foregoing described work be completed at the earliest date." fn. 3
The developer's engineers then sent the flood control district a plan for "revisions to drainage at the end of Candlestick Road." The drawing showed an extension to the existing pipe that included a new 24-inch pipe that crossed under Patricia Lane. fn. 4
In 1964, work was done to reconstruct and repair slide damage that affected Candlestick Road. As part of that work, Candlestick Road was shortened and repositioned. In its new configuration, the road ended some 40 feet away from the top end of the drain line that was originally installed by the developer of Tract 2742. A new catch basin was constructed at the end of the street and 40 feet of pipe was laid to connect the catch basin to the original drain line. The new section of drain was placed in a portion of lot 18 of Tract 2742 that was a county-owned easement. In March 1966, Candlestick Road, as relocated and reconstituted, was dedicated and accepted as a public road. fn. 5 {Slip Opn. Page 4}
It appears that erosion caused by the discharge from the storm drain off Candlestick Road was the subject of discussion between the county and an area property owner in 1964. An owner of property that adjoined Lot 132 exchanged correspondence with the public works department in October 1964 where he said the "culvert and flume [from Candlestick Road] are now carrying the entire run-off of the hill. Over two previous rainy seasons this flume has discharged water to the extent that a gulley approximately twenty feet deep has been cut out of the soil." But it does not appear that the drain was repaired or replaced at that time. In 1965, the same property owner wrote to the public works department to say that while earth movement caused by grading activities on Tract 2742 was repaired, "the cavern or ravine caused by [the] drainage pipe still exists." The public works department responded to the property owner in September 1965 that it would not take any further action on the matter. The parties now disagree over whether someone altered the lowest portion of the drain pipe at some later date. fn. 6
The Skoumbases sued the City and the uphill owners whose property is traversed by the pipe running from Candlestick Road, seeking recovery for damages caused by the water that discharged onto their property. fn. 7 The complaint alleged nuisance and trespass claims against all defendants, and inverse condemnation against the City.
The City moved for summary judgment, asserting it had no responsibility for the discharge of the storm water because the lower portion of the storm drain was privately constructed and privately owned. Thus, the storm drain was not a public improvement. The Skoumbases opposed, arguing the City could be held liable because the water that damaged their property originated in a public improvement, and there were triable issues {Slip Opn. Page 5} of fact as to the City's implied acceptance of the entire pipeline. fn. 8 The trial court granted summary judgment for the City because there was no evidence the City expressly or impliedly accepted the lower segments of the drainage pipe as a public improvement. fn. 9 The Skoumbases timely appealed. fn. 10
DISCUSSIONA. Standard of Review
We review the trial court's ruling on summary judgment de novo. (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 100; Schieding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 69.) We view the evidence in a light favorable to plaintiffs as the losing party, construe their evidentiary submission liberally and strictly scrutinize the defendant's own showing. (Andrews, supra, at p. 100.) "Summary judgment is a drastic remedy to be used sparingly, and any doubts about the propriety of summary judgment must be resolved in favor of the opposing party." (Mateel Environmental Justice Foundation v. Edmund A. Gray Co. (2003) 115 Cal.App.4th 8, 17.)
" 'A motion for summary judgment must be granted if all of the papers submitted show "there is no triable issue as to any material fact and . . . the moving party is entitled {Slip Opn. Page 6} to a judgment as a matter of law. In determining whether the papers show . . . there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, . . . and all inferences reasonably deducible from the evidence . . . ." ([Code Civ. Proc.,] § 437c, subd. (c).) A defendant has met its burden of showing a cause of action has no merit if it "has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show . . . a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff . . . may not rely upon the mere allegations or denials of its pleadings to show . . . a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists. . . ." ' " (Andrews v. Foster Wheeler LLC, supra, 138 Cal.App.4th at p. 101.)
Our de novo review of the record leads us to conclude that the summary judgment in favor of the City must be reversed. We conclude the City did not establish that it had a complete defense to liability for damages to private property caused by water collected in a public catch basin off a public street and channeled into a section of public drain pipe. As a matter of law, the City's ownership and control of a portion of the drainage system makes the City potentially liable for damage substantially caused by the City's unreasonable diversion of water through the City-owned portions of the system.
B. Liability for a Public Agency's Diversion of Surface Water
"Water diffused over the surface of land, or contained in depressions therein, and resulting from rain, snow, or which rises to the surface in springs, is known as 'surface water.' It is thus distinguishable from water flowing in a fixed channel, so as to constitute a watercourse, or water collected in an identifiable body, such as a river or lake. The extraordinary overflow of rivers and streams is known as 'flood water.' " (Keys v. Romley (1966) 64 Cal.2d 396, 400.) The plaintiffs are suing to recover for damage to their property resulting from the discharge of surface water from Tract 2742 that has been diverted into the culvert and storm drain at the end of Candlestick Road. They assert claims for nuisance, trespass and inverse condemnation. {Slip Opn. Page 7}
Article I, section 19 of the California Constitution permits private property to be "taken or damaged for a public use . . . only when just compensation . . . has first been paid to, or into court for, the owner." When incidental damage to private property is caused by governmental activity, but the government has not reimbursed the property owner, a suit in "inverse condemnation" will lie to recover monetary damages for "special injury." (Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 362.) This constitutional right to recover for inverse condemnation was originally thought to provide a broader right for individuals to recover against the government than they would have against a private party, as it was unnecessary to prove negligence or commission of a tort by the government. (Ibid.) But in cases of damage caused by flowing water, the prevailing theory was that if a private party would have the right to inflict damage on the plaintiff's property, the government could assert the same immunity. (Ibid., Archer v. City of Los Angeles (1941) 19 Cal.2d 19, 23.)
This unique immunity recognized in inverse condemnation became known as the "Archer" exception and "involved the circumstances, peculiar to water law, in which a landowner had a right to inflict damage upon the property of others for the purpose of protecting his or her own property. Such circumstances included the erection of flood control measures (the common enemy doctrine) and the discharge of surface water into a natural watercourse (the natural watercourse rule). Under private water law analysis, these rules immunized the landowner from liability for resulting damage to downstream property." (Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 738.) But in recent cases, the Archer exception has been curtailed and the murky rules pertaining to liability imposed upon government entities for damage caused by flowing water have been refined. (See Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550; Locklin v. City of Lafayette, supra, 7 Cal.4th 327; Bunch v. Coachella Valley Water Dist. (1997) 15 Cal.4th 432.)
Under modern authorities, the liability of public agencies for diversion of surface waters into a natural watercourse is relatively clear. "[T]he public agency is liable only if its conduct posed an unreasonable risk of harm to the plaintiffs, and that unreasonable {Slip Opn. Page 8} conduct is a substantial cause of the damage to plaintiff's property. The rule of strict liability generally followed in inverse condemnation [citation] is not applicable in this context." (Locklin v. City of Lafayette, supra, 7 Cal.4th at p. 367.) In assessing a public agency's conduct under the reasonableness standard prescribed in Locklin, courts may consider (1) whether the damage to their property, if reasonably foreseeable, would entitle the plaintiffs to compensation; (2) whether it is likely that the public agency would refrain from diverting the water in light of a remote possibility of unseen and unforeseeable direct damage to the property; (3) whether the plaintiffs suffered direct physical damage to their property as the proximate result of the diversion as deliberately planned and carried out; (4) whether the cost of the damage can be better absorbed, and with less hardship, by the taxpayers rather than the plaintiff owners of the damaged property; and (5) whether if uncompensated the plaintiffs would contribute more than their fair or proper share to the public undertaking of the project. (Id. at p. 368.) But in all cases, these considerations are limited to situations where the public agency's unreasonable conduct is a substantial cause of the damage to the plaintiffs' property. fn. 11 (Ibid.)
In Bunch v. Coachella Valley Water Dist., supra, 15 Cal.4th 432, our Supreme Court adopted the rule of reasonableness articulated in Locklin to assess claims of inverse condemnation in cases where a public entity has diverted water in a flood control system that fails in a heavy rain and causes damage to property that has historically been subject to flooding. "Bunch reasoned that this reasonableness approach furthers the policies underlying the common enemy cases: it does not discourage beneficial flood control projects by making the government an insurer against flood damage, and yet compensates injured property owners who otherwise would be required to contribute a disproportionate share of the cost of the project." (Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596, 613.) In Bunch, our Supreme Court concluded that: "The {Slip Opn. Page 9} Belair/Locklin reasonableness test applies to cases involving public flood control works that cause physical damage to private property. . . courts should use these factors in cases where a public entity's flood control measures, designed to protect against potentially dangerous periodic flooding, cause property damage." (Bunch v. Coachella Valley Water Dist., supra, at p. 454.)
Finally, a landowner's tort liability for the diversion of surface water is decided under a rule of reasonableness similar to that articulated in Locklin. When a landowner diverts surface waters in an unnatural manner and damages a lower property, the upper landowner is liable in tort to the extent he or she failed to take reasonable care in the use of the upper property. (Keys v. Romley, supra, "64 Cal.2d at p. 409.) This rule of liability is referred to as the modified "civil law rule." (Ibid.; Sheffet v. County of Los Angeles (1970) 3 Cal.App.3d 720, 727-728.) Simply stated, the modified civil law rule provides that: "1. If the upper owner is reasonable and the lower owner unreasonable, the upper owner wins; 2. If the upper owner is unreasonable and the lower owner reasonable, the lower owner wins; and 3. If both the upper and lower owner are reasonable, the lower owner wins also." (Burrows v. State of California (1968) 260 Cal.App.2d 29, 32-33.)
C. Review of the Summary Judgment Granted in this Case
The City does not dispute that it owns three drainage related mechanisms relevant to this case. They are Candlestick Road, the catch-basin at the end of Candlestick Road, and the approximately 40-foot length of drain pipe laid in 1964 when Candlestick Road was reconfigured and relocated. Notwithstanding these facts, the City argues that it cannot be held liable to the plaintiffs because it does not own the lower stretches of drain pipe, and thus should not be held responsible for "water which passes through public-owned segments . . . wherever and however it may flow in private segments or on private property thereafter." We disagree. The City's asserted lack of ownership or involvement in development of the lower portion of the drainage system off Candlestick Road is not a complete defense to its possible liability to the plaintiffs.
As the City claims, in order for it to be held liable in inverse condemnation, damage to the plaintiffs' property must occur as a result of a public improvement, public {Slip Opn. Page 10} work, or public use. (Ullery v. County of Contra Costa (1988) 202 Cal.App.3d 562, 568-569.) This is true as far as it goes, but it does not go far enough.
The plaintiffs are suing over damage to their property caused by the outfall of storm water diverted from Candlestick Road and emanating from a public improvement; to wit: Candlestick Road, the catch-basin and the initial section of pipe. Under the balancing test that applies to claims of government liability for property damage caused by drainage of surface water to control flooding, the relevant question is whether the City's ownership, operation or control of the improvements to Candlestick Road, the catch-basin and the 40-foot pipe were unreasonable or posed an unreasonable risk of harm to the plaintiffs, and whether the City's unreasonable conduct was "a substantial cause of the damage to plaintiff's property." (Locklin v. City of Lafayette, supra, 7 Cal.4th at p. 367.)
It is immaterial that the City may not own the entire section of drain emanating from Candlestick Road and ending somewhere on the lower part of Lot 132 of the Oak Springs subdivision. The City may be liable in inverse condemnation if the City owned improvements have a " ' "substantial" cause-and-effect relationship' " to the plaintiffs' damage, provided that no other forces alone produced the injury. (Belair v. Riverside County Flood Control Dist., supra, 47 Cal.3d at p. 559.)
The authorities principally relied upon by the City do not persuade us otherwise. In Ullery v. County of Contra Costa, supra, 202 Cal.App.3d 562, the county was not liable for inverse condemnation because it owned no part of a creek bed in a natural watercourse that traversed private property. The county had expressly rejected the developer's offer of dedication of a drainage easement within the natural watercourse and never improved, maintained, or repaired the creek bed. (Id. at pp. 567-570.) Approval of a subdivision map, standing alone, was insufficient to create liability. (Id. at pp. 570-571.) The Ullery court specifically noted that the county "did not approve or actively construct a drainage system which diverted waters onto appellants' property." (Id. at p. 571.) In this case, the county, as the City's predecessor in interest, accepted Candlestick {Slip Opn. Page 11} Road, the drainage culvert, and the first segment of the storm drain as public property. That portion of the drainage system is a public work.
The City also relies on what it views as "the remarkably congruent precedent of DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329." We consider DiMartino unpersuasive in this context. In DiMartino, plaintiffs sought damages for diminution in the value of their home due to the existence beneath it of a deteriorated metal drainpipe. fn. 12 (Id. at p. 332.) The trial court found the city liable for inverse condemnation, and awarded damages for the cost of relocating the pipe into an existing drainage easement. (Id. at p. 335.) The appellate court reversed because there was no evidence to support the trial court's findings that the city or county substantially participated in the planning, construction, or maintenance of the drainpipe, exercised dominion or control over the pipeline, or expressly or impliedly accepted dedication of the pipe. (Id. at p. 344.)
Neither the public entities nor the plaintiffs in DiMartino were aware of the location of the pipe until it was discovered "during design stages of a planned remodel." (DiMartino v. City of Orinda, supra, 80 Cal.App.4th at p. 333.) There the court concluded: "The purpose of the pipe appears to have been entirely private: to permit construction of private residences on [plaintiffs' lot and the adjoining lot], which otherwise would have been unbuildable due to waters flowing in a natural watercourse." (Id. at p. 344.) Here, the City concedes "[i]t is true that the drainage 'system' designed for drainage of the subdivision has been used by all residents and the City since its inception," and there is no evidence the property through which the pipeline passed was "otherwise . . . unbuildable due to waters flowing in a natural watercourse." fn. 13 (DiMartino, supra, at p. 344.) DiMartino is factually distinguishable. {Slip Opn. Page 12}
Unlike DiMartino, this case does not involve the failure, replacement and relocation of a secret subterranean drain. It involves potential liability for the diversion of surface water. Where a public improvement is unreasonably a substantial cause of the plaintiff's damage, a public agency may be liable for its role in diverting surface water in order to protect urban areas from flooding. (See Bunch v. Coachella Valley Water Dist., supra, 15 Cal.4th 432; Locklin v. City of Lafayette, supra, 7 Cal.4th 327; Belair v. Riverside County Flood Control Dist., supra, 47 Cal.3d 550; Arreola v. County of Monterey, supra, 99 Cal.App.4th 722.) In such cases, "[t]he reasonableness of the public agency's conduct must be determined on the facts of each individual case, taking into consideration the public benefit and the private damages in each instance." (Belair, supra, at p. 566.)
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}
"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.)
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.
McGuiness, P.J., and Pollak, J., concurred.


Filed 4/10/06
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
CALIFORNIA STATE AUTOMOBILE
ASSOCIATION INTER-INSURANCE
BUREAU,
Plaintiff and Appellant,
v.
CITY OF PALO ALTO,
Defendant and Respondent.
H027980
(Santa Clara County
Super. Ct. No. CV813502)
In this case, California State Automobile Association Inter-Insurance Bureau
(CSAA) appeals a judgment following a court trial in which the court found respondent
City of Palo Alto (City) was not liable for property damage resulting from a sewage
backup into a private home under the theory of inverse condemnation.
STATEMENT OF THE FACTS AND CASE
CSAA is the homeowners’ insurance carrier for David and Suzanne McKenna for
their residence located on Maybell Way in the City of Palo Alto. The McKennas suffered
property damage as a result of two separate raw sewage backups into their home that
occurred over a two month period in 2001. CSAA paid the McKennas’ claims, and
subsequently brought an action as subrogee against the City under theories of inverse
condemnation, trespass, nuisance and premises liability.
The sewer main servicing the McKennas’ property was constructed in
approximately 1959 when the subdivision containing their home was developed, and
consists of clay pipe segments six inches in diameter on the inside and joined in a bell
2
and spigot design sealed with concrete packed into the bell ends of the pipe segments.
The main begins from a manhole in the center of the cul-de-sac turnaround of Maybell
Way and continues at another manhole located at the intersection of Maybell Way and
Maybell Avenue. The slope of the main is .455 percent. The McKennas’ sewage is
carried away from their home via a lateral sewer pipe, four inches in diameter, that
connects to the main sewer pipe in the center of the street.
On November 6, 2001, the McKennas’ sewer line backed up, causing raw sewage
to enter their home. As a result, the home was damaged extensively, and the McKennas
temporarily moved out until repairs could be completed. On the day of the backup,
CSAA retained Express Plumbing, which did a video inspection and found that the
backup was caused by tree root intrusion in the sewer lateral located on the McKennas’
property. The existing lateral was porous clay material that allowed the tree root
intrusion. CSAA authorized Express Plumbing to replace the McKennas’ portion of the
lateral, which extends from the house to the sidewalk, as well as the City’s portion of the
lateral that extends from the sidewalk to the main sewer line under the street. The
replacement of the City’s portion was completed on November 20, 2001, after Express
Plumbing received the necessary permits. The replaced lateral was constructed of
nonporous polyethylene pipe, and consisted of a single piece of pipe with no joints or
connections except at the ends.
On December 4, 2001, after the repairs were complete, the McKennas moved back
into their home. Almost immediately thereafter, the home was again flooded with raw
sewage. CSAA hired Spectrum Leak Locators (Spectrum) to investigate the cause of the
backup. Spectrum conducted a video inspection and found the replaced lateral pipe to be
clear of debris and in “perfect” condition. Spectrum found that a day after the
3
December 4th sewage backup, there were tree roots intruding into the City’s “wye”1 joint
connecting the McKennas’ lateral to the City’s main. The video inspection also revealed
that there was toilet paper and effluent on the tree roots in the main, and that the main
was half filled with standing water, with tree roots penetrating at every eight foot joint.
Following payment of the McKennas’ claims for property damage resulting from
the second sewage backup in December 2001, CSAA filed suit as subrogee of the
McKennas in an action against the City under theories of inverse condemnation, trespass,
nuisance and negligence. CSAA did not request reimbursement for the payments it made
in regard to the November 2001 backup; rather, it claimed the City was liable only for the
second backup that occurred in December 2001. Both sides waived jury, and the matter
was tried before the court.
CSAA provided evidence of three potential causes of the sewage backup that
occurred in December 2001. The three possible causes were (1) the existence of tree
roots invading the porous clay pipe of the sewer main as observed by the video inspection
conducted by Spectrum; (2) the .455 percent slope of the main that CSAA’s plumbing
expert testified was insufficient to effectively carry sewage away from homes; and (3) the
existence of standing water filling one half of the main, as observed by video inspection
one day after the December 2001 backup.
The City presented evidence that its maintenance program for the sewer main was
to hydroflush it every two years. This process involves the use of a hose with high
pressure water to scour the inside of the pipe, removing all invading tree roots. The
sewer main on Maybell Way was hydroflushed on June 28, 2000, one and a half years
prior to the November 2001 backup, and had a regular schedule of being hydroflushed
every two years going back to 1983.
1 From the record we understand this word “wye” to describe the shape of a
plumbing fitting that looks like the letter “Y.”
4
The evidence presented at trial demonstrated that the only sewage overflows that
occurred on Maybell Way were to the McKenna home in November and December 2001;
there was no evidence of any prior or subsequent sewer overflows into residences on
Maybell Way.
At the conclusion of the court trial, the court ruled in favor of the City. In its
statement of decision, the court found that although the sewage backup was caused by a
blockage in the City’s sewer main, CSAA failed to prove “how or why any such blockage
in the City’s main occurred.”
CSAA filed a timely notice of appeal.
DISCUSSION
CSAA asserts on appeal that the trial court erred in requiring it to prove fault in its
inverse condemnation action against the City for causing the damage to the McKennas’ home. In this case, both parties agree that all three standards of appellate review apply. CSAA’s claim that the trial court misapplied the California Constitution and required it to prove negligence in its inverse condemnation action is a question of law, and will be reviewed de novo. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.) With regard to
CSAA’s remaining claims that there was insufficient evidence presented at trial to
support the trial court’s judgment in favor of the City, and that the trial court erred in disregarding its evidence regarding the causation of the blockage in the City’s main, we will apply the substantial evidence and abuse of discretion standards of review
respectively. (See Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053; Blank v.
Kirwan (1985) 39 Cal.3d 311, 331.)
Under the California Constitution, article I, section 19, property may not be taken
or damaged for public use without just compensation to the owner. This provision is the authority for both proceedings initiated by the public entity to “take[]” property—otherwise known as “eminent domain”—and those initiated by the property owner for 5 just compensation as a result of a taking—otherwise known as “inverse condemnation.”
(San Diego Metropoloitan Transit Development Bd. v. Handlery Hotel, Inc.
73 Cal.App.4th 517, 529.) A property owner may recover just compensation from a public entity for “any actual physical injury to real property proximately caused by [a public] improvement as deliberately designed and constructed . . . whether foreseeable or not.” (Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 263-264 (Albers); Holtz v. Superior Court (1970)
3 Cal.3d 296, 303.) Inverse condemnation lies where damages are caused by the
deliberate design or construction of the public work; but the cause of action is
distinguished from, and cannot be predicated on, general tort liability or a claim of
negligence in the maintenance of a public improvement. (Hayashi v. Alameda County Flood Control (1959) 167 Cal.App.2d 584, 591-592; Yox v. City of Whittier (1986)
182 Cal.App.3d 347, 352 (Yox); see, e.g. Customer Co. v. City of Sacramento (1995) 10 Cal.4th 368, 382 [a public entity cannot be subject to “ ‘general tort liability under theory of eminent domain’ ”].) But, damage caused by the public improvement as deliberately conceived, altered, or maintained may be recovered. (Barham v. Southern
Cal. Edison Co. (1999) 74 Cal.App.4th 744, 754.)
To be compensable, the taking must be for a public use. (Cal. Const., art. 1, § 19;
Yox, supra, 182 Cal.App.3d at p. 352.) Indeed, the policy basis for the payment of just compensation is a consideration of “ ‘whether the owner of the damaged property if uncompensated would contribute more than his proper share to the public undertaking.’ ” (Albers, supra, 62 Cal.2d at p. 262.) For purposes of inverse condemnation, “public use” is that which “concerns the whole community or promotes the general interest in its relation to any legitimate object of government.” (Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345, 358.)
Here, there is no dispute as to three of the elements of the inverse condemnation:
(1) the McKennas owned the real property that was damaged by the sewage backup; 6 (2) the Mckennas’ property was taken or damaged; and (3) the City’s sanitary sewer drain system was a public project. The issue in this case is as to the forth element of proximate causation. At the heart of the dispute here is the requirement as set forth in Albers that the property damage must be “proximately caused by [a public] improvement as deliberately designed and constructed . . . whether foreseeable or not.” (Albers, supra, 62 Cal.2d at pp. 263-264. The City argues at length that simply because a blockage occurred in the main does not in itself establish liability under a theory of inverse condemnation. Rather, CSAA must prove that “the public improvement which, as designed, constructed and
maintained presents an inherent risk of damage to private property, and the inherent risks materialize to cause damage.” (Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596.) While the City focuses primarily on the language of Albers, and its requirement that liability under a theory of inverse condemnation will attach only if damage is caused by the public work as “deliberately designed and constructed,” Albers, supra, 62 Cal.2d at pages 263-264, CSAA cites the case of Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550 (Belair), which was decided by our Supreme Court subsequent to Albers, and serves to further define and clarify the element of proximate causation. In Belair, the court noted, “After our decision in Albers, Professor Arvo Van Alstyne authored a seminal article on inverse condemnation liability in which he observed that
Albers’s proximate cause requirement ‘involves a troublesome conceptual premise.’
(Van Alstyne, Inverse Condemnation: Unintended Physical Damage (1969) 20 Hastings
L.J. 431, 435-438.)” Our decision in Albers, supra, 62 Cal.2d 250, contained the seeds of confusion through its combination of ‘proximate cause’ terminology with the elimination of foreseeability as an element of inverse condemnation. Noting this paradox, Professor Van Alstyne suggested that the true measure of proximate cause should be stated in terms 7 of a ‘ “substantial” cause-and-effect relationship [which] exclude[es] the probability that other forces alone produced the injury.’ ” (Id. at pp. 559-560.)
In further defining the element of proximate cause taking into consideration
Professor Van Alstyne’s suggestions, the Belair court noted that “several Court of Appeal decisions [have] held that inverse condemnation liability may be established where the public improvement constitutes a substantial cause of the damage, albeit only one of several concurrent causes.” (Belair, supra, 47 Cal.3d at p. 559.) The Belair court cited a number of Court of Appeal cases as examples, and specifically discussed Ingram v. City of Redondo Beach (1975) 45 Cal.App.3d 628, 633-634 (Ingram). In Ingram the plaintiffs sued the defendant city for damages incurred when heavy rains caused the earthen wall of a drainage sump to collapse, allowing water to flood the plaintiffs’ homes. (Id. at
pp. 630-631.) The trial court granted judgment for the city, finding that “no damages to plaintiff occurred as a proximate result of any public improvement of defendant . . . .” (Id. at p. 630.) Relying on the “substantial cause” theory as suggested by Professor Van Alstyne, and endorsed by our Supreme Court, the Court of Appeal reversed, stating: “[t]here is no controversy over the fact that the wall of the sump gave way, releasing a flood onto plaintiffs’ properties. This clearly could be a substantial factor in causing the claimed damages . . . .” (Ingram, supra, 45 Cal.App.3d at p. 633, italics added.) After Belair, the element of proximate causation for inverse condemnation is established if the plaintiff can prove “ ‘ “a substantial cause-and-effect relationship excluding the probability that other forces alone produced the injury.” ’ ” (Belair, supra, 47 Cal.3d at p. 559, citations and quotation marks omitted, emphasis added.) Even where an independent force contributes to the injury, the public improvement remains a substantial concurrent cause if “the injury occurred in substantial part because the improvement failed to function as it was intended.” (Id. at pp. 559-560.)

In Bookout v. State et al—The Trial Court erred as Stated: Even where an independent force contributes to the injury, the public improvement remains a substantial concurrent cause if “the injury occurred in substantial part because the improvement failed to function as it was intended.” (Id. at pp. 559-560.)


The public improvement is a substantial cause unless “the damage would have occurred even if the 8 project had operated perfectly.” (Id. at p. 560.) A public improvement is a “substantial concurring cause” if other forces alone would not have caused the damage and the public improvement failed to function as intended. (Ibid.)
In the statement of decision issued after the trial, the court found that although
CSAA had proved that the blockage that caused the sewage backup likely occurred in the sewer main owned and operated by the City, it also found that “. . . CSAA failed to prove . . . . how or why any such blockage in the City’s main occurred.” (Emphasis in original.) CSAA asserts that in requiring it to show how or why the blockage occurred, the trial court erred by elevating the standard for inverse condemnation from strict liability, where no fault need be shown, to a negligence or fault-based action. CSAA further asserts that the by proving that a blockage occurred in the City’s main, it by definition proved a failure of the City’s public work, and the City would be “strictly liable for all property damage resulting from that blockage . . . .”At trial, CSAA did not establish the specific cause of the sewage backup, but did present evidence of three different potential causes of the blockage in the main.
Specifically, CSAA provided evidence that there were tree roots invading the porous clay pipe of the sewer main, the main itself was an inadequate slope to effectively carry sewage away from homes, and there was standing water in the main. CSAA asserts that any of these three factors could establish “how or why” the blockage occurred. The trial court rejected CSAA’s contention that tree root invasion was a potential cause of the blockage in the sewer main. While acknowledging that tree root invasion into the main was visible from the video inspection, the trial court found that the lack of any other sewage backups along Maybell Way coupled with the City’s hydroflushing records showing no significant problem with tree roots on Maybell Way indicated that
the blockage that caused the backup into the McKennas’ homes was not the tree roots, but was temporary in nature, and quickly dissipated.
9
The trial court also rejected CSAA’s argument that the sewer main was designed
with an insufficient slope to adequately remove waste from home. The evidence at trial
was undisputed that the sewer main along Maybell Way was one half of one percent.
CSAA’s plumbing expert, Mark Hunter, testified that in his opinion, this slope was
inadequate to flush sewage solids through gravity along the pipes. Hunter based his
testimony on the design standards set forth in the Uniform Plumbing Code; however,
these standards are not applicable to facilities such as the sewer main in this case located
in the public right of way. The trial court concluded that based on the 40 years of its
existence without backup problems, the sewer main along Maybell Way was not
designed with an insufficient slope for sewage removal.
In addition to its finding that the tree roots and the slope were not the cause of the
sewage backup here, the trial court also found that CSAA failed to prove that the City’s maintenance and replacement program for the sewer pipes proximately caused the injuries in this case. The trial court cited Pacific Bell v. City of San Diego, supra, 81 Cal.App.4th 596, stating that unlike the defendants in that case who had a policy and practice of ignoring deterioration in facilities until damage occurred, the City here had a scheduled program of maintenance of the sewer pipes that cleaned the pipes and removed
any invading tree roots on a regular basis. The court in Pacific Bell opined that the
defendant’s “wait until it breaks” approach to lower cost maintenance demonstrated a
calculated risk of damage to the plaintiff’s property, making it proper to require the
public entity to bear the loss when the damage occurred. (Id. at p. 608.) Here, however,
the City had a proactive approach to maintenance that the trial court concluded did not
contribute to the sewage backup.
While the trial court found that neither tree roots nor inadequate slope caused the
sewage backup into the McKennas’ home, and that the City had a regular program of
maintenance for the sewer, it also specifically found that the blockage occurred in the
main owned and operated by the City. How or why the blockage occurred is irrelevant.
10
The purpose of the sanitary sewer is to carry waste water away from the residence. The
City’s sanitary sewer failed to carry waste water away from the McKennas’ residence
because of a blockage in the City’s main, and therefore, failed to function as intended.
The trial court’s conclusion that CSAA failed to establish “how or why” the
blockage occurred was clearly erroneous, because the court was focusing only on which of the three potential factors may have caused the injury, rather than whether “the public improvement failed to function as it was in intended . . . ,” as stated in Belair, supra. Here, by finding that the blockage occurred in the main, and the blockage caused sewage to back up into the McKennas’ home, the trial court impliedly found that the public improvement failed to function as intended. Under the rationale of Belair, supra, 47 Cal.3d 550, the City should be liable under inverse condemnation. In addition, by requiring CSAA to show “how and why” the blockage occurred, the trial court applied a higher standard of proof to its claim of inverse condemnation,
requiring CSAA to prove tortious conduct on the part of the City. In citing the fact that
the sewer main along Maybell Way had no history of sewage backups over 40 years it
was in existence, and the fact that the City had a regular system of hydroflushing every
two years that showed no history of tree root problems, the trial court was evaluating
whether the City acted reasonably in the operation of its sanitary system or sewer system.
However, whether or not the City acted reasonably or whether or not the McKenna
sewage backup was foreseeable is completely irrelevant in determining if the City is
liable under a theory of inverse condemnation.
We believe that where, as here, there were three substantial factors in causing the
sewage backup, namely tree roots invading the porous clay pipe of the sewer main,
inadequate slope, and standing water in the main, the burden would shift to the public
entity to produce evidence that would show that other forces alone produced the injury.
Any other result would have the effect of making the proof bar so high that a
homeowner could never prevail against a city in a case such as this. The City urges that
11
there may have been a momentary blockage that caused the backup in this case and then
quickly dissipated. Yet the fact that a blockage is “momentary” does not lessen its ability
to cause significant damage from a sewage backup. Moreover, if we accepted the City’s
assertion, we would make it impossible to prove causation, because a momentary
blockage would by definition be gone before a homeowner could conclusively prove
“how or why” it occurred.
We do not mean to say, as CSAA urges, the City would be “strictly liable for all
property damage resulting from the blockage . . . .” But here, where the new, nonporous
lateral pipe installed by the homeowner was conclusively shown not to be the source of
the blockage, it was error for the trial court to deem the proof of causation insufficient.
The blockage occurred on City land and in piping strictly under the control of the City.
Our discussion should not be taken as converting an inverse condemnation claim
into a solely strict liability concept. The homeowner here had the duty to demonstrate the actual cause of the damage to him. He did that. In finding the proof of causation insufficient because of a failure to establish the “how and why” of the blockage, the trial court asked for too much. In order to satisfy such a standard of proof, one would have to prove with particularity the actual mechanism of the backup. But our Constitution does not require that. It only requires proof of a substantial cause of the damage, indeed as was said by our Supreme Court in Belaire, “ ‘ “a substantial” cause-and-effect relationship which excludes the probability that other forces alone produced the injury.’ ” (Belair, supra, 47 Cal.3d at p. 559.) In this case, there was a substantial cause and effect
relationship between factors entirely within the City’s control, namely tree roots, slope and standing water in the main that contributed to the backup; there is no need to distinguish among them to specifically determine the “how and why” the blockage occurred. The City states in its brief that this case should be a “lesson” to CSAA that the insurance industry “cannot automatically expect public agencies to bail them out of 12 insurance losses every time there is a sewer backup.” This statement is surprising in light of the fact that the City is doing just that- expecting the insurance industry to pay for damages caused by a blockage in its sewer main.
What the City fails to recognize in this case is that CSAA did everything in its
power to address the McKennas’ plumbing issue, even going so far as to replace the entire lateral pipe from the McKennas’ home to the City’s sewer main, including the portion owned and operated by the City. There was nothing more CSAA could do to
protect the homeowners from sewage backup. CSAA paid the costs to repair the portion
of the lateral that was under the control of the homeowner, and did not claim that such
costs were attributable to the City. CSAA should not also be required to pay the costs of
damages as a result of a blockage in the City’s main over which CSAA had no control.
DISPOSITION
The judgment is reversed.
RUSHING, P.J.
WE CONCUR:
PREMO, J.
DUFFY, J.
California Automobile Association Inter-Insurance Bureau v. City of Palo Alto
H027980
13
Trial Court: Santa Clara County Superior Court
Superior Court Nos.: CV813502
Trial Judge: The Honorable Thang Barrett
Attorneys for Plaintiff and Appellant Buresh, Kaplan, Jang & Feller
California State Automobile Association
Inter-Insurance Bureau: Alan J. Jang
Ramon M. Gonzalez
Attorneys for Defendant and Respondent City of Palo Alto
City of Palo Alto: Office of the City Attorney
Gary M. Baum,
City Attorney
William B. Mayfield,
Senior Assistant City Attorney
California Automobile Association Inter-Insurance Bureau v. City of Palo Alto
H027980



Filed 5/8/97
IN THE SUPREME COURT OF CALIFORNIA

KENNETH BUNCH et al., )
)
Plaintiffs and Appellants, )
) S051966
v. )
) Ct. App. 4/2 E011405
COACHELLA VALLEY WATER )
dISTRICT, )
) Riverside County
Defendant and Respondent. ) Super. Ct. No. I-35916
)
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.
We agree with the Court of Appeal and conclude that Belair’s reasonableness standard, as endorsed and refined by Locklin’s balancing principles (discussed below), should apply to flood control cases, including this one, where the failure of publicly managed flood control facilities causes property damage. The Coachella Valley Water District (the District) here maintained dikes and levees that sought to channel water safely away from a potentially dangerous natural flow. When a water project fails, as this one did, causing flood damage, the issue is whether the system’s design, construction, and maintenance were reasonable. (Belair, supra, 47 Cal.3d at p. 565.) If the public entity’s conduct is unreasonable and a substantial cause of damage, the entity "is liable only for the proportionate amount of damage caused by its actions." (Locklin, supra, 7 Cal.4th at p. 368.) This inverse condemnation rule invokes constitutional balancing principles and is not governed by tort concepts of fault or negligence. It requires a balancing of the public need for flood control against the gravity of harm caused by unnecessary damage to private property. (See Van Alstyne, Inverse Condemnation: Unintended Physical Damage (1969) 20 Hastings L.J. 431, 489-490 (Van Alstyne).) Based on this rule, the Court of Appeal correctly concluded the District is not liable for the flood damage to plaintiffs’ property. We therefore affirm the Court of Appeal judgment.
I. Facts and Procedural Background
The District, a state agency, possesses flood control powers within a defined area of the Coachella Valley, including Magnesia Springs Canyon and the City of Rancho Mirage. Magnesia Springs Canyon is a natural watercourse that drains a watershed of about five and one-quarter square miles in the mountains south of Rancho Mirage. (See San Gabriel V. C. Club v. Los Angeles (1920) 182 Cal. 392, 397 [defining "natural watercourse" as a channel with defined bed and banks used by water naturally passing down as a collected body].) The discharge from Magnesia Springs Canyon watershed flows north, passes over Magnesia Falls, and forms the Magnesia Cove alluvial plain as it spreads toward Rancho Mirage.
Beginning in 1948, in an attempt to protect property from historical flooding in Magnesia Springs Canyon, a private developer constructed flood control facilities on the Magnesia Cove alluvial plain to divert canyon floodwaters northwest into the West Magnesia Channel. The District has owned the facilities since 1966. They consisted of: (1) a training levee to move the apex of the alluvial fan (a fan-shaped accumulation of sediment) to the north; (2) a diversion dike to intercept the waters and divert them to the northwest side of the alluvial fan; and (3) a channel to carry the waters to the Whitewater River. Constructed of locally quarried, uncompacted, and unreinforced sand and soils, the flood control facilities successfully diverted and channeled storm runoff away from the Bunches’ apartment building until a series of unusually severe tropical storms struck the area in 1976 (Kathleen), 1977 (Doreen), and 1979 (Dolores). According to the Bunches’ experts, their property was located in the sheet-overflow area of the Magnesia Cove alluvial fan, an area subject to flooding before the flood control facilities were built.
In 1976, the flood control facilities failed during Tropical Storm Kathleen at or near the point where they were intended to divert the floodwaters’ natural direction. Kathleen caused substantial damage throughout the entire Coachella Valley. Less than 2 percent of that damage, however, occurred on the Magnesia Cove and in Rancho Mirage. The storm did not damage the Bunches’ property. Local runoff, not failure of the District’s flood control facilities, caused the Rancho Mirage damage. From at least 1948 until Kathleen arrived, the facilities had successfully controlled all runoff from rain in the Magnesia Springs Canyon watershed.
In the wake of Kathleen—whose floods dug a 10-foot-wide breach in the works, through which water flowed 50 to 150 yards beyond—the District undertook emergency repairs using additional natural materials. The repaired facilities withstood the runoff that Tropical Storm Doreen produced in 1977. At that time, the District authorized Bechtel Corporation to conduct flood control studies in Palm Desert, Indian Wells, and Rancho Mirage. The study was in progress in July 1979, when Tropical Storm Dolores struck.
Dolores was the most severe tropical storm in the recorded history of that region of the state; it is sometimes called the "300-year flood." The floods Dolores caused overtopped the dike and levee at the point where the facilities were designed to divert the floodwaters, causing about $20 million in damage to the Magnesia Cove cities. Rains from Dolores led to the flooding of the Bunches’ apartment building, which was inundated with water, mud, and debris flowing from the point of the breach in the flood control facilities in a concentrated manner and at an abnormally rapid rate of flow. A wall along the southerly property line collapsed, and mud and debris buried automobiles parked on and adjacent to the property. The Bunches’ real property damage totaled $690,000.
In view of the damage Dolores caused, in November 1979, the United States Army Corps of Engineers agreed to participate in constructing flood control improvements. Their design, approval, and installation took nearly eight years to complete and cost the District about $7 million.
In 1982, the Bunches filed an inverse condemnation action against the District, seeking compensation for its physical invasion and destruction of their property. The court tried the liability issue, and a jury tried the damages issue. Applying then-traditional standards of inverse condemnation, the trial court concluded the District was strictly liable for the Bunches’ property damage, without regard to the reasonableness of its flood control measures, because the breach in its facilities was a substantial cause of the damage. (See Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 257 (Albers) [government strictly liable for damage caused by public improvement as designed and constructed].)
The jury awarded the Bunches $690,000 in damages. The District appealed from the judgment; the Bunches appealed from the judgment with regard only to the interest calculation included as part of the damages award. While the appeals were pending, this court decided Belair, which addressed the liability issue in the context of flood control facilities designed to protect against the " ‘common enemy’ of floodwaters." (Belair, supra, 47 Cal.3d at p. 565.) Belair held that ". . . when a public flood control improvement fails to function as intended, and properties historically subject to flooding are damaged as a proximate result thereof, plaintiffs’ recovery in inverse condemnation requires proof that the failure was attributable to some unreasonable conduct on the part of the defendant public entities." (Id. at p. 567.)
In light of Belair, the Court of Appeal concluded that the issue for the trial court was not whether the District was strictly liable for the Bunches’ damages—the theory on which the case was tried—but whether the failed flood control facilities’ design, construction, and maintenance had been reasonable. (Bunch v. Coachella Valley Water Dist. (1989) 214 Cal.App.3d 203, 216-217 (Bunch I).) Bunch I opined that Belair’s analysis applied to all cases involving unintentional water runoff, whether they involved facilities designed to keep water within its natural course or designed to divert water safely away from a potentially dangerous natural flow. (Bunch I, supra, 214 Cal.App.3d at p. 213.)
Following a second trial limited to the reasonableness question, the court ruled the District had acted reasonably under Belair, supra, 47 Cal.3d 550, and found it not liable for the damage that occurred after floodwaters from Dolores breached its flood control facilities. The Bunches, contending that the trial court misunderstood and misapplied Belair, again appealed, arguing that the finding of reasonableness was erroneous as a matter of law.
The Court of Appeal affirmed the trial court judgment, applying much of the same reasoning it applied in Bunch I. On rehearing, the court rejected the Bunches’ argument that our recent Locklin decision restricted Belair’s reasonableness rule to those cases involving activity immune from liability under the common law. The court concluded the District acted reasonably in designing, constructing, and maintaining its flood control facilities and should not be held liable because those facilities failed to protect the Bunches’ property from Dolores’s severe damage. As we explain, we agree with the Court of Appeal.
II. Discussion
A. Background
Historically, courts analyzed inverse condemnation liability issues by referring to traditional tort and property law concepts. This approach was due in part to the assumption that inverse condemnation liability was limited to situations in which a private party would be held liable for injury to property. (Belair, supra, 47 Cal.3d at p. 562.) That general understanding changed with our decision in Albers, supra, 62 Cal.2d 250, which "shifted the focus in inverse condemnation cases from the common law to the Constitution." (Belair, supra, 47 Cal.3d at p. 562.)
The Albers case involved a landslide that county road construction caused. (Albers, supra, 62 Cal.2d at pp. 254-255.) In finding the county liable for the landslide damage, Albers " ‘rejected the notion that there need be a congruence between public and private liability in inverse condemnation actions.’ " (Belair, supra, 47 Cal.3d at pp. 562-563.) The Albers court made it clear that its liability rule did not derive from statutory or common law tort doctrine, but instead rested on the constitutional requirement of just compensation. (Albers, supra, 62 Cal.2d at p. 262; see Holtz v. Superior Court (1970) 3 Cal.3d 296, 303 (Holtz).) Albers relied on earlier precedent defining the relevant "policy" underlying our constitutional provision: " ‘The decisive consideration is whether the owner of the damaged property if uncompensated would contribute more than his proper share to the public undertaking.’ " (Albers, supra, 62 Cal.2d at p. 262, quoting Clement v. State Reclamation Board (1950) 35 Cal.2d 628, 642 (Clement)). In other words, as the Holtz court observed, Albers premised its inverse condemnation liability rule on its belief that ". . . the underlying purpose of our constitutional provision in inverse—as well as ordinary—condemnation is ‘to distribute throughout the community the loss inflicted upon the individual . . . .’ " (Holtz, supra, 3 Cal.3d at p. 303; see Belair, supra, 47 Cal.3d at p. 558.)
Thus, the Albers court held that, with two exceptions, our state Constitution’s just compensation clause requires that an owner of real property receive compensation for any actual physical injury to that property, whether foreseeable or not, that a public improvement, as deliberately designed and constructed, proximately caused. (Albers, supra, 62 Cal.2d at pp. 263-264.) The Albers strict liability test was later restated in terms of " ‘ "substantial" causation,’ " so that landowners could establish inverse condemnation liability if the public improvement substantially caused the damage, although the improvement was only one of several concurrent causes. (Belair, supra, 47 Cal.3d at p. 559; see Souza v. Silver Development Co. (1985) 164 Cal.App.3d 165, 171; see also Ingram v. City of Redondo Beach (1975) 45 Cal.App.3d 628, 633-634; cf. Van Alstyne, supra, 20 Hastings L.J. at pp. 436-438 [noting that courts should express Albers’s proximate cause requirement in terms of substantial cause and effect relationship when eliminating foreseeability as an element of inverse condemnation].)
Albers recognized two historical exceptions to its strict liability inverse condemnation rule, "in which the urgency or particular importance of the governmental conduct involved was so overriding that considerations of public policy [advised] against a rule rendering the acting public entity liable absent fault." (Holtz, supra, 3 Cal.3d at pp. 304-305.) The first exception involved damages a public entity inflicted in the proper exercise of its police power. (Id. at p. 305; see Gray v. Reclamation District No. 1500 (1917) 174 Cal. 622, 638.)
The second exception to the strict liability doctrine occurred in the "unique" context of water law and derived from upper riparian private landowners’ limited common law privilege to defend themselves against the "common enemy" of floodwaters. (Archer v. City of Los Angeles (1941) 19 Cal.2d 19, 24-25 (Archer); Albers, supra, 62 Cal.2d at p. 262; Holtz, supra, 3 Cal.3d at pp. 304-306.) Under this traditional rule, a public or private entity’s liability for damage substantially caused by its flood control improvement efforts depended on whether its flood control system was intended to "improve" or "divert" the water’s natural flow. (Archer, supra, 19 Cal.2d at p. 26.)
The "common enemy" doctrine granted private landowners the privilege of improving their property from external hazards such as floodwaters along a natural watercourse across that property. (Archer, supra, 19 Cal.2d at p. 26.) As the Belair court explained in detail, under the "Archer exception" to the later Albers rule of inverse condemnation liability, public entities were granted unqualified immunity for activity that was privileged at common law, i.e., where the public entity had a common law right to inflict damage. (Belair, supra, 47 Cal.3d at pp. 563-564.) The Archer exception, however, did not permit landowners to divert stream waters from their natural drainage across adjoining property. (Clement, supra, 35 Cal.2d at pp. 637-638.) Thus, in cases involving stream water diversion as a flood control measure, the public or private landowners were held liable for any resulting damage without any specific determination of fault. (Ibid.)
The Archer exception to the Albers strict liability rule was soon criticized and later qualified by courts applying the doctrine in flood control cases. In Keys v. Romley (1966) 64 Cal.2d 396, 401 (Keys), Justice Mosk observed: "The courts which evolved and applied the extreme common enemy doctrine apparently acted from an exaggerated and uncritical respect for the rights and privileges of land ownership as expressed in the maxim cujus est solum [landowner owns everything above and below the land], together with an apparent belief that the only alternative would be to adopt the rule of natural servitude of natural drainage which would hinder the improvement of land and stultify economic development." After reviewing the development of California water law, Keys adopted a "reasonable use rule" with respect to the flow of surface waters from a dominant or upper landowner. (Id. at pp. 407, 409.) This rule acknowledged California’s application of the civil law rule, under which owners of a dominant estate could, without liability, discharge surface water as it naturally flowed, but were required to act reasonably in using their property to avoid harming adjacent property. (Id. at p. 409.)
The Archer exception also created uneasiness among property law scholars, including Professor Van Alstyne, who observed: "The rationale of the ‘common enemy’ rule . . . is of dubious validity when considered in the context of governmentally administered flood control projects developed for the collective protection of entire regions. . . . [¶] Piecemeal construction, often an inescapable feature of such major flood control projects, creates the possibility of interim damage to some lands left exposed to flood waters while others are within the protection of newly erected works. Indeed, the partially completed works, by preventing escape of waters that previously were uncontrolled, actually may increase the volume and velocity of flooding . . . . The prevailing private law doctrine embodied in the ‘common enemy’ rule, however, imposes no duty upon the public entity to provide complete protection against flood waters . . . . Increased or even ruinous damage incurred by the temporarily unprotected owners, due to the inability of the improvements to provide adequate protection to all, therefore, is not a basis of inverse liability. The constitutional promise of just compensation for property damage for public use thus yields to the overriding supremacy of an anomalous rule of private law." (Van Alstyne, supra, 20 Hastings L.J. at pp. 500-501, fns. omitted; see also Holtz, supra, 3 Cal.3d at pp. 307-308, fn. 13.)
B. Belair
Belair reexamined the traditional distinctions in flood control law and attempted to reconcile the constitutional principles of Albers, supra, 62 Cal.2d 250, with the unique problems flood control litigation created in an increasingly urbanized society. Belair involved the construction of public levees along a natural drainage course in an attempt to prevent flooding in an area historically subject to it. (Belair, supra, 47 Cal.3d at pp. 555-557.) Relying in part on Justice Mosk’s historical analysis of property law in Keys, supra, 64 Cal.2d at pages 407-409, Belair recognized the dilemma modern courts increasingly faced when determining responsibility for damages caused by public works: "On the one hand, a public agency that undertakes to construct or operate a flood control project clearly must not be made the absolute insurer of those lands provided protection. On the other hand, the damage potential of a defective public flood control project is clearly enormous." (Belair, supra, 47 Cal.3d at p. 565.) Belair concluded that these competing concerns were best served in the flood control context by a rule of "reasonableness." (Id. at pp. 565-566.) The court also suggested that in some cases an extraordinary storm may constitute an intervening cause that supersedes the public improvement in the chain of causation. (Id. at p. 560.) But because the Court of Appeal limited retrial to the reasonableness issue, significant here is Belair’s holding that ". . . the fact that a dam bursts or a levee fails is not sufficient, standing alone, to impose liability. However, where the public agency’s design, construction or maintenance of a flood control project is shown to have posed an unreasonable risk of harm to the plaintiffs, and such unreasonable design, construction or maintenance constituted a substantial cause of the damages, plaintiffs may recover regardless of the fact that the project’s purpose is to contain the ‘common enemy’ of floodwaters. [Citations.]" (Id. at p. 565, fn. omitted.)
Belair was careful to emphasize that its "reasonableness" rule would not discourage beneficial flood control projects, but would allow compensation for property that those projects unfairly damaged, creating a proper balance in constitutional takings jurisprudence. (Belair, supra, 47 Cal.3d at p. 565; see also Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104, 124-125 [citing reasonableness as a factor for consideration in inverse condemnation action]; Armstrong v. United States (1960) 364 U.S. 40, 49 [takings clause does not obligate individual property owners to bear burdens that the general public should bear].) Belair also relied on Van Alstyne, who observed: " ‘Mindful of the enormous damage-producing potential of defective public flood control projects, the courts have insisted that public agencies must act reasonably in the development of construction and operational plans so as to avoid unnecessary damage to private property. Reasonableness, in this context, is not entirely a matter of negligence, but represents a balancing of public need against the gravity of private harm.’ [Citation.]" (Belair, supra, 47 Cal.3d at pp. 565-566, quoting Van Alstyne, supra, 20 Hastings L.J. at p. 455, fns. omitted.)
Belair acknowledged that the "common enemy" doctrine did not permit a public entity to divert water from its natural channel or drainage, and recognized that some post-Albers decisions may have endorsed a rule of strict liability. (Belair, supra, 47 Cal.3d at p. 566; see, e.g., Imperial Cattle Co. v. Imperial Irrigation Dist. (1985) 167 Cal.App.3d 263 [irrigation system overflowed, diverting water onto plaintiffs’ property]; McMahan’s of Santa Monica v. City of Santa Monica (1983) 146 Cal.App.3d 683 [water main diverting water under plaintiff’s property failed, damaging property]; Yee v. City of Sausalito (1983) 141 Cal.App.3d 917 [storm drainage system that diverted water across plaintiff’s property failed, and water seeped into plaintiff’s soil, causing subsidence]; Marin v. City of San Rafael (1980) 111 Cal.App.3d 591 [underground drainage pipe diverting water under plaintiffs’ property failed, causing property damage]; Granone v. County of Los Angeles (1965) 231 Cal.App.2d 629 [county strictly liable for public flood control works defectively constructed and negligently maintained].) This distinction for cases involving the intentional diversion or obstruction of a channeled flow of stream water from its natural course served as the foundation for the Bunches’ appeals in the present matter and in Bunch I.
Without expressly disapproving those Court of Appeal decisions finding strict liability for diverted surface waters, Belair observed in dictum that its "reasonableness" analysis would most likely apply to future diversion cases when the government sought to prevent flooding on land potentially subject to it. The court doubted whether unintended property damage caused by diversion of water "would elevate the test of inverse condemnation liability to absolute liability, rather than a reasonableness standard." (Belair, supra, 47 Cal.3d at p. 567.) Belair emphasized that in all flood control cases, ". . . the purposes of the Constitution, rather than the rules ‘emanating from the complex and unique province of water law,’ must fix the extent of a public entity’s responsibility. [Citation.]" (Id. at p. 567, quoting Holtz, supra, 3 Cal.3d at p. 306.)
Thus, under Belair’s analysis, to establish whether a public entity acted reasonably in its flood control measures, the court must evaluate the facts, balancing the public need against the gravity of private harm. "The reasonableness of the public agency’s conduct must be determined on the facts of each individual case, taking into consideration the public benefit and the private damages in each instance. [Citation.]" (Belair, supra, 47 Cal.3d at p. 566; see also Van Alstyne, supra, 20 Hastings L.J. at p. 455.)
C. Locklin
Our next case involving property damage that public flood control measures caused answered some of the questions Belair left open. In Locklin, we held that Belair’s rule with respect to flood control projects and the "common enemy" doctrine had broader application to cases in which a public entity deliberately drained excess surface water into a natural watercourse, which eventually caused damage to downstream property. (Locklin, supra, 7 Cal.4th at p. 367.) There, the owners of property along a creek and natural watercourse sued various public entities after public and private development eventually led to increased water flow in the creek, which damaged their property. Although we observed that the trial court erred in exempting the public entities from liability under Archer’s "natural watercourse" rule (Archer, supra, 19 Cal.2d at p. 26), we nonetheless concluded that liability was unwarranted because plaintiffs failed to prove that any unreasonable public entity conduct caused their property damage (Locklin, supra, 7 Cal.4th at p. 367).

Bookout v.
In a thoughtful discussion of the complex nature of water law and the archaic rules that traditionally governed liability questions, Locklin explained that following Belair, which involved only flood control projects, some lower courts continued to apply the Archer exception to cases in which the public entity invoked the natural watercourse rule. (Locklin, supra, 7 Cal.4th at p. 366.) As we observed, however, Belair "signalled not the continuation of the Archer exception, but its demise. It survived only vestigially in the limitation of inverse condemnation liability for public flood control projects in natural watercourses to damage resulting from a public entity’s unreasonable conduct. Thereafter, a public agency that acted unreasonably in regard to its use or alteration of a natural watercourse might be liable in inverse condemnation for downstream damage." (Locklin, supra, 7 Cal.4th at p. 366, original italics.)
Bookout v.
In holding that upstream and downstream riparian owners must act reasonably in their flood control efforts, Locklin opined that ". . . with respect to flood control projects, the public agency is liable only if its conduct posed an unreasonable risk of harm to the plaintiffs, and that unreasonable conduct is a substantial cause of the damage to plaintiff’s property. The rule of strict liability generally followed in inverse condemnation (see Albers, supra, 62 Cal.2d 250, 263-264) is not applicable in this context." (Locklin, supra, 7 Cal.4th at p. 367.)
Thus, Locklin reasoned that when a public entity uses a natural watercourse to drain surface waters from improved public property and makes storm drainage improvements that cause creek banks to erode and suffer landslide damage during a rainstorm, "[i]nverse condemnation liability ultimately rests on the notion that the private individual should not be required to bear a disproportionate share of the costs of a public improvement. Moreover, whether compensation must be paid for damages caused by alterations in the flow of a natural watercourse involves a balancing of interests." (Locklin, supra, 7 Cal.4th at pp. 367-368.) This was essentially Belair’s rationale. (Belair, supra, 47 Cal.3d at p. 566.)
In light of Belair, Locklin recognized that to apply the reasonableness rule to cases other than those involving previously privileged conduct, courts must identify "standards for balancing the interests of riparian landowners and assessing reasonableness in inverse condemnation actions." (Locklin, supra, 7 Cal.4th at p. 368.) Noting that Keys stated "the basic requirements of reasonable conduct" (Locklin, supra, 7 Cal.4th at p. 368; see Keys, supra, 64 Cal.2d at p. 410), and that Professor Van Alstyne proposed standards for balancing landowners’ various interests, Locklin identified several factors that could be used in assessing public entity liability: "(1) The overall public purpose being 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 damage in relation to risk-bearing capabilities; (5) the extent to which damage of the kind the plaintiff sustained is generally considered as a normal risk of land ownership; and (6) the degree to which similar damage is distributed at large over other beneficiaries of the project or is peculiar only to the plaintiff." (Locklin, supra, 7 Cal.4th at pp. 368-369.)
In addition, Locklin observed that "[r]easonableness in this context also considers the historic responsibility of riparian owners to protect their property from damage caused by the stream flow and to anticipate upstream development that may increase that flow. Keeping in mind the purpose of the constitutional right to compensation for damage caused by public works and improvements—that property owners contribute no more than their proper share to the public undertaking—plaintiff must demonstrate that the efforts of the public entity to prevent downstream damage were not reasonable in light of the potential for damage posed by the entity’s conduct, the cost to the public entity of reasonable measures to avoid downstream damage, and the availability of and the cost to the downstream owner of means of protecting that property from damage." (Locklin, supra, 7 Cal.4th at p. 369.)
Bookout v.
Locklin thus provided courts with guidelines for applying the reasonableness rule we first recognized in Keys, supra, 64 Cal.2d 396, and later applied to determine a public entity’s liability when its flood control project failed in Belair, supra, 47 Cal.3d at pages 565-566. Locklin emphasized that ". . . the reasonableness of a landowner’s action in discharging surface water runoff into a natural watercourse or in altering the watercourse itself cannot be determined in isolation. An owner in the lower reaches of a natural watercourse whose conduct has a relatively minor impact on the stream flow in comparison with the combined effect of actions by owners in the upper reaches of the watercourse may not be held liable for any damage caused by the stream flow beyond the proportion attributable to such conduct. If the rule were otherwise, owners at the lowest reaches of a watercourse could preclude development of upstream property by imposing on a single upstream owner the cost of all damage caused by the addition of surface water runoff if that addition combined with the existing stream flow damaged the lowest properties." (Locklin, supra, 7 Cal.4th at p. 360.)
Thus, a property owner whose unreasonable acts cause damage to neighboring property is liable only for its proportionate share of the damage. When the upstream owner is a public entity, the court must also consider the nature of the improvement or public work, the degree to which its value offset the property damage, and all other relevant matters, including whether the utility of the possessor’s use of land outweighs the risk of damage to the property. (Locklin, supra, 7 Cal.4th at pp. 359-360.) While the public entity must bear its proportionate share of liability, it is not subject to joint liability, but only to several liability. (Id. at p. 372, citing Mehl v. People ex rel. Dept. Pub. Wks. (1975) 13 Cal.3d 710, 718.)
D. Application of Belair and Locklin to Diversion Cases
The question before us is whether the reasonableness rule developed in the context of flood control improvements along natural watercourses should apply to cases in which a public entity diverts and rechannels water under a flood control system of dikes and levees that fail in a severe rainstorm, causing damage to properties historically subject to flooding. We conclude it should, and we disapprove those cases concluding otherwise.
The Bunches assert that the rule should not apply here because both Belair and Locklin expressly limited its application to conduct that would have been privileged under common law doctrines, i.e., the Archer "common enemy" exception. Because the diversion of waters from their natural course was not a privileged activity before the Belair decision, the Bunches assert the District should be strictly liable under the Albers rule for damage its flood control measures caused. (Albers, supra, 62 Cal.App.2d at pp. 263-264.) The Bunches rely on numerous pre-Belair cases that have applied an absolute liability standard to flood control cases involving the diversion of surface or floodwaters from their natural channel or drainage. (See, e.g., Youngblood v. Los Angeles County Flood Control Dist. (1961) 56 Cal.2d 603; Imperial Cattle Co. v. Imperial Irrigation Dist., supra, 167 Cal.App.3d 263; McMahan’s of Santa Monica v. City of Santa Monica, supra, 146 Cal.App.3d 683; Yee v. City of Sausalito, supra, 141 Cal.App.3d 917; Marin v. City of San Rafael, supra, 111 Cal.App.3d 591; Granone v. County of Los Angeles, supra, 231 Cal.App.2d 629.)
As the Bunches observe, these decisions hold that a public entity’s diversion of waters from their natural course that results in damage to private property requires payment of just compensation to the property owner. The Bunch I court rejected the Bunches’ argument that these pre-Belair cases should control the result here, concluding that Belair’s "far-reaching and elaborate analysis" should be applied "beyond the limited facts of that case." (Bunch I, supra, 214 Cal.App.3d at p. 212.) We discuss the Bunches’ argument below.
1. Belair/Locklin rule in diversion cases
As noted, the Bunches assert that Belair’s reasonableness rule should apply only to those limited cases in which the public entity’s conduct would have been privileged at common law, and that the pre-Belair strict liability rule should apply to cases involving government diversion of water from its natural course. (See, e.g., McMahan’s of Santa Monica v. City of Santa Monica, supra, 146 Cal.App.3d at p. 698.) But Belair warned against limiting application of its rule to cases involving previously privileged conduct. Thus, in response to the plaintiffs’ contention that the diversion cases endorsing a rule of liability without fault should also apply to nondiversion situations, Belair concluded it need not examine the validity of those diversion decisions because plaintiffs presented no evidence that the District affirmatively diverted or burdened their property with more floodwaters than would have escaped without the District’s flood control measures. (Belair, supra, 47 Cal.3d at p. 567.) Belair doubted "whether evidence of an unintended ‘diversion’—an elusive concept to begin with [citation]—would elevate the test of inverse condemnation liability to absolute liability, rather than a reasonableness standard. As earlier discussed, the purposes of the Constitution, rather than the rules ‘emanating from the complex and unique province of water law,’ must fix the extent of a public entity’s responsibility. [Citation.]" (Ibid.)
Belair’s dictum indicates that the court believed its analysis could apply to all flood control cases involving unintended property damage. Nonetheless, our reluctance to extend Belair beyond its facts is the basis for the Bunches’ assertion that the case has limited application, an argument aided, in some respects, by Belair’s invocation of tort concepts of "intent" in a case addressing a public entity’s inverse condemnation liability under section 19. The Bunches also rely on Locklin’s observation that Belair involved an activity formerly "privileged under the Archer doctrine." (Locklin, supra, 7 Cal.4th at p. 354, fn. 16; see also Los Osos Valley Associates v. City of San Luis Obispo (1994) 30 Cal.App.4th 1670, 1680 [dictum interpreting Locklin as creating exception to Albers in limited cases where the state at common law had privilege to inflict damage].)
As the District and its amici curiae observe, however, Belair’s policy reasons for imposing a reasonableness rule in common enemy cases—to avoid discouraging beneficial flood control improvements, while compensating losses unfairly incurred—extend logically to all cases involving flood control improvements affecting property historically subject to flooding, without regard to whether the activity was privileged at common law. A constitutional analysis for determining inverse condemnation liability in the flood control context should not include "a fruitless search for the somewhat artificial moral elements inherent in the tort concepts of negligence and intentional wrongs." (Van Alstyne, supra, 20 Hastings L.J. at p. 495; see also Van Alstyne, Statutory Modification of Inverse Condemnation: The Scope of Legislative Power (1967) 19 Stan.L.Rev. 727, 771-776.) As Professor Van Alstyne recognized, ". . . it is arguable that strict liability for damage resulting from the diversion of water flowing in a natural watercourse may be reasonably sensible as applied to adjoining riparian owners; a contrary view would expose settled reliance interests to the threat of repeated and diverse private interferences that could discourage natural resource development. Stream diversions, however, may be integral features of coordinated flood control, water conservation, land reclamation, or agricultural irrigation projects undertaken on a large scale by public entities organized for that very purpose. Where this is so, the community may suffer more by general fiscal deterrents resulting from indiscriminately imposed strict liabilities than by specifically limited liabilities determined by the reasonableness of the risk assumptions underlying each diversion." (Van Alstyne, supra, 20 Hastings L.J. at p. 502, fn. omitted.)
Moreover, contrary to the Bunches’ contention, nothing in Locklin or its progeny precludes application of Belair’s reasonableness rule to cases involving the failure of flood control measures designed to divert potentially dangerous natural water flow. Pre-Belair cases considering inverse condemnation liability under the just compensation clause addressed whether owners of damaged property would contribute more than their proper share to the public undertaking if not compensated for the damage. (Ante, at p. 7; see, e.g., Clement, supra, 35 Cal.2d at p. 642.) In light of Belair and Locklin, this principle is balanced by the possibility that imposing open-ended liability on public entities charged with creating and maintaining flood control improvements will discourage the development of needed public works. (Belair, supra, 47 Cal.3d at p. 565.)
As Professor Van Alstyne explained, "Plan or design characteristics that incorporate the probability of property damage under predictable circumstances may later be judicially described as ‘negligently’ drawn; yet, in the original planning process, the plan or design with its known inherent risks may have been approved by responsible public officers as being adequate and acceptable for non-legal reasons. For example, the damage, although foreseeable, may have been estimated at a low order of probability, frequency, and magnitude, while the added cost of incorporating minimal safeguards may have been unacceptably high in proportion to available manpower, time and budget. . . . The governmental decision . . . to proceed with the project under these conditions thus may have represented a rational (and hence by definition non-negligent) balancing of risk against practicability of risk avoidance." (Van Alstyne, supra, 20 Hastings L.J. at pp. 489-490, fns. omitted.)
Thus, the placement, design, and construction of even the most effective system inherently involve a complex balancing of interests and risks. Whatever choice the responsible agency makes will necessarily affect the patterns of flooding in the event the project fails, and will almost certainly increase certain risks in order to reduce others. The dangers posed to individual lands by the failure of any public flood control project are "potentially enormous" and sometimes deserve compensation. However, strict and "open-ended" liability for the failure of a project whose overall design, construction, operation, and maintenance was "reasonable" would unduly deter the development of these vital bulwarks against common disaster. (See Belair, supra, 47 Cal.3d at p. 565.)
In the context of inverse condemnation, therefore, a flood control agency does not necessarily exact "disproportionate," and thus compensable, contributions from particular landowners simply because it constructs adjacent flood control improvements that may alter how floodwaters will affect those landowners if the improvements fail to contain the flow. When a public flood control system fails to protect land from historic periodic flooding, the only way to determine whether a damaged private landowner has thereby been forced to contribute a compensable "disproportionate" share of the public undertaking is to determine whether the system, as designed, constructed, operated, and maintained, exposed him to an "unreasonable" risk of harm, either individually or in relation to other landowners.
Therefore, when a public flood control improvement designed to divert or rechannel potentially dangerous water flow is a substantial cause of property damage, courts must balance " ‘public need against the gravity of private harm’ " in determining whether to compensate the landowners for that damage. (Belair, supra, 47 Cal.3d at p. 566, quoting Van Alstyne, supra, 20 Hastings L.J. at p. 455, fn. omitted.) In balancing these interests, courts must weigh the factors set forth in Locklin, supra, 7 Cal.4th at pages 368-369. (Ante, at pp. 15-16.) We derive from Belair, and from the Locklin factors applying its rule, the principle that compensation in cases involving the failure of flood control improvements to protect property adequately against historic periodic flooding should rest not on antiquated notions of fault, or common law labels defining the type of waters requiring flood control measures, but rather on the balancing of interests that section 19 requires. This balancing of interests serves both the private sector and public improvement efforts by addressing the cost-spreading objective of the just compensation clause while protecting public entities from unlimited, undeserved liability that could well inhibit further construction of public works.
2. Applying the Belair/Locklin test
The Bunches next assert that even if we do apply a Belair/Locklin balancing test pursuant to the objectives of section 19, the trial court should have considered only the District’s reasonableness in constructing the particular facility that failed, rather than conducting an assessment of all District flood control facilities. Bunch I had remanded the case for a determination of the District’s reasonableness in light of Belair. The Bunches assert that, on remand, the trial court impermissibly relied on the District’s limited financial resources as the principal ground for its finding of reasonableness and did not properly consider the District’s design, construction, maintenance, or operation of the failed facilities. The Bunches rely on several decisions limiting reliance on financial considerations in determining constitutional rights. (See, e.g., Watson v. Memphis (1963) 373 U.S. 526 [city could not refuse to desegregate public parks on theory that it was less expensive to deny constitutional rights than to afford them]; In re Grimes (1989) 208 Cal.App.3d 1175 [officials could not use budget shortage to deny prisoners reasonable telephone access to counsel]; Inmates of Sybil Brand Institute for Women v. County of Los Angeles (1982) 130 Cal.App.3d 89, 102 [budget constraints could not justify denial of equal protection to female inmates].)
As the District observes and the record indicates, the trial court may have considered evidence of the District’s limited budget and its allocation of funds among all its activities. This evidence was relevant and admissible. (Locklin, supra, 7 Cal.4th at p. 369.) As Professor Van Alstyne observed, fiscal constraints are part of the careful balancing of the public and private interests involved in the initial determination of the government’s reasonableness in its shifting the risk of loss from flooding to private resources. He wrote: "Assuming foreseeability of damage, the critical factors in the initial stage of the balancing process relate to the practicability of preventive measures, including possible changes in design or location. If prevention is technically and fiscally possible, the infliction of avoidable damage is not ‘necessary’ to the accomplishment of the public purpose. . . . [¶] On the other hand, if the foreseeable type of damage is deemed technically impossible or grossly impracticable to prevent within the limits of the fiscal capability of the public entity, the decision to proceed with the project despite the known danger represents an official determination that public necessity overrides the risk of private loss. The shifting of the risk of loss to private resources is not sought to be supported on grounds of mere prudence or expedience but on the view that the public welfare requires the project to move ahead despite impossibility of more complete loss prevention. In this situation, an additional variable affects compensation policy. The magnitude of the public necessity for the project at the particular location, with the particular design or plan conceived for it, must be assessed in comparison to available alternatives for accomplishing the same underlying governmental objective with lower risk, but presumably higher costs . . . ." (Van Alstyne, supra, 20 Hastings L.J. at pp. 491-492, fns. omitted.) Thus, although fiscal constraints are never alone determinative of the government’s reasonableness in its flood control measures, they are a relevant consideration in the overall balancing test and reasonableness determination.
As the District also points out, however, the trial court did not base its finding of reasonableness solely on the District’s financial limitations. Instead, the trial court properly considered other relevant evidence, including substantial expert testimony on the reasonableness of the District’s flood control measures and remedial action following Tropical Storm Kathleen. Based on all the evidence presented, the trial court issued a statement of decision that concluded the District acted with "commendable promptness" in repairing the breach Kathleen caused.
Bookout v. Did Caltrans, County, OCSD and Railroad act Reasonably?
The court believed the District acted promptly to obtain professional information and expertise in contacting Bechtel within days of Kathleen’s damage. The court also concluded the District acted reasonably in its effort to provide the Coachella Valley with effective flood control.
As the Court of Appeal observed, the Bunches’ expert, consulting engineer Wilbur Lockman, testified that in his opinion the construction of the flood control facilities was unreasonable for their intended purpose. Nonetheless, Lockman conceded the District was not on notice of the need for repair or redesign of the flood control facilities until Tropical Storm Kathleen in 1976.
Bookout v. Caltrans, County, OCSD and Railroad were all on notice

Dr. Simons, also a consulting engineer, testified that better remedial measures after Kathleen would have included realigning the angle at which the levee diverted water toward the dike and stabilizing the channel with rock riprap grouted with concrete or soil cement.
Several experts testified on the District’s behalf, including Joseph Countryman, a consulting engineer. Countryman testified that Dolores was twice as large as a 100-year storm and larger than the "standard project flood" the United States Army Corps of Engineers used in designing flood protection measures. Countryman stated that Bechtel had reviewed the corrective measures Lockman and Simons recommended and had rejected them because they would not have worked had they been implemented. In Countryman’s opinion, the District’s actions following Kathleen in 1976 comported with sound engineering practice and were reasonable.
Thomas Levy, the District’s general manager and chief engineer, testified that the District retained Bechtel in 1976 within days of Kathleen to prepare a flood control plan for the Cove communities of Indian Wells, Rancho Mirage, and Palm Desert. As Levy noted, Bechtel’s plan took several years to implement because it required the District to address environmental issues.
In sum, the record shows the trial court’s conclusion the District acted reasonably and promptly in repairing post-Kathleen damage and in taking steps to develop a more permanent flood control plan was sound. Expert testimony indicated the detailed steps the District undertook to secure expert technical and engineering information on repairing its facilities and in managing those repairs represented sound engineering practice. Expert testimony was in conflict as to the engineering feasibility of the short-term solution of repairing the breach in the West Magnesia Springs Canyon stormwater facilities to restore the preexisting level of flood protection, allowing the District to devote its remaining resources to developing a comprehensive flood control plan. But as the Court of Appeal observed, the trial court reasonably relied on the District’s expert testimony that any attempt to "quick fix" the problem by realigning the diversion levee and lining it with stronger material would have failed during Tropical Storm Dolores. Thus, the trial court based its finding of reasonableness on a careful analysis of several factors, including the project’s purpose to divert the potentially dangerous natural flow in order to prevent flood runoff from fanning out over the Magnesia Cove alluvial plain, the public need for the project, the risk of private harm, the alternatives available to reduce the risk of harm, and the District’s overall fiscal and flood control responsibilities.
The Court of Appeal concluded that this evidence satisfied Belair’s reasonableness rule by applying "the basic requirements of reasonable conduct" that the Keys court identified (Locklin, supra, 7 Cal.4th at p. 368; see Keys, supra, 64 Cal.2d at p. 410) and that the Locklin court applied (Locklin, supra, 7 Cal.4th at p. 369). Although the Court of Appeal did not specifically refer to the six factors Locklin identified for use in assessing liability, factors which we hold courts should apply uniformly in all flood control cases, we nonetheless conclude the trial court adequately assessed the reasonableness of District’s flood control measures by using a comparable test.
Bookout v. No tests were relied on by this trial court?
The Bunches also contend that Belair and Locklin should not apply to cases in which the storm that breached the flood control facility exceeded its design capacity. Here, the District’s improvements were designed to withstand a "25-year flood." According to the Bunches, because the tropical storm that broke the levee was considered a "300-year flood," the District should be strictly liable for its inadequate improvements that were designed to protect against a "25-year flood," notwithstanding the Belair/Locklin reasonableness rule. But as we discussed, even Belair observed that a public entity that undertakes to construct improvements to protect property from potentially dangerous flood damage cannot be made the "absolute insurer" of those lands it seeks to protect. (Belair, supra, 47 Cal.3d at p. 565.) Henceforth, the focus in flood control cases should be whether, under the factors discussed above, the public entity acted reasonably in designing, constructing, and maintaining its flood control systems, not whether it could insure that no flooding would ever occur on that same property. Thus, the Bunches’ final argument has no merit.
III. Conclusion
The Belair/Locklin reasonableness test applies to cases involving public flood control works that cause physical damage to private property. As the Court of Appeal concluded, the trial court properly understood and applied the Belair reasonableness test. It used many of the balancing factors that Locklin subsequently applied. We conclude that courts should use these factors in cases where a public entity’s flood control measures, designed to protect against potentially dangerous periodic flooding, cause property damage. Although the Court of Appeal did not directly apply those factors, we find nothing in Locklin that requires us to modify the court’s disposition. We therefore affirm the Court of Appeal judgment.
CHIN, J.
WE CONCUR:
GEORGE, C.J.
MOSK, J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
BROWN, J.

CONCURRING OPINION BY MOSK, j.

I concur in the analysis and result reached by the majority.
I write only to point out that their opinion, relying substantially on Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, is not fundamentally inconsistent with my dissent in Belair (id. at p. 568 (dis. opn. of Mosk, J.)).
MOSK, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
__________________________________________________________________________________
Unpublished Opinion XXX NP opn. filed 2/5/96, 4th Dist., Div. 2
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S051966
Date Filed: May 8, 1997
__________________________________________________________________________________
Court: Superior
County: Riverside
Judge: Richard V. Lee, Temporary Judge*
__________________________________________________________________________________
Attorneys for Appellant:
Oliver, Barr & Vose, Oliver, Vose, Sandifer, Murphy & Lee, Arthur J. Hazarabedian and James Duff Murphy for Plaintiffs and Appellants.
James S. Burling, Stephen E. Abraham, Gordon & Rees, Douglas B. Harvey, David Collins, Kronick, Moskovitz, Tiedemann & Girard, Lloyd Hinkleman, Desmond, Miller & Desmond, Richard F. Desmond, Gary Livaich, Dopkins & Rolfe and William E. Dopkins III as Amici Curiae on behalf of Plaintiffs and Appellants.
__________________________________________________________________________________
Attorneys for Respondent:
Redwine and Sherrill, Justin M. McCarthy, Gerald D. Shoaf, Steven B. Abbott and Seth C. Thomspon for Defendant and Respondent.
Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Jan S. Stevens, Assistant Attorney General, Richard M. Frank and David DeAlba, Deputy Attorneys General, Martha H. Lennihan, Baker, Manock & Jensen, Douglas B. Jensen, John L. B. Smith, William S. Barcus, Shute, Mihaly & Weinberger, Ellen J. Garber, Susannah T. French, Downey, Brand, Seymour & Rohwer, Thomas N. Cooper, Gordon B. Burns, Meyers, Nave, Riback, Silber & Wilson, Andrea J. Saltzman, David W. Skinner, Steven R. Meyers, Lepper, Schaefer & Harrrington and Gary M. Lepper as Amici Curiae on behalf of Defendant and Respondent.
*Pursuant to California Constitution article VI, section 21.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Arthur J. Hazarabedian
Oliver, Vose, Sandifer, Murphy & Lee
281 S. Figueroa Street, Second Floor
Los Angeles, CA 90012
(213) 621-2000
David Collins
Gordon & Rees
275 Battery Street, 20th Floor
San Francisco, CA 94111
(415) 986-5900
Steven B. Abbott
Redwine and Sherrill
1950 Market Street
Riverside, CA 92501
(909) 684-2520
David DeAlba
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 445-8178

Caltrans And County Of San Luis Obispo using State HWY 1 for Storm Water Retention.

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

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