Second Appellate Court--Bookout v. State of California

Associate Justice Carlos R. Moreno, Associate Justice Joyce L. Kennard, Associate Justice Kathryn Mickle Werdegar, Chief Justice Ronald M. George, Associate Justice Ming W. Chin, Associate Justice Marvin R. Baxter, and Associate Justice Carol A. Corrigan. The Second Appellate Court has made Judge Martin J. Tangemans August 5, 2008 inverse condemnation Decision California Case Law affecting public health and safety! 
Chief Justice Ronald M. George and Associate Justice Marvin R. Baxter
PLEASE REVIEW IN THE VIDEO ABOVE OF CALTRANS AT 3:AM GRADING AND SHOVELING CONTAMINATED STORM DEBRIS INTO THE OCEANO STORM WATER DRAINAGE CHANNEL!  -----------------------
THE REGIONAL WATER QUALITY CONTROL BOARD HAS WARNED CALTRANS ABOUT THEIR ACTIONS!     Caltrans Caught by RWQCB-Pete Riegelhuth pdf...


From: Bill Bookout [mailto:Pismobeachdiveshop@charter.net]
Sent: Wednesday, October 27, 2010 5:11 PM
To: 'Wilson, Nick - SLO'
Cc: 'rmiller@newtimesslo.com'; 'velie@coastnews.com'; 'sduerr@thetribunenews.com'; 'bray@thetribunenews.com'; 'bmcewen@fresnobee.com'; 'Greg Connell'; 'jwasserman@sacbee.com'; 'jboren@fresnobee.com'; 'kachadjian@co.slo.ca.us'; 'Lt.governor@ltgov.ca.gov'; 'mmosley@sezalaw.com'; 'news@ksby.com'; 'news12@kcoy.com'; 'plloyd@fresnobee.com'; 'Weber, Tad - SLO'; 'tbolton@santamariatimes.com'; 'eslater@timespressrecorder.com'; 'acharlton@timespressrecorder.com'; 'John Belsher'; 'Senator.Aanestad@senate.ca.gov'; 'Senator.Alquist@senate.ca.gov'; 'Senator.Ashburn@senate.ca.gov'; 'Senator.Blakeslee@senate.ca.gov'; 'Senator.Calderon@senate.ca.gov'; 'Senator.Cogdill@senate.ca.gov'; 'Senator.Corbett@senate.ca.gov'; 'Senator.Correa@senate.ca.gov'; 'Senator.Denham@senate.ca.gov'; 'Senator.DeSaulnier@senate.ca.gov'; 'Senator.Ducheny@senate.ca.gov'; 'Senator.Dutton@senate.ca.gov'; 'Senator.Emmerson@senate.ca.gov'; 'Senator.Florez@senate.ca.gov'; 'Senator.Hancock@senate.ca.gov'; 'Senator.Harman@senate.ca.gov'; 'Senator.Hollingsworth@senate.ca.gov'; 'Senator.Huff@senate.ca.gov'; 'Senator.Kehoe@senate.ca.gov'; 'Senator.Leno@senate.ca.gov'; 'Senator.Liu@senate.ca.gov'; 'Senator.Lowenthal@senate.ca.gov'; 'Senator.McLeod@senate.ca.gov'; 'Senator.Oropeza@senate.ca.gov'; 'Senator.Padilla@senate.ca.gov'; 'Senator.Pavley@senate.ca.gov'; 'Senator.Romero@senate.ca.gov'; 'Senator.Runner@senate.ca.gov'; 'Senator.Simitian@senate.ca.gov'; 'Senator.Steinberg@senate.ca.gov'; 'Senator.Strickland@senate.ca.gov'; 'Senator.Walters@senate.ca.gov'; 'Senator.Wiggins@senate.ca.gov'; 'Senator.Wolk@senate.ca.gov'; 'Senator.Wright@senate.ca.gov'; 'Senator.Wyland@senate.ca.gov'; 'Senator.Yee@senate.ca.gov'
Subject: RE:

 

October 27, 2010

 

Nick Wilson,

 

Please re-view my web-site www.secondappellatecourt.com as I have attached a pdf file showing what the undisputed facts, presented to Judge Martin J. Tangeman, the Second Appellate Court and the California Supreme Court where!  Freeing Pismo Oceano Vegetable Exchange of any drainage responsibility for Caltrans actions and signed contracts with the Oceano Community Service District!  Supervisor Katcho Achadjian and Senator Abel Maldonado are aware of Caltrans actions as seen in their letters attached to this website pdf!

 

The California Supreme Court has denied my Appeal today and I have posted the videos of Caltrans shoveling and grading debris into the Oceano Community’s storm water drainage channel as the Oceano Community Service District is now allowed by the California Supreme Court to daily discharge debris and Well water into a California Storm Water Drainage Channel!  Please review these, actions also under the Supreme Court Justices names on YOUTUBE!
Exhibits Recieved by Judge Martin J. Tangeman showing no Date of Stabilization and that Pismo Oceano Vegetable Exchange is not responsible for the flooding of State Highway 1!  OCSD 1983 Letter-1985 Construction--Caltrans $5,000.00 Signed Agreement--Caltrans $42,295.00 fix! Department of Transpertation reneging on Signed 1985 Contracts-Abel Maldonado-Katcho Achadjian--Sam Blakeslee and Governor Arnold Schwarzeneggers Letters...     McClatchy News-Nick Wilson--Cal Coast News-Karin Velie--New Times Ryan Miller National News Story for being a Government Whistle Blower!   NBC News, ABC News, Fox News, CBS News








Supreme Court

 

Court data last updated: 10/27/2010 04:05 PM

Case Summary    Docket    Briefs
Disposition    Parties and Attorneys

Disposition

BOOKOUT v. STATE OF CALIFORNIA
Case Number S185267

Only the following dispositions are displayed below: Orders Denying Petitions, Orders Granting Rehearing and Opinions. Go to the Docket Entries screen for information regarding orders granting review.

Case Citation: none

Date

Description

10/27/2010

Petition and Depub. request(s) denied

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Exhibit # 1756  Are three letters written by the Oceano Community Service District April 21, 1983 to San Luis Obispo County John Wallace.  Pismo Oceano Vegetable Exchange, Dennis Donovan.  Southern Pacific Land Company, John Sherman, explaining the OCSD Construction process of their well # 8 and their intended use of the storm water drainage channel.

Exhibit # 1730 April 29, 1983 Letter response from Southern Pacific Railroad to the Oceano Community Service District informing OCSD that the intended use of the storm water drainage channel is for “storm water runoff”

Exhibit # 1773 January 10, 1985 Department of Transportation Memorandum Document showing drainage concerns of Caltrans going back to 1974.  A $5,00.00 Contributions from the Oceano Community Service District for their new Fire Station Construction drainage!

Exhibit # 1757 March 13, 1985 The Oceano Community Service District signed contract agreement with Caltrans allowing for the OCSD new Construction/Fire Station drainage to enter State Highway 1 and go into the Caltrans drainage inlet leading into Railroad culvert!  March 14, 1985 Oceano Community Service District minute order regarding Caltrans agreement with OCSD # 05A239 signed by Gina Davis Deputy Secretary to the Board.  March 13, 1985 OCSD meeting minutes with John Wallace showing the $5,000.0 OCSD contribution to Caltrans drainage of State Highway 1 per signed Caltrans OCSD agreement!

Exhibit # 1875 March 27, 1985 County of San Luis Obispo letter requiring requiring Pismo Oceano Vegetable Exchange to raise the Outlet of the storm water retention pond on Southern Pacific Railroad property.  May 22, 1985 County of San Luis Obispo Building Permits for POVE Construction after 1977 Construction.  Included is a OCSD letter to the County Of San Luis Obispo December 13, 1984 and a letter from the Counties Chief Building inspector John P. Little dated December 26, 1984.

Exhibit # 1774 April 4, 1985 Department of Transportation (Caltrans) Fully Executed Copy of Cooperative Agreement between the State and the Oceano Community Service District, addressed to then General Manager Richard C. Hill.

Exhibit # 1758 September 11, 1985 Are OCSD meeting minutes showing drainage changes to the Oceano Communities storm water drainage system with the discharge of Well # 8 water onto County of San Luis Obispo property.  OCSD mentions prior recommendations from Montgomery Engineers’ before John Wallace became the OCSD District Engineer after leaving the County of San Luis Obispo.

Exhibit # 1759 February 27, 1986 Letter by John L. Wallace Consulting Civil Engineers to the County of San Luis Obispo Glenn Priddy for drainage coming off of State Highway 1 onto County of San Luis Obispo Airport “Pacific Place” property going into the Oceano Lagoon and then into the Pacific Ocean.  “Culvert that crosses the Railroad tracks on front Street near the railroad station”   OCSD new at this time that State Highway 1 Drainage was for storm drainage, rather then their Well # 8 water.

Exhibit # 1790 September 25, 1987 Letter By Gary Simms, from the Department of Transportation to the County of San Luis Obispo Glenn Priddy, showing that the OCSD and State drainage at this time could be fixed for only $43,295.00.  The County of San Luis Obispo portion of this would be $9,310.00 and the Railroad/POVE portion would be $15,070.00.  The Department of Transportation does not mention the Railroad or County  in their 1985 $5,000.00 agreements with the Oceano Community.

Exhibit # 1791 October 15, 1987 from OCSD to the Department of Transportation per their 1985 $5,000.00 signed agreement with Caltrans taking liability for storm water drainage!

Exhibit # 1792 November 18, 1987 District Agreement No. 05A239 A/1 from the Department of Transportation.  November 3, 1987 hand written document attached

Exhibit # 1793 May 18, 1988 letter to the Department of Transportation from OCSD, Plans for Subject drainage project from 1985 agreement between Caltrans and OCSD.

Exhibit # 1794 November 30, 1988 is Fred Brebs of the Department of Transportation maintenance log for cleaning cleaning

Exhibits # 1768 Starting in November 30, 2001 are the OCSD Phil Davis daily logs starting with the OCSD broken Well # 8 Pipe on County and Railroad property in 2001.  December 20, 2002 Log, problem as seen in exhibit # 579 withheld from discovery by the County of San Luis Obispo.  OCSD abated initial problem with OCSD pipe in culvert plugging debris at entrance to the culvert.  Next OCSD problem February 9, 2004 having OCSD employee clean out drainage ditch from debris in ditch.  May 19, 2004 OCSD Ditch Cleaning.  October 26, 2004 Major flood from debris inside Culvert, that OCSD fixed with sewer cleaner jet.  November 4, 2004 OCSD cleaned ditch.  December 6, 2004 OCSD pulled leaves and sticks out of the south end of the culvert.  December 9, 2004 OCSD finds RR culvert 1/3 plugged.  December 10, 2004 OCSD report for culvert cleaning by OCSD after meeting with County Road Department.  January 3, 2005  OCSD deals with flooded State Highway.  March 23, 2005 OCSD cleans culvert.  Tuesday December 18, 2007 OCSD meets with Attorney to talk about culvert before flooding later in the day.  Friday January 4, 2008 OCSD Well # 8 has another tree brake their blow-off line in the culvert.  Caltrans asks OCSD to pump the POVE pond.  January 7, 2008 OCSD repairs their Well # 8 blow off line discharging still into the Railroads culvert.

Exhibit # 1789 September 15, 1987 Judge Martin J. Tangeman would not allow into evidence.  This document shows a conflict between the County of San Luis Obispo, Caltrans and the Oceano Community Service District after the April 4, 1985 Department of Transportation signed agreement taking the OCSD storm water.

Exhibit # 579 that the County of San Luis Obispo withheld from discovery showing a problems with drainage observed with Caltrans in 2001 raising State Highway 1.  One photo provided out of three showing a Union Pacific Railroad Train Wreck and a PVC pipe inside the storm water drainage culvert!

Exhibit # 9 filed July 24, 2008 after trial showing complaint in exhibit # 579 withheld from Discovery by the County of San Luis Obispo involving Gregg Albright of Caltrans and San Luis Obispo County Supervisor Katch Achadjian!

The County of San Luis Obispo September 20, 2010 in their "Answer To Petition For Review" by Thomas L. Riordon, SBN 104827 on Page 13 ignores evidence presented to Judge Tangeman showing that the County Required POVE to raise the outlet of the retention pond used by Caltrans, County and OCSD!   The County on P. 12 ignores photo evidence showing the POVE/Railroad pond in 1958 and 1967 instead of the County's statement to the California Supreme Court Justices.  "The trial court heard and weighed all testomony and concluded that the sole legal cause of the flooding was the poorly designed junction box and drainage pond built on Exchange property during the 1970's. (AA 13:345-346)"   How is it that the trial court did not have to pay attention to the Evidence!

Associate Justice Carlos R. Moreno Associate Justice Carlos R. Moreno video viewed by Judge Martin J. Tangeman 1 
The County of San Luis Obispo acknowledges "No Date Of Stabilization" the construction permitted in the drainage channel by the County, allowing the OCSD Well # 8 discharge Pipe installed into this drainage culvert!  (Per Davis Testimony!)  The County States:  "Davis's daily log for that year makes referance to a meeting with Bookout on December 20, 2002.  (RT Vol. 2:402) Bookout took a picture of the pipe going into the drainage channel in the aftermath of a rain event in 2002."  The County States:  "The picture included a District employee. (RT Vol. 2:403) This photo shows No Date of Stabilization and that OCSD and Caltrans had not properly corrected the complaint in Exhibit # 579!  Thus showing that the partial  use of Exhibit # 579 was a predjudicial Error in now California Case Law "Bookout v. State of California!"

How does Exhibits # 1278, 1337 and 1338 talked about by Judge Teresa Estrada-Mullaney and Judge Martin J.Tangeman make this flooding of State Highway 1 the fault of POVE 100%?  How is this flooding of our California State Highway Stable and Static since the late 1970's?  Both Judge Tangeman and Judge Mullaney acknowledge this OCSD Well # 8 debris pipe constructed inside this storm water drainage channel showing no "Date Of Stabilization" per exhibits #1768, 579 and 1756!  Judge Teresa Estrada-Mullaney.pdf...    

Thomas L. Riordon, SBN 104827 states on Page 8 in his  "Answer To Petition For Review" "The five year statute of limitations for inverse condemnation applies only where a government enity has effected a "total taking" of all or some portion of the subject property through physical entry or exercise of domain or control."  Exhibits # 579, 1768, 1278, 1337 and 1338 shows the OCSD exercise of domain and control alond with Caltrans caught shoveling and grading debris into this storm water drainage channel!  Caltrans Caught by RWQCB-Pete Riegelhuth pdf..

Judge Teresa Estrada-Mullaney States P. 15 in her February 2, 2009 Judgment "There was no showing Union's operation of Well NO. 8 contributed to the blockage."  Photo Exhibit # 579 Shows the OCSD pipe blockage on Union Pacific Railroads property! Judge Teresa Estrada-Mullaney.pdf...    HELLO!  Photo Evidence/Exhibits presented to Teresa Estrada-Mullaney and Judge Martin J. Tangeman 1278-1337-1338 pdf...

The Second Appellate Court Justices--Arthur Gilbert, Steven Z. Perren,  and Kenneth R. Yegan ignore in their July 28, 2010 published California Case Law decision Bookout v. State of California--- Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. ”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 Second Appellate Court Justices--Arthur Gilbert, Steven Z. Perren,  and Kenneth R. Yegan Acknowledge this OCSD/Caltrans Well # 8 use inside this storm water drainage channel!
  NPDES - California Fish And Game Video --

 

How does Exhibits # 1278, 1337 and 1338 talked about by Judge Teresa Estrada-Mullaney and Judge Martin J.Tangeman make this flooding of State Highway 1 the fault of POVE 100%?  How is this flooding of our California State Highway Stable and Static since the late 1970's? 

The Second Appellate Court Justices--Steven Z. Perren, Arthur Gilbert and Kenneth R. Yegan ignore Caltrans ownership of the first four feet of the storm water drainage inlet and the OCSD ownership and control of their Well # 8 pipe inside this storm water drainage channel exhibit #1756!  The Appellate Court ignores exhibit # 1768 presented to Justices--Kenneth R. Yegan, Arthur Gilbert and Steven Z. Perren showing OCSD maintenance and drainage changes in December 2002 changeing the Statute of Limitations and date of Stabilization!


Associate Justice Carlos R. Moreno, Associate Justice Joyce L. Kennard, Associate Justice Kathryn Mickle Werdegar, Chief Justice Ronald M. George, Associate Justice Ming W. Chin, Associate Justice Marvin R. Baxter, and Associate Justice Carol A. Corrigan. 
The
Second Appellate Court Justices--Steven Z. Perren, Arthur Gilbert and Kenneth R. Yegan are fully aware of Judge Martin J. Tangemans statements in his August 5, 2008 inverse condemnation decision on P. 7 per photo exhibits # 1278-1337 and 1338 of this OCSD pipe directly inside the Railroad Culvert!  They now allow Government to block and dam storm water drainages systems as seen in these photos that Judge Martin J. Tangeman talks about!   Photo Evidence/Exhibits presented to Judge Martin J. Tangeman 1278-1337-1338 pdf...


The Second Appellate Courts July 28, 2010 published California Case Law decision compleatly ignores Statute Of Limitations changes as seen in exhibit # 579 "Did you observe likely causes of the flooding, such as clogged culverts under roads, catch basins filled with dirt, no place for water to flow?"  On Exhibit # 579 withheld from discovery by the County Of San Luis Obispo it was stated--- "Hwy 1 Not Adaquate drainage on Hwy 1 under the train track & Overlay from Caltrans in 2001 on Hwy 1" 

The Second Appellate Court Justice--Steven Z. Perren---Kenneth R. Yegan---Arthar Gilbert---Paul Coffee would not talk about these photos that went with exhibit # 579 that Superior Court Judge Martin J. Tangeman did not feel were needed as evidence as he and Union Pacific Railroad stated "“And for the purpose of the exhibits we don’t need the photographs.” The Court States: “All Right”   In regards to these photos the County of San Luis Obispo asks on their Community Drainage and Flood Control Study Questionnaire---"Are there Any other comments regarding drainage and flooding that you would like to make?"  It  was weitten "Yes" showing these photos that Judge Martin J. Tangeman told the Railroad they did not have to include with exhibit # 579.  This prejudicial error shows Causation and no Date of Stabilization!   County Discovery Abuse per the Baughman Property from State Highway 1 PDF File...  

    
Associate Justice Carlos R. Moreno, Associate Justice Joyce L. Kennard, Associate Justice Kathryn Mickle Werdegar, Chief Justice Ronald M. George, Associate Justice Ming W. Chin, Associate Justice Marvin R. Baxter, and Associate Justice Carol A. CorriganThe one Photo that Union Pacific RailRoad did Include in Exhibit # 579 shows that their is no Stabilization in this drainage system as stated on this photo exhibit " Pipeline in rail road culvert obstructin flow (Culvert Abuse) 13th Street & Highway 1 Mr. Bookout"  Exhibt # 1768 and 1756 backs up this statement showing no Date Of Stabilization with this OCSD drainage change since 1977!County Discovery Abuse per the Baughman Property from State Highway 1 PDF File...  

Honorable California Supreme Court Justices, Associate Justice Carlos R. Moreno, Associate Justice Joyce L. Kennard, Associate Justice Kathryn Mickle Werdegar, Chief Justice Ronald M. George, Associate Justice Ming W. Chin, Associate Justice Marvin R. Baxter, and Associate Justice Carol A. CorriganGovernor Arnold Schwarzenegger, Lieutenant Governor, Abel Maldonado and California State Senator Sam Blakslee
                         Lieutenant Governor, Abel Maldonado stated in a letter May 12, 2009  
      "I hope that you continue to seek legal counsel and that this very difficult situation will be resolved soon."  Lieutenant Governor, Abel Maldonado has seen these Caltrans documents Cal_Trans_Documents.pdf

  Videos seen by the Second Appellate Court of California (Steven Z. Perren, Arthur Gilbert and Kenneth R. Yegan) showing Caltrans Shoveling and Grading Contaminated debris into a storm water drainage system, over and over!

Lieutenant Governor, Abel Maldonado and Senator Sam Blakeslee, are aware of the County Of San Luis Obispo letters in this pdf file showing the-- 

County of San Luis Obispo--Trying to Make A Deal and their December 18, 2006 letter calling this flooding a "potentially dangerious situation"  pdf 

The Second Appellate Court Justices--Steven Z. Perren, Arthur Gilbert and Kenneth R. Yegan State P. 2 of Their published California Case law Decision: "The Oceano Community Services District (District) owns a water well. From time to time, the well discharges water into the drainage channel that leads to the culvert under the rail bed."  They ignore exhibit #579, 1756 and #1768 showing Judge Martin J. Tangeman to be wrong!  Justices--Steven Z. Perren, Arthur Gilbert and Kenneth R. Yegan allow this type of government use in storm water drainage channels as also seen in photo exhibits #1278, 1337, and 1338 that Judge Martin J. Tangeman uses on P. 7 of his August 5, 2008 inverse condemnation decision!   Notice OCSD pipe in photos below! 
   NPDES - California Fish And Game Video --
Associate Justice Carlos R. Moreno, Associate Justice Joyce L. Kennard, Associate Justice Kathryn Mickle Werdegar, Chief Justice Ronald M. George, Associate Justice Ming W. Chin, Associate Justice Marvin R. Baxter, and Associate Justice Carol A. CorriganThe Second Appellate Court Justices--Steven Z. Perren, Arthur Gilbert and Kenneth R. Yegan have seen this Exhibit # 579 photo below withheld from discovery by the County of San Luis Obispo allowing government use of this drainage system for discharge of debris and well Water!  This has affected Judge Teresa Estrada-Mullaney and Judge Martin J. Tangeman's Inverse Condemnation Decisions!
Judge Teresa Estrada-Mullaney States P. 15 in her February 2, 2009 Judgment "There was no showing Union's operation of Well NO. 8 contributed to the blockage."  Exhibit # 579 Shows the OCSD pipe blockage on Union Pacific Railroads property! Judge Teresa Estrada-Mullaney.pdf...   
 

Photo that RailRoad and County of San Luis Obispo-did provide with exhibit # 579 to Judge Tangeman and Court; stating drainage concern---"Pipeline in rail road culvert obstructing flow (Culvert Abuse) 13th Street & Highway 1 Mr. Bill Bookout"  The Second Appellate Court Justices--Steven Z. Perren, Arthur Gilbert and Kenneth R. Yegan believe in their July 28, 2010 California Case law decision Bookout v. State of California that government has a legal right to block drainage systems like this!

The Second
Appellate Court Justices--Steven Z. Perren, Arthur Gilbert and Kenneth R. Yegan do not mention--

Testimony of Caltrans in front of Judge Martin J. Tangeman- P. 1506 of the Court Transcript of Caltrans Supervisor Fred Brebes before their actions above!  Mr. Brebes States:  "Question: And did -- And did during this period of time, do you recall your maintenance crews working within the channel that leads from Highway 1 off of 13th Street?  Answer: Yes."  P. 1508 By Mr. Belsher:  So did your crews engage in this practice of using a loader to clean the channel that's depicted in that photograph, on more then one occasion?  Answer: Yeah -- Yes, I Would say Yes

California Supreme Court--Inverse Condemnation

Associate Justice Carlos R. Moreno, Associate Justice Joyce L. Kennard, Associate Justice Kathryn Mickle Werdegar, Chief Justice Ronald M. George, Associate Justice Ming W. Chin, Associate Justice Marvin R. Baxter, and Associate Justice Carol A. Corrigan.  The Second Appellate Court Justices--Steven Z. Perren, Arthur Gilbert and Kenneth R. Yegan do not view the 500 photos and videos presented to them and Judge Martin J. Tangeman of Caltrans raising State Highway 1 and then grading and shoveling debris and contamination into the Oceano storm water drainage system, while the Oceano Community Service District dredges 2500 gallons of debris and well water into this system daily as a cause of the flooding of our State Highway 1!  Justices--Steven Z. Perren, Arthur Gilbert and Kenneth R. Yegan State:

"Bookout points to no findings of fact in his favor. Instead, he relies on over 500 photographs and videos showing the flooding, several hundred documents which he claims show each defendant exercised dominion and control over the drainage facilities, and the testimony of his expert engineer, Keith Crow. He believes the evidence against the defendants was overwhelming.

Bookout claims the evidence is credible because it is uncontradicted. He cites Joseph v. Drew (1950) 36 Cal.2d 575, 579, for the proposition that uncontradicted testimony of a witness may not be disregarded, but should be accepted as proof of the fact to which the witness testified. Indeed, there are no doubt cases where the uncontradicted testimony of a witness is so credible that no reasonable trier of fact could reject it. But this is not such a case.
Here there is an obvious cause of the flooding. The Exchange modified the drainage by constructing a junction box and pipeline that redirected the flow of water by 90 degrees." 

 
Please review the video evidence and photos below, showing that the "Exchange" is not responsible for the flooding of State Highway 1!

The County of San Luis Obispo in their "Answer To Petition For Review" by Thomas L. Riordon, SBN 104827 shows the California Supreme Court why this review is necessary as the County of San Luis Obispo explains on P. 5 "The Oceano Community Service District (District) owns a water well.  From time to time, the well discharges water into the drainage channel that leads to the culvert under the rail bed."  (RT Vol. 5:1265-1266)"  The County, Thomas L. Riordon States per exhibit # 1768 P. 5 regarding the OCSD employee photo below showing "No Date of Stabilization.  "Davis's daily log for that year makes reference to a meeting with Bookout on December 20, 2002.  (RT Vol. 2:402) Bookout took a pictureof the pipe going into the drainage channel in the after math of a rain event in 2002.  The picture included a District employee. (RT Vol. 2:403
Associate Justice Carlos R. Moreno Associate Justice Carlos R. Moreno video viewed by Judge Martin J. Tangeman 1 
PLEASE REVIEW THE VIDEOS PRESENTED TO JUDGE MARTIN J. TANGEMAN OF OCSD DISCHARGEING FROM THEIR WELL # 8 PER EXHIBITS # 1768 AND # 579!   THIS ACTION GOES AGAINST RECENT CALIFORNIA CASE LAW "SKOUMBAS V. CITY OF ORINDA" 
Associate Justice Joyce L. Kennard Associate Justice Joyce L. Kennard  1
The County of San Luis Obispo acknowledges "No Date Of Stabilization" the construction permitted in the drainage channel by the County, allowing the OCSD Well # 8 discharge Pipe installed into this drainage culvert!  (Per Davis Testimony!)  The County States:  "Davis's daily log for that year makes referance to a meeting with Bookout on December 20, 2002.  (RT Vol. 2:402) Bookout took a picture of the pipe going into the drainage channel in the aftermath of a rain event in 2002."  The County States:  "The picture included a District employee. (RT Vol. 2:403) This photo shows No Date of Stabilization and that OCSD and Caltrans had not properly corrected the complaint in Exhibit # 579!  Thus showing that the partial  use of Exhibit # 579 was a predjudicial Error in now California Case Law "Bookout v. State of California!"


 Chief Justice Ronald M. George-Caltrans and County showing that the flooding can be abated! 
The County LIES about Testomony by Dan Sutton from POVE as Dan had stated  02-03 NOT 2000!  The County mentions the Davis daily logs(exhibit #1768) that shows No Date of Stabilization!

Chief Justice Ronald M. George and Associate Justice Marvin R. Baxter
PLEASE REVIEW THE VIDEO PRESENTED TO JUDGE MARTIN J. TANGEMAN OF OCSD DISCHARGE FROM WELL # 8 PER EXHIBITS # 1768 AND # 579!   THIS ACTION GOES AGAINST RECENT CALIFORNIA CASE LAW "SKOUMBAS V. CITY OF ORINDA" 
      Associate Justice Ming W. Chin  The Oceano Community Service District photos of their use of the storm water drainage channel as presented to Judge Martin J. Tangeman! 

      Associate Justice Carol A. Corrigan
      Caltrans Raising State Highway 1 a foot per their testimony in front of Judge Martin J. Tangeman!

        Associate Justice Marvin R. Baxter
        The County has shown, that the County, OCSD and Caltrans have "EXERCISED DOMINION AND CONTROL" over this storm water drainage channel!

          Associate Justice Joyce L. Kennard
        THE SECOND APPELLATE COURT OF APPEAL OPINION IS INCONSISTENT WITH EXISTING CALIFORNIA PRECEDENT AND DOES REQUIRE A NEW TRIAL!

        The Second Appellate Court Justices--Steven Z. Perren, Arthur Gilbert and Kenneth R. Yegan are fully aware of Judge Martin J. Tangemans statements in his August 5, 2008 inverse condemnation decision on P. 7 per photo exhibits # 1278-1337 and 1338 of this OCSD pipe directly inside the Railroad Culvert!  They now allow Government to block and dam storm water drainages systems as seen in these photos!   Photo Evidence/Exhibits presented to Judge Martin J. Tangeman 1278-1337-1338 pdf...

        The Second Appellate Court is mistaken on P. 8 of their July 28, 2010 published California Case Law decision as testimony presented to the Second Appellate Court from Phil Davis of the Oceano Community Service District and exhibit 1768 are facts that have been seen and mentioned by the Second Appellate Court! This evidence is overwhelming as seen above and below! These drainage changesare made after the Appellate Courts P. 8 100% Blame of the Pismo Oceano Vegetable Exchange! 

        Associate Justice Carlos R. Moreno, Associate Justice Joyce L. Kennard, Associate Justice Kathryn Mickle Werdegar, Chief Justice Ronald M. George, Associate Justice Ming W. Chin, Associate Justice Marvin R. Baxter, and Associate Justice Carol A. CorriganOCSD stated to Judge Tangeman P. 383 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” –Question. How much water is discharged out of the pipe each time that you do the procedure that you described?  Answer. “Approximately 2,500 Gallons per minute?” Question. And the rate at which this water is discharged is somewhere around 1,300 gallons per minute?  Answer. “Well, it starts out fast and gradually slow down until it stops. And when it stops, all the water is going into the system.”P. 385 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."  P.386 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 did you oversee an extension of the pipe into the culvert that’s depicted there?  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 1338 is another example of the pipe extended into the culvert. Thirteen thirty nine, is this an OCSD employee? Answer. “I believe it is.”  Question: And I note that the pipe now is cut back from the entrance to culvert?  Answer: “That’s correct.”  Question: And is that an action which you and your staff took in 2002?Answer. “YES

        The Second Appellate Court Justices--Steven Z. Perren, Arthur Gilbert and Kenneth R. Yegan have seen the Caltrans photo evidence from this 1953 Caltrans photo before the County and Caltrans changed the drainage at Highway 1 13th and Paso Robles streets!Caltrans 1953 Aerial Photo Knowlodge of County/Caltrans drainage changes to our Pacific Ocean! pdf...  

         
        The Second Appellate Court has seen this Caltrans August 11, 1967 photo showing the Railroad house's have been removed and that the drainage channel is different then today.  The Second Appellate Court is mistaken in their statement   "The Exchange modified the drainage by constructing a junction box and pipeline that redirected the flow of water by 90 degrees."
        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
         

        Associate Justice Carlos R. Moreno, Associate Justice Joyce L. Kennard, Associate Justice Kathryn Mickle Werdegar, Chief Justice Ronald M. George, Associate Justice Ming W. Chin, Associate Justice Marvin R. Baxter, and Associate Justice Carol A. CorriganIt is unfortunate that San Luis Obispo Superior Court Judge Martin J. Tangeman would not allow in as evidence Exhibit 1789.  This evidence tied in with the photos below, that went with exhibit # 579 that Superior Court Judge Martin J. Tangeman chose also to not allow in as evidence showing that the flooding of our State Highway could be abated  for only $43,295.00 as seen in exhibit # 1790.   Caltrans actions as seen in these photos raising State Highway 1 a foot has put every California resident in danger with this new California Case Law decision July 28, 2010!
        Bookout v. State Of California K...     Bookout v. State of California Supreme Court Appeal...   
         
        Honorable California Supreme Court Justices,  Associate Justice Carlos R. Moreno, Associate Justice Joyce L. Kennard, Associate Justice Kathryn Mickle Werdegar, Chief Justice Ronald M. George, Associate Justice Ming W. Chin, Associate Justice Marvin R. Baxter, and Associate Justice Carol A. Corrigan. Governor Arnold Schwarzenegger, Lieutenant Governor, Abel Maldonado and California State Senator Sam Blakslee Exhibit # 1789 talks about what the photos show in exhibit # 579 that Judge Martin J. Tangeman would not allow into evidence!  Why is Caltrans raising our State Highway as seen in these photos knowing of prior drainage Problems?  Please inform each California Senator and State Assembly Member of San Luis Obispo Superior Court Judge Martin J. Tangeman's actions!

        Exhibit # 1789 States 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.pdf 

        Associate Justice Carlos R. Moreno, Associate Justice Joyce L. Kennard, Associate Justice Kathryn Mickle Werdegar, Chief Justice Ronald M. George, Associate Justice Ming W. Chin, Associate Justice Marvin R. Baxter, and Associate Justice Carol A. CorriganPlease review the following websites:
        www.californiagovernorjerrybrown.com
        www.lieutenantgovernorgavinnewsom.com
        www.senatorsamblakeslee.com 
        www.assemblymankatchoachadjian.com
        www.governorarnoldschwarzenegger.net  
        www.inversecondemnation.net         
        www.californiasupremecourt.info
        www.californiasupremecourts.com   
        www.secondappellatecourt.com
        www.oceanonursery.com                   
        www.supremecourtofcalifornia.com
        www.supremecourtcalifornia.com      
        www.supremecourtjustices.net  
        www.heritageoaksbankquestions.com     
        www.unitedstatessupremecourt.net 
        www.governormegwhitman.co   
        www.unitedstatessupremcourt.com 
        www.governorbrown.net     
        www.lieutenantgovernorabelmaldonado.com           
        www.governorjerrybrown.net 
        www.governormegwhitmancalifornia.com   
        www.californiasupremecourt.co

        This is the Oceano Community Service District opinion of the evidence presented to Judge Martin J. Tangeman as seen in the websites above!Adam M. Daner Supreme Court Answer To Petition For Review Case No. S1852767 Case No. B214906 pdf...   

        I would like to thank, Mark L, Mosley of the law Firm
        Seiler Epstein Ziegler & Applegate, LLP for their Amicus Brief Letter as all California Residents are affected by the Second Appellate Courts published California Case Law Decision in Bookout v. State Of California July 28, 2010!   Amicus Letter in Bookout v. State Of California to the California Supreme Court September 8, 2010 pdf... 


        Mr. Derek S. Van Hoften, representing Caltrans misleads the California Supreme Court in his Opposition Depublication request from the Second Appellate Court.  Mr. Van Hoften, ignores the Amicus Brief showing Baker v. Glendale-Pasadena Airport Authority (1985)   He States: "(1) the three-year statute of limitations applies to bar the action because the flooding allegedly caused by the public entities did not constitute control or possession of plaintiff's property,"  How is it that Caltrans can raise a State Highway and not have to address State drainage per new California Case Law "Bookout v. State of California"?

        Caltrans Answer to Petition For Review September 15, 2010 ignoring Baker v. Glendale-Pasadena Airport Authority (1985)_...

        Mr. Van Hoften, States:
        "Second, Plaintiff asks whether public agencies should be allowed to use and maintain a public improvement for their surface water discharge and drainage systems in a manner which creates flooding of nearby neighboring private property.  (Pet. at 1., 7.)  However, the Court of Appeal did not find that the agencies in this case had used or maintained a public improvement: moreover, the plain holding of the Court of Appeal's decision was that the public agencies did not cause the flooding of Plaintiff's property." 

        Mr. Van Hoften ignores the Testimony of Caltrans in front of Judge Martin J. Tangeman- P. 1506 of the Court Transcript of Caltrans Supervisor Fred Brebes.  Mr. Brebes States:  "Question: And did -- And did during this period of time, do you recall your maintenance crews working within the channel that leads from Highway 1 off of 13th Street?  Answer: Yes."  P. 1508 By Mr. Belsher:  So did your crews engage in this practice of using a loader to clean the channel that's depicted in that photograph, on more then one occasion?  Answer: Yeah -- Yes, I Would say Yes." Question: So was this part of the maintenance that you oversaw as Supervisor during those years,  '83 Through '88? Answer: Yes.  Question and did you continue that practice in the years until your retirement in 2002, to your knowledge?  Answer: I can't say.  Question: Well, we saw the photograph of 2000, for example. Answer:  UH-HUH Question: That's the one you're looking at.  You were a Superintendent at that time; Correct?  Answer: Yes"  P. 1509 By Mr. Belsher: Did you instruct your employees on maintenance activities with respect to the channel that's depicted in 1467?  Answer: YES.--------Question: So up to the years of 1996 when you became Superintendent, did you instruct workers under your supervision to clear the channel?  Answer: YES  Question: And that clearing went how far into the channel, to your recollection?  Answer: Well, in the case, it's probably about as far as that loader went, but that depends.  At certain times, I know that we have gone back to the culvert."  Page 1513 Answer: Um, I didn't know the Railroad --I Don't know the Railroad owns that property but.  Question: You didn't obtain permission from anybody at that point in time in terms of entering--" Answer: For 13th Street?  No."-------------Exhibits in exhibit # 579 withheld from discovery and allowed by Judge Martin J. Tangeman show Mr. Brebes being involved with Fountain Ave Flooding and photos of him raising State Highway 1 a foot in 2000!  These same photos above that San Luis Obispo Superior Court Judge Martin J. Tangeman would not allow into evidence---Show Caltrans abating a flood danger as seen in the photo of the Caltrans loader inside this storm water drainage channel!

         Caltrans Derek S. Van Hoften request for California Case law in Bookout v. State California July 13, 2010 pdf... 


        Mr Derek S. Van Hoften ignores Caltrans Statement to Judge Martin J. Tangeman also seen in exhibit # 579 photos withheld from discovery by the County of San Luis Obispo!  Derek S. Van Hoften states to the Second Appellate Court.  "Here, the opinion demonstrates that relatively consistent and static flooding does not constitute "maintaining possession or control " over the property or any portion of it, so as to trigger application of the five-year limitation."   "While the Court properly applied the existing law in this case, there is no published opinion demonstrating that this rule of law applies in the context of relatively consistent and static flooding where there has been no actual entry or physical construction by the public entity."   

          

        Mr Derek S. Van Hoften of Caltrans states:  "Second, the opinion explains another existing rule of law: where the judgment is against the party who has the burden of proof, it is almost impossible for him to prevail on appeal by arguing the evidence compels a judgment in his favor."  Inverse Condemnation should now be herd by a Jury instead of a Judge with these statements by Caltrans!

         

        Caltrans---Mr. McKinley's statement below showing Caltrans "physical construction by the public entity." changing the drainage stabilization of HWY 1. 13th, and Paso Robles Streets--per exhibit 579 and McKinley testimony shows drainage construction by a public entity "Caltrans"!

        Answer: (P. 643) Yeah, I responded to a communication that our maintenance engineer received from Bill Bookout, that there was ponding, A ponding issue at the corners of 13th and Highway 1 and Paso Robles and Highway 1.  And so it was in response to that communication." Question:  Do you know approximately which side of the State highway this ponding occurred?  Answer: "It was on the East Side". " Page 645 “We reconstructed the pavement, so we put base and we put asphalt down.”  “I believe we put down half a foot of A.C., I believe.
        Question: (P 653 Cross-Examination by Caltrans-Exhibit photos 579)  "And when you--It was your understanding that the reason this job -- You were asked to design this job was because the Plaintiff had complained about ponding on the East Side near his property, of State Route 1? Answer: Correct." --"Objection; Leading" 
        The Court OVERRULED.
          
        Question: (P.. 658) “Mr. Mckinley, in that grinding crown removal project in 2003, do you recollect removing any portions of 13th Street or Paso Robles street?”  Answer:  “That was – Yeah, we went up to do our conforms, yes.”  Question:   Do you know about how far up those streets you went, if you can recollect?”  Answer:  “From the plans, I want – it seems to be around 70 –70 feet, I believe.  Seventy feet.”  Page 659 “We did adjust crowns on adjust crowns on 13th and Paso.

        The Second Appellate Court Justices--Steven Z. Perren, Arthur Gilbert and Kenneth R. Yegan State  ignore testimony from Caltrans--2002-Mr. McKinley " Answer: (P. 643) Yeah, I responded to a communication that our maintenance engineer received from Bill Bookout, that there was ponding, A ponding issue at the corners of 13th and Highway 1 and Paso Robles and Highway 1.  And so it was in response to that communication."----------- ”Bookout argues the trial court erred in receiving documentary evidence that was not produced during discovery. The document is a county 7 drainage study questionnaire returned by Bookout in July 2002. Bookout stated on the questionnaire that the area floods one foot or more once a year and that the flooding has damaged his inventory.
        The County explained that it was unaware of the document at the time of discovery. It said that the questionnaire responses were summarized for inclusion in a drainage study, but they were not filed by name, address or location. The Railroad's counsel happened to find Bookout's response during Crowe's testimony. The County pointed out that Bookout must have been aware of the document because he submitted it to the County. The trial court found the failure to produce the document was not in bad faith, and refused to impose discovery sanctions."

        This pdf file
          County of San Luis Obispo--Trying to Make A Deal in regards to the Evidence  Withheld From Discovery involving their County Insurance. pdf    Shows how our California Court system now works in allowing evidence to be withheld from Discovery. The published California Case law Decision "Bookout v. State of California (2010) changes our Constitution!  Please review the names attached to these County of San Luis Obispo letters showing who was aware of this withholding of evidence!  The February 6, 2007 letter shows the names ( Clayton U. Hall---Jay A. Hieatt---Mark B. Connely---Linda D. Hurst, Stephanie A. Brown, Julie C. Grebel, Molly E. Thurmond, Paul E. Kremer---Written to Mauri McGuire Carl Warren & Company, Rita L. Neal and Debra A. Hossli, Risk Manager!

         

        The Second Appellate Court in their July 28, 2010 published case law decision fail to talk about Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783.  As briefed and used by Superior Court Judge Martin J. Tangeman.  The Appellate Court States:     "Bookout contends the trial court improperly applied a reasonableness test to determine liability. He points out that except for damage caused by public flood control projects, the test in inverse condemnation actions is strict liability. (Citing Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 753-754.)

        But Bookout fails to point to anywhere in the record that the trial court applied the reasonableness test instead of strict liability. In any event, the court's ruling was based on the statute of limitations and failure to prove causation. The results are the same under the reasonableness test or strict liability. The defendants prevail."         

             The Second Appellate Court ignores Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. ”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 Appellate Court ignores Caltrans ownership of the first four feet of the storm water drainage inlet and the OCSD ownership and control of their Well # 8 pipe inside this storm water drainage channel per exhibit # 1278-1337 and 1338 that Judge Martin J. Tangeman talks about on P. 7 of his August 5, 2008 inverse condemnation decision!  The Appellate Court ignores exhibit # 1768 presented to the Second Appellate Court showing OCSD maintenance and drainage changes in December 2002 changeing the Statute of Limitations!  Photo Evidence/Exhibits presented to Judge Martin J. Tangeman 1278-1337-1338 pdf...   

        The Second Appellate Court Justices--Steven Z. Perren, Arthur Gilbert and Kenneth R. Yegan are fully aware of Judge Martin J. Tangemans statements in his August 5, 2008 inverse condemnation decision and the governments use of this storm water drainage system P. 11!  "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."  

        "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."

        The Second Appellate Court Justices--Steven Z. Perren, Arthur Gilbert and Kenneth R. Yegan are fully aware of Judge Martin J. Tangemans statements in his August 5, 2008 inverse condemnation decision on P. 7 per photo exhibits # 1278-1337 and 1338 of this OCSD pipe directly inside the Railroad Culvert!  Photo Evidence/Exhibits presented to Judge Martin J. Tangeman 1278-1337-1338 pdf...

        The Second Appellate Court July 28, 2010 published decision compleatly ignores Statute Of Limitations changes as seen in exhibit # 579 "Did you observe likely causes of the flooding, such as clogged culverts under roads, catch basins filled with dirt, no place for water to flow?"  On Exhibit # 579 withheld from discovery by the County Of San Luis Obispo it was stated--- "Hwy 1 Not Adaquate drainage on Hwy 1 under the train track & Overlay from Caltrans in 2001 on Hwy 1" 

        The Second Appellate Court Justice--Steven Z. Perren---Kenneth R. Yegan---Arthar Gilbert---Paul Coffee would not talk about these photos that went with exhibit # 579 that Superior Court Judge Martin J. Tangeman did not feel were needed as evidence as he and Union Pacific Railroad stated "“And for the purpose of the exhibits we don’t need the photographs.” The Court States: “All Right”   In regards to these photos the County of San Luis Obispo asks on their Community Drainage and Flood Control Study Questionnaire---"Are there Any other comments regarding drainage and flooding that you would like to make?"  It  was weitten "Yes" showing these photos that Judge Martin J. Tangeman told the Railroad they did not have to include with exhibit # 579.  This prejudicial error shows Causation and no Date of Stabilization!   County Discovery Abuse per the Baughman Property from State Highway 1 PDF File...  

            
        The one Photo that Union Pacific RailRoad did Include in Exhibit # 579 shows that their is in Stabilization in this drainage system as stated on this photo exhibit " Pipeline in rail road culvert obstructin flow (Culvert Abuse) 13th Street & Highway 1 Mr. Bookout"  Exhibt # 1768 and 1756 backs up this statement showing no Date Of Stabilization with this OCSD drainage change since 1977!County Discovery Abuse per the Baughman Property from State Highway 1 PDF File...  
         
        RE: Statute of Limitations and Prejudicial Error in regards to evidence withheld from discovery by the County of San Luis Obispo Molly Thurmond, Esq. (SBN 104973)Exhibit #579 (Appendix 15) Prejudicial Error or Not? Photo/Statement Documents withheld by County Of San Luis Obispo And Railroad at trial as allowed by Judge Tangeman, as Judge Tangeman Stated "All  Right" County of San Luis Obispo Causation in permits and drainage requirements on private property.  OCSD and Caltrans correcting 2002 drainage complaint problems in 2002/2003 as stated in exhibit #579 Complaint, Caltrans-McKinley Testomony P. 645 and (RA exhibit #1768) changing the Statute of Limitations!  Date of Stabilization! 
         
        County photo documents withheld from discovery by County and Rail Road Exhibit # 579 showing flooding problem on east side of State Highway 1 after Caltrans raised State Highway 1 as stated in document provided with County 2002 Drainage Study Questionnaire!  These photos where provided  December 2, 2008 and are not part of (Appendix 15) showing no Date of StabilizationStabilization!

        Why would a California Superior Court Judge allow partial evidence, exhibit # 579 to be withheld from discovery as stated in the Court Transcripts by Union Pacific Railroad and Judge Tangeman? “And for the purpose of the exhibits we don’t need the photographs.” The Court States:
        “All Right”   Judge Tangeman after his August 5, 2010 Inverse Condemnation Decision States on P. 2117-2018 without acknowledging the photographs, regardoing other documents withheld from discovery. "I accept Mr. Belsher's argument these questionnaires where not available at that time.  They weren't available until July 30th."  "no fruther information was forthcoming and now the questionnaires are here I guarantee they are voluminous, I haven't even read through all of them." 

        The Second Appellate Court Ruling June 28, 2010 Allows Caltrans to Raise and flood State Highway 1 --13th and Paso Robles Streets in Oceano California and then Grade and shovel debris into the Oceano Communities Storm Water Drainage Channel putting blame on a produce company for 1977 construction!  This ruling allows the United States government to discharge debris and well water into our United States drainage systems stating: "the nuisance or trespass alledged here is permanent."! 

        California and United States Justices,
        Associate Justice Carlos R. Moreno, Associate Justice Joyce L. Kennard, Associate Justice Kathryn Mickle Werdegar, Chief Justice Ronald M. George, Associate Justice Ming W. Chin, Associate Justice Marvin R. Baxter, Associate Justice Carol A. Corrigan, Anthony M. Kennedy, John Paul Stevens, Chief Justice John G. Roberts, Antonin G. Scalia, Clarence ThomasSamuel A. Alito, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor 

        The Second Appellate Court of California has changed our California Case Law in Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. and Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783.   Court of Appeal Opinion: [PDF] Filed 6/28/10 Modified and certified for publication 7/28/10 (order attached)
         
         
        Now in the publised decision Bookout et al. v. State of California Dept. of Transportation, government (Caltrans, OCSD) is allowed to fill in storm water drainage channels and dredge debris into storm water drainage systems as seen and talked about by Justice--Steven Z. Perren---Kenneth R. Yegan---Arthar Gilbert in their publised July 28, 2010 Decision!  Notice Photos talked about by the Second Appellate Court in their July 28, 2010 Inverse Condemnation decision!!


        The Second Appellate Court States in their July 28, 2010 published decision in regards to these photos above "Bookout points to no findings of fact in his favor. Instead, he relies on over 500 photographs and videos showing the flooding, several hundred documents which he claims show each defendant exercised dominion and control over the drainage facilities, and the testimony of his expert engineer, Keith Crow. He believes the evidence against the defendants was overwhelming." 

        This statement above by the Second Appellate Court affects every California resident and changes our California Case Law with the Second Appellate Courts published decision July 28, 2010 in Bookout et al. v. State of California Dept. of Transportation.  This decision now changes--Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. and Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783.  

        California State Bar September 2010 State Bar of California September 2010 Bookout v. State of California...
        Boston.com_Bookout_v._State_of_California...

        Bookout_v_State_of_California_Sh

        Citation information available. Click to Shepardize® Bookout v. State of California ex rel. Dept. of Transpo..., 186 Cal. App. 4th 1478  (Copy w/ Cite)
        Pages: 9
         
        WILLIAM BOOKOUT, Plaintiff and Appellant, v. STATE OF CALIFORNIA ex rel. DEPARTMENT OF TRANSPORTATION et al., Defendants and Respondents.

        No. B214906

        COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SIX

        186 Cal. App. 4th 1478; 2010 Cal. App. LEXIS 1231


        June 28, 2010, Filed

        NOTICE: As modified July 28, 2010.

        PRIOR-HISTORY:
        Superior Court of San Luis Obispo County, No. CV060384, Martin J. Tangeman, Teresa Estrada-Mullaney, Judges.

        COUNSEL: Belsher & Becker, Belsher, Becker & Roberts, John W. Belsher and Gregory A. Connell for Plaintiff and Appellant.

        Ronald W. Beals, Chief Counsel, David Gossage, Deputy Chief Counsel, Lucille Baca, Assistant Chief Counsel, Wm. David Sullivan and Derek S. Van Hoften for Defendant and Respondent Department of Transportation.

        Porter Scott, Terence J. Cassidy, Thomas L. Riordan and Michael William Pott for Defendant and Respondent County of San Luis Obispo.

        Daner Law Firm and Adam M. Daner for Defendant and Respondent Oceano Community Services District.

        Randolph Cregger & Chalfant and Thomas A. Cregger for Defendant and Respondent Union Pacific Railroad.

        JUDGES: Gilbert, P. J., with Yegan and Perren, JJ., concurring.

        OPINION BY: Gilbert



        GILBERT, P. J.—Plaintiff alleges damages because several defendants caused flooding on his property when it rained. We conclude, among other things, that the flooding allegedly caused by the public entities here does not constitute control or posession of the plaintiff’s property. Therefore the three-year statute of llimitations applies.

        We also conclude that the rules of causation are the same whether applied in inverse condemnation or tort.

        Plaintiff brought this action against a number of public entities and a railroad claiming defendants caused his property to flood when it rained. The complaint alleged inverse condemnation and tort causes of action. The inverse condemnation cause of action was tried to the court. After plaintiff's case, the trial court granted nonsuit based on the statute of limitations, failure to prove causation, and a determination that the railroad is not a public entity. Thereafter, defendants moved for judgment on the pleadings on the tort causes of action. The court granted the motion based on the trial court's previous finding of lack of causation and the statute of limitations. We affirm.

        FACTS

        In 2000, William Bookout acquired a parcel of property in the Oceano community of San Luis Obispo County (County). He opened a nursery business on the property shortly thereafter.

        The property lies at the intersection of Paso Robles and 13th Streets. Highway 1 cuts diagonally across the intersection, cutting through the southwest tip of Bookout's parcel. California’s Department of Transportation (Caltrans) owns Highway 1. The Union Pacific Railroad (Railroad) owns land across from Highway 1. The Railroad's predecessor in interest, the Southern Pacific Railroad Company, acquired the land by deed from a private party in 1894. A railroad line on a raised bed was constructed on the property.

        When it rains, surface water from the surrounding area drains away from Bookout's parcel into a drainage channel on the Railroad's property. A 24-inch iron pipe conducts the water under the raised railbed. In 1939 or 1940, the Railroad extended the pipe to go under a second spur added by the Railroad.

        The Pismo Oceano Vegetable Exchange (Exchange) first leased, then purchased, from the Railroad the property west of the raised railbed. The iron pipe discharges onto the Exchange's parcel. Around 1977, the Exchange installed a subsurface junction box at the pipe's outfall. From the junction box, the water is diverted 90 degrees through a second 24-inch pipe to a retaining pond 200 feet away. The junction box is inadequate, causing the water to back up and flood Bookout's property.

        The Oceano Community Services District (District) owns a water well. From time to time, the well discharges water into the drainage channel that leads to the culvert under the railbed. Exchange employee, Dan Sutton, testified Bookout discussed the flooding with him shortly after the nursery opened. District employee, Phillip Davis, testified Bookout complained about flooding every time it rained. Davis recalled receiving a complaint from Bookout about flooding in December 2002. Davis's daily log for that year makes reference to a meeting with Bookout on December 20, 2002. Bookout took a picture of the pipe going into the drainage channel in the aftermath of a rain event in 2002. The picture included a District employee. Caltrans employee, Fred Brebes, testified that before he retired in 2002 he met with Bookout about damage to his property due to flooding.
        -----------------------------------------------------------------------------------------------------------------------------------------------------------------------
             The Second Appellate Court ignores Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. ”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 Appellate Court ignores Caltrans ownership of the first four feet of the storm water drainage inlet and the OCSD ownership and control of their Well # 8 pipe inside this storm water drainage channel!  The Appellate Court ignores exhibit # 1768 presented to the Appellate Court showing OCSD maintenance and drainage changes in December 2002 changeing the Statute of Limitations! 

        The Second Appellate Court July 28, 2010 published decision compleatly ignores Statute Of Limitations changes as seen in exhibit # 579 "Did you observe likely causes of the flooding, such as clogged culverts under roads, catch basins filled with dirt, no place for water to flow?"  On Exhibit # 579 withheld from discovery by the County Of San Luis Obispo it was stated--- "Hwy 1 Not Adaquate drainage on Hwy 1 under the train track & Overlay from Caltrans in 2001 on Hwy 1" 

        The Second Appellate Court Justice--Steven Z. Perren---Kenneth R. Yegan---Arthar Gilbert---Paul Coffee would not talk about these photos that went with exhibit # 579 that Superior Court Judge Martin J. Tangeman did not feel were needed as evidence as he and Union Pacific Railroad stated "“And for the purpose of the exhibits we don’t need the photographs.” The Court States: “All Right”  
        ----------------------------------------------------------------------------------------------------------------------------------------------------------------

        In June 2002, Bookout returned a County questionnaire concerning flooding in Oceano. Bookout stated on the questionnaire that flooding, one foot deep, occurred once a year, and that the flooding damages his inventory.
         

        On May 2, 2006, Bookout filed a complaint against Caltrans, the District, the Railroad, the County and the Exchange for inverse condemnation, nuisance, trespass and negligence. Bookout filed a first amended complaint in May 2007. He alleged the flooding ruined his nursery business.

        Trial on the inverse condemnation cause of action was bifurcated from the other causes of action. Trial was before the court sitting without a jury. During trial, the Exchange entered into a good faith settlement with Bookout. Trial proceeded against the remaining defendants.

        Bookout claimed he first discovered the flooding in February 2004. His expert engineer, Keith Crowe, testified that six conditions caused the flooding: (1) the pipe under the Railroad's tracks was too small for the conditions; (2) the pipe's capacity was compromised by the Exchange's poorly designed extension; (3) the District's well added silt and debris; (4) the County, Caltrans and the District allowed or caused upstream watershed conditions to worsen; (5) all remaining defendants contributed to a decrease in storage volume at the pipe's inlet; and (6) a lack of maintenance by all defendants.

        After Bookout completed the presentation of his case, defendants moved for judgment of nonsuit pursuant to Code of Civil Procedure section 631.8. 1 The trial court granted the motion.

        FOOTNOTES

        1 All statutory references are to the Code of Civil Procedure unless stated otherwise.


        The trial court determined that the applicable statute of limitations is three years, pursuant to section 338, subdivision (j). The court found Bookout's cause of action for inverse condemnation accrued some time prior to the middle of 2002. Thus the cause of action is barred by the statute of limitations. The court also found Bookout failed to carry his burden of proof that acts or omissions by the District, the County or Caltrans were the cause of the flooding. The court found that the Railroad may have been negligent by failing to enlarge the culvert or requiring that its tenant do so. But the court also found that the Railroad is not a public entity subject to an action for inverse condemnation.

        After the trial court granted nonsuit on the inverse condemnation cause of action, defendants moved for judgment on the pleadings for the remaining causes of action. The motion was based on collateral estoppel. A different trial court granted the motion.

        The trial court relied on the finding in the first phase that Bookout failed to prove causation as to the County, the District and Caltrans. Although the court in the first phase stated the Railroad may have been negligent, the court in the second phase determined that all remaining causes of action against the Railroad were barred by limitations.

        DISCUSSION

        I

        First Phase: Inverse Condemnation

        (a)

        Bookout contends the trial court applied the wrong statute of limitations.

        The trial court applied section 338, subdivision (j), which provides a three-year limitation on “[a]n action to recover for physical damage to private property under Section 19 of Article I of the California Constitution.” Section 19 of article I requires just compensation where private property is “taken or damaged” by a public entity. (Cal. Const., art. I, § 19, subd. (a).)

        Bookout argues the trial court should have applied the five-year statute of limitations applicable to actions for adverse possession. (See §§ 318, 319.)
        ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------
        The Second Appellate Court Justices--Steven Z. Perren, Arthur Gilbert and Kenneth R. Yegan are fully aware of Judge Martin J. Tangemans exhibits/statements in his August 5, 2008 inverse condemnation decision on P. 7 per photo exhibits # 1278-1337 and 1338 of this OCSD pipe directly inside the Railroad Culvert!  They now allow Government to block and dam storm water drainage systems as seen in these exhibit photos!   Photo Evidence/Exhibits presented to Judge Martin J. Tangeman 1278-1337-1338 pdf...
        -----------------------------------------------------------------------------------------------------------------------------------------------------------
        If the property is damaged, the three-year statute of limitations applies; if the property is taken, the five-year limitation on actions to recover property applies. (3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 605, p. 786; Patrick Media Group, Inc. v. California Coastal Com. (1992) 9 Cal.App.4th 592, 607 [11 Cal. Rptr. 2d 824].)

        Thus, in Lyles v. State of California (2007) 153 Cal.App.4th 281, 285 [62 Cal. Rptr. 3d 696], the court applied the three-year statute to allegations that the plaintiff's property was damaged by a flood caused when a state-owned culvert became blocked. In Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848, 855 [132 Cal. Rptr. 2d 444] (Lee), the court and parties agreed that the three-year statute applied to allegations that the plaintiff's property was damaged by the construction of a subway under a neighboring street.

        In contrast, courts have applied the five-year statute where a public entity has physically entered and exercised dominion and control over some portion of a plaintiff's property. Thus, in Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345 [28 Cal. Rptr. 357], the city entered the plaintiff's property, widened a drainage ditch that ran the length of the property and constructed a berm. In Ocean Shore R.R. Co. v. City of Santa Cruz (1961) 198 Cal.App.2d 267, 272 [17 Cal.Rptr. 892], the city constructed a road over the plaintiff's property. In Garden Water Corp. v. Fambrough (1966) 245 Cal.App.2d 324, 328 [53 Cal. Rptr. 862], a public entity took possession of the plaintiff's water system, supplied water to some 90 residences, maintained the system and retained all income.

        Here, unlike cases applying the five-year statute, no public entity physically entered Bookout's land or maintained possession and control over any portion of it. The trial court correctly concluded the three-year statute applies.
        ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------  NPDES - California Fish And Game Video --

        The Second Appellate Court has ruled June 28, 2010 that this 2001-2002 Oceano Community Service District drainage change is not Causation of our State Highway Flooding!  The Appellate Court has seen the videos of this OCSD pipe inside a storm water drainage channel discharging well water and debris daily into a storm water drainage system used by the County, Caltrans, OCSD and Union Pacific Rail Road!  The Appellate Court States: -------------------------------------------------------------------------------


        Bookout argues that even if the three-year statute applies, the trial court failed to use the “date of stabilization” to determine when the cause of action accrued.

        In Pierpont Inn, Inc. v. State of California (1969) 70 Cal.2d 282 [74 Cal. Rptr. 521, 449 P.2d 737], disapproved on another ground in Los Angeles County Metropolitan Transportation Authority v. Continental Development Corp. (1997) 16 Cal.4th 694 [66 Cal. Rptr. 2d 630, 941 P.2d 809], the state constructed a freeway over land owned by Pierpont. Pierpont brought an action for condemnation and damages. The state demurred on the ground that Pierpont failed to file a claim under the government claims within two years of the accrual of the cause of action. The court held the claim was timely. Pierpont reasonably awaited the completion of the project to determine more accurately the exact extent to which its remaining property would be damaged. (Id. at p. 293.) Courts have subsequently cited Pierpont for the proposition that where there is continuous and repeated damage, incident to a public improvement, the limitations period does not begin to run until the situation has stabilized. (See Lee, supra, 107 Cal.App.4th at p. 857.)

        The determination of when the statute of limitations begins to run is a question of fact. (Lee, supra, 107 Cal.App.4th at p. 857.) Here the trial court determined that the date of stabilization theory does not apply. The court found that the last improvements to the drainage system were constructed by the Exchange in the late 1970's, and that the flooding problem was relatively consistent and static for several years prior to the time Bookout purchased his property in 2000.
         
        Bookout challenges the trial court's findings by listing what it characterizes as changed conditions since the Exchange constructed the junction box in the 1970's. The alleged changed conditions include maintenance activities, modifications to well No. 8, weed abatement, removal of a retaining wall, alteration of Highway 1, shoveling and grading of debris, accumulation of debris, and an increase in impervious surfaces. But none of these alleged changes of conditions compelled the trial court to conclude that the flowing was not relatively consistent and static for several years prior to Bookout's purchase of his property.
        ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------

        The Second Appellate Court States in their July 28, 2010 published decision in regards to these photos above "Bookout points to no findings of fact in his favor. Instead, he relies on over 500 photographs and videos showing the flooding, several hundred documents which he claims show each defendant exercised dominion and control over the drainage facilities, and the testimony of his expert engineer, Keith Crow. He believes the evidence against the defendants was overwhelming." 

        This statement above by the Second Appellate Court affects every California resident and changes our California Case Law with the Second Appellate Courts published decision July 28, 2010 in Bookout et al. v. State of California Dept. of Transportation.  This decision now changes--Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. and Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783.   
        ------------------------------------------------------------------------------------------------------------------------------------------------


        Bookout argues the trial court erred in receiving documentary evidence that was not produced during discovery. The document is a county drainage study questionnaire returned by Bookout in July 2002. Bookout stated on the questionnaire that the area floods one foot or more once a year and that the flooding has damaged his inventory.

        The County explained that it was unaware of the document at the time of discovery. It said that the questionnaire responses were summarized for inclusion in a drainage study, but they were not filed by name, address or location. The Railroad's counsel happened to find Bookout's response during Crowe's testimony. The County pointed out that Bookout must have been aware of the document because he submitted it to the County. The trial court found the failure to produce the document was not in bad faith, and refused to impose discovery sanctions.

        Bookout cites Pate v. Channel Lumber Co. (1997) 51 Cal.App.4th 1447, 1455 [59 Cal. Rptr. 2d 919], for the proposition that the trial court has the power to exclude documents that a party has failed to produce in response to discovery requests. But in Pate, the trial court found that the party who failed to produce the requested documents had “ ‘played fast’ ” with the discovery rules. (Id. at p. 1453.) The trial court found no such bad faith here. Discovery sanctions are reviewed for an abuse of discretion. (Id. at p. 1454.) The trial court did not abuse its discretion.

        In any event, even without the challenged document, the trial court's finding that Bookout knew about the flooding in 2002 is supported by overwhelming evidence. Sutton, Davis and Brebes testified Bookout complained to them about flooding in 2002. Bookout even admitted he took a picture of the drainage pipe in the aftermath of flooding in 2002. Bookout has failed to carry his burden of showing he would have obtained a more favorable result had the challenged document been excluded. (See Thomas v. Lusk (1994) 27 Cal.App.4th 1709, 1720 [34 Cal. Rptr. 2d 265].)
        ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
         
        County photo documents withheld from discovery by County and Rail Road Exhibit # 579 showing flooding problem on east side of State Highway 1 after Caltrans raised State Highway 1 as stated in document provided with County 2002 Drainage Study Questionnaire!  These photos where provided  December 2, 2008 and are not part of (Appendix 15) showing no Date of StabilizationStabilization!

        Why would a California Superior Court Judge allow partial evidence, exhibit # 579 to be withheld from discovery as stated in the Court Transcripts by Union Pacific Railroad and Judge Tangeman? “And for the purpose of the exhibits we don’t need the photographs.” The Court States:
        “All Right”   Judge Tangeman after his August 5, 2010 Inverse Condemnation Decision States on P. 2117-2018 without acknowledging the photographs, regardoing other documents withheld from discovery. "I accept Mr. Belsher's argument these questionnaires where not available at that time.  They weren't available until July 30th."  "no fruther information was forthcoming and now the questionnaires are here I guarantee they are voluminous, I haven't even read through all of them." 
        ---------------------------------------------------------------------------------------------------------------------------


        (b)

        Even if the trial court erred in applying the statute of limitations, the trial court found that Bookout failed to carry his burden of proof as to causation in his action against the District, the County and Caltrans. The plaintiff has the burden of proving a substantial causal relationship between the defendant's act or omission and the injury. (California State Automobile Assn. v. City of Palo Alto (2006) 138 Cal.App.4th 474, 481 [41 Cal. Rptr. 3d 503].) To carry that burden the plaintiff must exclude the probability that other forces alone produced the injury. (Ibid.)

        Where, as here, the judgment is against the party who has the burden of proof, it is almost impossible for him to prevail on appeal by arguing the evidence compels a judgment in his favor. That is because unless the trial court makes specific findings of fact in favor of the losing plaintiff, we presume the trial court found the plaintiff's evidence lacks sufficient weight and credibility to carry the burden of proof. (See Rodney F. v. Karen M. (1998) 61 Cal.App.4th 233, 241 [71 Cal. Rptr. 2d 399]; Kunzler v. Karde (1980) 109 Cal.App.3d 683, 688 [167 Cal. Rptr. 425] [judgment appealed from is presumed correct].) We have no power on appeal to judge the credibility of witnesses or to reweigh the evidence. (Kimble v. Board of Education (1987) 192 Cal.App.3d 1423, 1427 [238 Cal. Rptr. 160].)

        Bookout points to no findings of fact in his favor. Instead, he relies on over 500 photographs and videos showing the flooding, several hundred documents which he claims show each defendant exercised dominion and control over the drainage facilities, and the testimony of his expert engineer, Keith Crowe. He believes the evidence against defendants was overwhelming.

        Bookout claims the evidence is credible because it is uncontradicted. He cites Joseph v. Drew (1950) 36 Cal.2d 575, 579 [225 P.2d 504], for the proposition that uncontradicted testimony of a witness may not be disregarded, but should be accepted as proof of the fact to which the witness testified. Indeed, there are no doubt cases where the uncontradicted testimony of a witness is so credible that no reasonable trier of fact could reject it. But this is not such a case.

        Here there is an obvious cause of the flooding. The Exchange modified the drainage by constructing a junction box and pipeline that redirected the flow of water by 90 degrees. The Exchange has settled with Bookout. Evidence that the remaining defendants contributed to the conditions that caused the flooding rests largely in Crowe's expert testimony. As helpful as expert opinion can be, such testimony carries a built-in bias: experts are most often very well paid for their opinions. The trial court had good reason to be skeptical of Crowe's testimony. We apply the usual rule on appeal that the trier of fact is not required to believe the testimony of any witness, even if uncontradicted. (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1028 [213 Cal. Rptr. 69].) The evidence presented here did not compel the trial court to find in favor of Bookout.
        --------------------------------------------------------------------------------------------------------------------------------------------------------------------------
        RE: Statute of Limitations and Prejudicial Error in regards to evidence withheld from discovery by the County of San Luis Obispo Molly Thurmond, Esq. (SBN 104973)Exhibit #579 (Appendix 15) Prejudicial Error or Not? Photo/Statement Documents withheld by County Of San Luis Obispo And Railroad at trial as allowed by Judge Tangeman, as Judge Tangeman Stated "All  Right" County of San Luis Obispo Causation in permits and drainage requirements on private property.  OCSD and Caltrans correcting 2002 drainage complaint problems in 2002/2003 as stated in exhibit #579 Complaint, Caltrans-McKinley Testomony P. 645 and (RA exhibit #1768) changing the Statute of Limitations!  Date of Stabilization! 
         
        -------------------------------------------------------------------------------------------------------------------------------------------------------------

        Bookout
        argues the County may be liable even if it did not cause the flooding. He cites Marin v. City of San Rafael (1980) 111 Cal.App.3d 591 [168 Cal. Rptr. 750], for the proposition that a governmental entity may be liable if it approves a work of improvement. There the city constructed a drainage pipe that extended onto a lot owned by the plaintiffs' predecessor. The lot owner obtained a permit to extend the pipe beyond his lot. The city's engineer told him exactly what pipe to lay and how to do it. Later a home was constructed on the buried drainage pipe. The plaintiffs purchased the home without knowledge of the pipe's existence. A few months later the pipe burst during a heavy rain damaging the plaintiffs' property. The plaintiffs placed a concrete obstruction in the pipe to prevent further damage. The city obtained an injunction requiring the plaintiffs to remove the obstruction and restore the pipe to an operational condition. The trial court found the city was not liable.

        The Court of Appeal reversed. The court stated the city was liable because (1) its engineer supervised and directed installation of the pipe, (2) the city used the pipe for drainage over many years, and (3) the city conceded the pipe was part of its storm drainage system. (Marin v. City of San Rafael, supra, 111 Cal.App.3d at p. 596.) In other words, the city was liable because it directed the installation of, used, and owned the pipe. It even obtained an injunction to prevent the plaintiffs from interfering with its operation. None of those factors are present here.

        (c)

        Bookout contends the trial court improperly applied a reasonableness test to determine liability. He points out that except for damage caused by public flood control projects, the test in inverse condemnation actions is strict liability. (Citing Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 753–754 [122 Cal. Rptr. 2d 38].)

        But Bookout fails to point to anywhere in the record that the trial court applied the reasonableness test instead of strict liability. In any event, the court's ruling was based on the statute of limitations and failure to prove causation. The results are the same under the reasonableness test or strict liability. Defendants prevail.
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        The Second Appellate Court Justices--Steven Z. Perren, Arthur Gilbert and Kenneth R. Yegan are fully aware of Judge Martin J. Tangemans statements in his August 5, 2008 inverse condemnation decision on P. 7 per photo exhibits # 1278-1337 and 1338 of this OCSD pipe directly inside the Railroad Culvert!  They now allow Government to block and dam storm water drainages systems as seen in these photos!   Photo Evidence/Exhibits presented to Judge Martin J. Tangeman 1278-1337-1338 pdf...

        Being a whistle blower in San Luis Obispo County has a price!  County of San Luis Obispo Answer to Petition for Review Supreme Court Case No. S185267 by Thomas L. Riordan, SBN 104827. The County ignores the fact that San Luis Obispo County issued the POVE building permits and required POVE to raise this drainage pond that the County uses for their storm water retention in the mid 80's!  This retention pond has been in use since the 1950's per Caltrans Photos! Not 1977 when the County issued new building permits!  The County acknowledges the OCSD County permitted discharge into this drainage system as seen in Judge Martin J. Tangeman exhibits noted #1278-1337-1338 showing POVE not at fault for the flooding of State Highway 1!  County of San Luis Obispo Answer to Petition for Review pdf...  -----------------------------------------------------------------------------------------

        II

        Second Phase: Judgment on the Pleadings

        (a)

        A judgment on the pleadings is similar to a general demurrer. (See 6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 187, p. 625.) The factual allegations of the complaint are accepted as true. (Ibid.) The court, however, may grant judgment on the basis of extrinsic matters of which it may take judicial notice. (Ibid.) Bookout does not contest that the trial court may take judicial notice of the court's decision in the first phase of the trial.

        The trial court in the first phase found Bookout failed to prove the County, the District or Caltrans caused harm to Bookout. Bookout argues the standard of causation for inverse condemnation is different from tort causation. He cites
        CACI No. 431 on multiple causes. 2 He claims, without citation to authority, that the standard of proof for causation stated in CACI No. 431 differs from causation for inverse condemnation. He fails to specify how it differs. In fact, if the defendant did not cause harm, there is no causation no matter what the cause of action. The trial court properly granted judgment on the pleadings to the County, the District and Caltrans.

        FOOTNOTES

        2 CACI No. 431 states: “A person's negligence may combine with another factor to cause harm. If you find that [defendant's] negligence was a substantial factor in causing [plaintiff's] harm, then [defendant] is responsible for the harm. [Defendant] cannot avoid responsibility just because some other person, condition, or event was also a substantial factor in causing [plaintiff's] harm.”
        -----------------------------------------------------------------------------------------------------------------------------------------------------------------------
        The Appellate Court ignores Caltrans ownership of the first four feet of the storm water drainage inlet and the OCSD ownership and control of their Well # 8 pipe inside this storm water drainage channel per exhibit # 1278-1337 and 1338 that Judge Martin J. Tangeman talks about on P. 7 of his August 5, 2008 inverse condemnation decision!  The Appellate Court ignores exhibit # 1768 presented to the Second Appellate Court showing OCSD maintenance and drainage changes in December 2002 changeing the Statute of Limitations!  Photo Evidence/Exhibits presented to Judge Martin J. Tangeman 1278-1337-1338 pdf...   

        ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------

        (b)

        The trial court in the second phase did not grant the Railroad judgment on the pleadings based on failure to prove causation. That is because the trial court in the first phase stated, “[A]t most, the Railroad negligently acted by omission by failing to enlarge a culvert or by failing to require (if that was possible) that its tenant do so.” Instead, the trial court in the second phase granted the Railroad judgment on the pleadings based on the statute of limitations.

        Bookout argues the trial court in the second phase erred in basing its judgment on the three-year statute of limitations. (§ 338, subd. (b).) Instead, Bookout contends the flooding constitutes a continuous trespass or nuisance and a new cause of action arises each time it floods.

        The cases distinguish between permanent and continuous nuisance or trespass. Where a nuisance is of such a character that it will presumably continue indefinitely, it is considered permanent and the limitations period runs from the time the nuisance is created. (Phillips v. City of Pasadena (1945) 27 Cal.2d 104, 107 [162 P.2d 625].) Where, however, a nuisance may be discontinued at any time, it is considered continuing in character. (Ibid.) A person injured by a continuous nuisance may bring successive actions, even though an action based on the original wrong may be barred. (Id. at pp. 107–108.) The same rules apply whether the wrong is characterized as nuisance or trespass. (Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1148 [281 Cal. Rptr. 827].)

        In Phillips, the alleged nuisance was a locked gate. The court determined that the nuisance could be characterized as continuous because it could be removed at any time. (Phillips v. City of Pasadena, supra, 27 Cal.2d at p. 108.) Here the Railroad purchased its property in 1894. The raised railbed and culvert pipe have been in place at least since 1940 and most probably for over 100 years. Unlike a locked gate, there is nothing to suggest the pipe is temporary or might be modified at any time. Our Supreme Court has stated, “The cases finding the nuisance complained of to be unquestionably permanent in nature have involved solid structures, such as a building encroaching upon the plaintiff's land … .” (Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 869 [218 Cal. Rptr. 293, 705 P.2d 866].) The solid structure here is no less permanent because it is built on a defendant's land.

        Bookout cites Mangini for the proposition that a nuisance is continuous if the damage is continuous. Bookout's reliance on Mangini is misplaced. There the plaintiffs alleged the defendant created a nuisance by polluting their land with hazardous waste. The defendant demurred on the ground that the complaint was filed beyond the three-year limitation. The trial court sustained the demurrer. In reversing, the Court of Appeal recognized the test for continuous nuisance is that the nuisance may be discontinued at any time. (Mangini v. Aerojet-General Corp., supra, 230 Cal.App.3d at p. 1143.) The court stated that the allegations of the complaint met “the crucial test of a continuing nuisance: that the offensive condition is abatable.” (Id. at p. 1147.) Because the defendant's alleged conduct ended years prior to the filing of the complaint, the court went on to say, “We note plaintiffs' land may be subject to a continuing nuisance even though defendant's offensive conduct ended years ago. That is because the ‘continuing’ nature of the nuisance refers to the continuing damage caused by the offensive condition, not to the acts causing the offensive condition to occur.” (Ibid.)

        Unlike the instant case, Mangini did not involve a solid structure. It involved abatable pollution. The court did not mean to suggest a nuisance is continuous simply because the damage produced by the nuisance is continuous. A solid structure that encroaches on a plaintiff's land produces continuous damage. Yet, our Supreme Court described such a nuisance as “unquestionably permanent.” (Baker v. Burbank-Glendale-Pasadena Airport Authority, supra, 39 Cal.3d at p. 869.) All Mangini was trying to say is that a nuisance can still be continuous even after the offensive conduct has ended.

        The nuisance or trespass alleged here is permanent. The three-year statute of limitations bars Bookout's causes of action for nuisance and trespass.


        The judgment is affirmed. Costs are awarded to respondents.

        Yegan, J., and Perren, J., concurred.



        The Second Appellate Court is mistaken on P. 8 of their July 28, 2010 published California Case Law decision as testimony presented to the Second Appellate Court from Phil Davis of the Oceano Community Service District and exhibit 1768 are facts that have been seen and mentioned by the Second Appellate Court! This evidence is overwhelming as seen above! These drainage changes are made after the Appellate Courts P. 8 100% Blame of the Pismo Oceano Vegetable Exchange! 

        OCSD stated to Judge Tangeman P. 383 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” –Question. How much water is discharged out of the pipe each time that you do the procedure that you described?  Answer. “Approximately 2,500 Gallons per minute?” Question. And the rate at which this water is discharged is somewhere around 1,300 gallons per minute?  Answer. “Well, it starts out fast and gradually slow down until it stops. And when it stops, all the water is going into the system.”P. 385 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."  P.386 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 did you oversee an extension of the pipe into the culvert that’s depicted there?  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 1338 is another example of the pipe extended into the culvert. Thirteen thirty nine, is this an OCSD employee? Answer
        . “I believe it is.”  Question: And I note that the pipe now is cut back from the entrance to culvert?  Answer: “That’s correct.”  Question: And is that an action which you and your staff took in 2002?Answer. “YES”

        Why would a California Superior Court Judge allow partial evidence, exhibit # 579 to be withheld from discovery as stated in the Court Transcripts by Union Pacific Railroad and Judge Tangeman? “And for the purpose of the exhibits we don’t need the photographs.” The Court States: “All Right”   Judge Tangeman after his August 5, 2010 Inverse Condemnation Decision States on P. 2117-2018 without acknowledging the photographs, regardoing other documents withheld from discovery. "I accept Mr. Belsher's argument these questionnaires where not available at that time.  They weren't available until July 30th."  "no fruther information was forthcoming and now the questionnaires are here I guarantee they are voluminous, I haven't even read through all of them." 

        Photo that RailRoad and County of San Luis Obispo-did provide with exhibit # 579 to Judge Tangeman and Court; stating drainage concern
        ---"Pipeline in rail road culvert obstructing flow (Culvert Abuse) 13th Street & Highway 1 Mr. Bill Bookout"  This drainage complaint was fixed by Caltrans and the Oceano Community Service District as stated in RA exhibit # 1768!  (Appendix 15) shows other complaints.

        Caltrans photos of drainage problems that Caltrans had created on East Side of State Highway 1. Taken after Oceano Community Drainage Study Questionnaire exhibit # 579 withheld from discovery.  Why would Caltrans Raise State Highway 1 and not account for drainage or ponding?
         
        Statute of Limitations with the Oceano Community Service District; drainage changes in December 2002 (RA Exhibit 1768)and prior as seen in photo exhibits below, with the Oceano Community Service Districts use of this drainage system for discharging 2500 gallons of Well water per minute into this undersized culvert blowing in and cementing debris and silt into this culvert year-around!
         
        Flooding Photo in 2002 complained about to Caltrans and the Oceano Community Service District. fixed December 20, 2002---Caltrans and OCSD corrected this drainage problem as seen in APPELLANT’S REPLY BRIEF Exhibit # 1768 as stated by OCSD "I had to meet with Bill Bookout and a couple of guys from cal trans about the 6 inch line from well 8 that ends at the culvert by the railroad tracks.  I had Dan saw off the 6 inch pipe and end it in front of the culvert so that there will be no danger of the pipe plugging debris at the entrance to the culvert."  The Next OCSD log of this drainage system is February 9, 2004 before the first flooding of Oceano Nursery.  OCSD States: "Then Joe had him cleaning out the drainage ditch by the railroad track down at 13th and Front Street"

        i) Maintenance activities in the drainage Chanel. (Respondent’s Appendix “RA” Exhibit 1768; Reporters Transcript “RT” Vol. 2 Pg 382-400; RT Vol 6 Pg 1506-1507; Exhibit 1446-1447).

        ii) Modification of Well #8 discharge pipe by OCSD. (RA Exhibit 1768)

        iii) Operation of Well # 8 (RT Vol 2 Pg. 383)

        iv) Weed abatement in the drainage Chanel by OCSD. (RA Exhibit 1768; RT Vol 6 Pg 1545)


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