Lieutenant Governor Abel Maldonado and Governor Arnold Schwarzenegger, it is unfortunate that with the Second Appellates Courts July 28, 2010 published California Case Law decision, that this case will affect so many of our Constitional Rights in regards to inverse condemnation that we once had! Please read below how some interpret Bookout v. State of California!
Bookout v. State Of California K... Bookout v. State of California Supreme Court Appeal...
Our Constitution and how this published case Bookout v. State of California affects Inverse Condemnation Case Law!
From: Bill Bookout [mailto:Pismobeachdiveshop@charter.net]
Sent: Wednesday, August 18, 2010 9:10 PM
To: 'MWilmar@sheppardmullin.com'
Cc: 'AMerritt@sheppardmullin.com'; 'John Belsher'; 'Greg Connell'; 'velie@calcoastnews.com'; 'rmiller@newtimesslo.com'; 'eslater@timespressrecorder.com'; 'ghooke@lepperlaw.com'; 'Wilson, Nick - SLO'; 'bmcewen@fresnobee.com'; 'bray@thetribunenews.com'; 'sduerr@thetribunenews.com'
Subject:
Mr. Michael Wilmar and Alex Merrit
Please be advised that your information is inaccurate and misleading and may affect my appeal to the California Supreme Court. I request that you review this case! The following websites show what was presented to the Second Appellate Court and San Luis Superior Court Judge Martin J. Tangeman!
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.unitedstatessupremcourt.com www.unitedstatessupremecourt.net
www.senatorsamblakeslee.com
In the published California Case Law Decision July 28, 2010 the Second Appellate Court acknowledges “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.” This is not the Rail Road
This new California Case law decision puts responsibility on downstream property owners for property that they do not own upstream and requires downstream property owner to maintain uphill drainage! “The court found that the Railroad may have been negligent by failing to enlarge the culvert or requiring that its tenant do so.”
The Second Appellate Court ignores the fact that this water comes from two County Streets uphill and our State Highway
How is it with drainage changes by the Oceano Community Service District in a storm water drainage system does the Second Appellate Court find this flooding relatively consistent and static for several years prior to the time Bookout purchased his property in 2000! “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.”
How is it that Government can now withhold evidence from discovery and trial? The Retaining Wall Mentioned is owned by Caltrans! The Modifications to Well # 8 are owned by the Oceano Community Service District and where installed after the POVE Junction Box! “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 change 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.
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.”
Mr. Michael Wilmar and Alex Merrit, I ask that each of you correct your online accounting of this case! This case affects all of our prior inverse condemnation laws! The permanent flooding of a State Highway
Sincerely
Bill Bookout
Real Estate, Land Use and Environmental Law Blog - Up-to-date information on Real Estate, Land Use and Environmental Law
Published By
Home > Inverse Condemnation > Three-Year Statute Of Limitations Applies To Inverse Condemnation Action >
August 10, 2010 |
Three-Year Statute Of Limitations Applies To Inverse Condemnation Action
William Bookout v. State of California ex rel. Department of Transportation, 2d Civil No. B214906 (2nd Dist., June 28, 2010).
By Michael Wilmar and Alex Merritt
In William Bookout v. State of California
In 2000, William Bookout purchased land in San Luis Obispo County San Luis Obispo County
The Exchange settled, but the other four defendants proceeded to trial. The trial was bifurcated, so that one court heard the inverse condemnation claims and a second heard the tort claims. The first trial court granted a nonsuit on the inverse condemnation claims. It determined that Bookout's cause of action had accrued sometime prior to the middle of 2002, and therefore his 2006 complaint was barred by a three-year statute of limitations. Furthermore, the court found that Bookout had failed to carry his burden of proof on causation as to all the defendants except the Railroad. However, the court also found that the Railroad was not properly subject to an action for inverse condemnation because it was not a public entity.
The second court heard the tort claims and granted the defendants' motion for judgment on the pleadings. The court took judicial notice of the first court's ruling, and under the doctrine of collateral estoppel, found that Bookout had failed to prove causation as to all the defendants except the Railroad. The court then granted judgment on the pleadings in favor of the Railroad on the basis that all the remaining causes of action against it were barred by a three-year statute of limitations.
On appeal to the Second District, Bookout argued that both trial courts had erred. He raised a number of legal arguments, but his key contention was that both courts had applied the wrong statute of limitations.
Inverse Condemnation Claims
As to the inverse condemnation claims, Bookout argued that the trial court had improperly applied a three-year statute of limitations when it should have applied a five-year statute of limitations. The trial court had applied Code of Civil Procedure section 338(j), which sets a three-year limitations period for an "action to recover for physical damage to private property" under the takings clause of the California Constitution. Bookout argued that the court should have applied Code of Civil Procedure sections 318 and 319, which set a five-year limitations period for an action for adverse possession.
In evaluating Bookout's argument, the Second District noted that "courts have applied the five-year statute where a public entity has physically entered and exercised dominion and control over some portion of the plaintiff's property." In contrast, courts have applied the three-year statute of limitations where the plaintiff's property was merely damaged. The court reasoned that the flooding did not trigger the five-year statute because "no public entity physically entered Bookout's land or maintained possession and control over any portion of it." Assuming the defendants were responsible for the flooding, they were merely damaging Bookout's nursery. Therefore, the Second District held that the trial court had properly applied the three-year statute of limitations.
Bookout argued that even if three years was the correct limitations period, his claim was not barred. To make this argument, Bookout advanced a "date of stabilization" theory. Under this theory, which finds support in Pierpont Inn v. State of California, 70 Cal.2d 282 (1969), where damages incident to a public improvement are continuous and repeated, the limitations period does not run until conditions have stabilized. Bookout argued that the flooding conditions were changing and unstable, and therefore that the limitations period had not yet started. The Second District rejected Bookout's argument, deferring to the trial court's finding that the flooding had been "relatively consistent and static" for several years before he bought the property.
In determining when the limitations period began to run, the trial court had relied in part on a questionnaire that Bookout submitted to the County in 2002 describing the flooding at his nursery. Bookout objected to the admission of the questionnaire because the County had not provided a copy to Booker at the time of discovery. The trial court admitted the questionnaire after finding that the County had not acted in bad faith and that Booker should have been aware of the questionnaire because he himself prepared it. The Second District found that the trial court's decision to admit the questionnaire was not an abuse of discretion. Moreover, the court found that even if the questionnaire had been excluded, Bookout was unlikely to have obtained a more favorable result because there was other evidence that documented Bookout's knowledge of the flooding as of 2002.
Tort Claims
As to the tort actions, Bookout contended on appeal that the flooding was a continuous nuisance and trespass, and therefore that the limitations period should restart every time flooding occurred. The trial court had found that the three-year limitations period ran only once beginning in 2002 and had expired by the time Bookout filed his complaint in 2006.
Under California
The Second District disagreed with Bookout that the flooding was a continuous nuisance. The court noted that there was "nothing to suggest the pipe [responsible for the flooding] is temporary or might be modified at any time." Because the flooding could not be freely discontinued or abated, the court found that that it did not qualify as a continuous nuisance. Instead, the court decided that the flooding was a permanent nuisance. It noted that previous cases had found permanent nuisances where "solid structures" were causing the harm. The court noted that the pipe and associated drainage system were solid structures, and that further supported its conclusion that the flooding was a permanent nuisance. Because the nuisance was permanent, the Second District held that the trial court had properly analyzed the limitations period and barred Bookout's tort claims.
Authored By:
Michael B. Wilmar
(415) 774-3242
MWilmar@sheppardmullin.com
and
Alex Merritt
(415) 774-3174
AMerritt@sheppardmullin.com
Bookout v. State Of California K...
The Supreme Court Of California needs to review why the Second Appellate Court Does Not Feel that Exhibit # 1756 Is Causation of our State Highway 1 Flooding! This OCSD Well # 8 Pipe Dredging Debris every day into this County, State, OCSD Storm Water Drainage Channel Should Not Be Permanent or Legal In the State of California for Government USE! The Supreme Court Of California will have to make a ruling as to if this use is legal in California per the Supreme Court of California rulings. Bookout v. State of California Supreme Court Appeal...
The Supreme Court Of California will need to review the Oceano Community Service District-and-Union Pacific Rail Road Exhibit # 1756 to the Second Appellate Court-As Stated:-"Because this is an established drainage channel. The District feels that its full design capacity should be available for use. Reserch, however has not clearly revealed the agency responsible for the maintenance of the channel. Consequently , we have no idea the condition of the channel and whether, in its present state of maintenance, it can adequately carry the quantity of water that will be discharged."
The Supreme Court Of California will need to review this video presented to Judge Tangeman and the Second Appellate Court Justices--Steven Z. Perren, Kenneth R, yegan and Arthur Gilbert.
1:16 The California Second Appellate Court Justices--Steven Z. Perren Kenneth R. Yegan and Arthur Gilbert Ignore California Case law as seen in this video presented to them and Superior Court Judge Martin J. Tangeman, per Akins v State (1998) 61 Cal.App.4th 1, Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, Belair v. Riverside County Flood Control District (1988) 47 Cal.3d 550, Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848, Lyles v. State of California (2007) 153 Cal.App.4th 281, Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596, Skoumbas v City of Orinda (2008) 165 Cal.App.4th 783, Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.)
Oceano Community Service District Well # 8 January 13, 2007
Video Presented to Judge Martin J. Tangeman now seen on YOUTUBE for all California Residents knowledge of Inverse Condemnation! Skoumbas v City of Orinda (2008) 165 Cal.App.4th 783
County Of San Luis E-Mail Deal and Withholding of Evidence
The Second Appellate Court has allowed Caltrans to Raise and flood State Highway 1 13th and Paso Robles Streets in Oceano California since 2000 and then Grade and shovel debris into the Oceano Communities Storm Water Drainage Channel putting blame on a produce company for 1977 construction on Union Pacific Rail Road property! They Allow withholding of evidence stating "The Trial Court did not abuse its discreation."
Judge Martin J. Tangeman stated in a request for rehearing for a new trial about this evidence withheld from discovery and at the time of trial pertaining to Brebes and Davis statements September 12, 2008.---"No further information was forthcoming and now the questionnaires are here I guarantee they are voluminous, I haven't even read through all of them." "But I think it's imcumbent to demonstrate to the court exactly which factual assertation and which witness would actually produce evidence which would result in a basis for a new trial." County Discovery Abuse Brebes--Sutton per the Baughman Property--Highway 1 PDF File...
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."
Being an elected OCSD Director--Whistleblower in California Per the flooding of our State Highway-as seen in this March 1, 2007 E-Mail to Scott Radovich and the February 6, 2007 Clayton U. Hall letter To: Ms. Mauri McGuire, Carl Warren & Company CC-Rita L. Neal ESQ--Debra A Hessli-Risk Manager County of San Luis Obispo--Trying to Make A Deal in regards to the Evidence that they Withheld From Discovery involving their County Insurance. Plus their Documents presented to Judge Tangeman showing that Flooding Could Be Abated for $43,295.00---pdf County December 18, 2006 Statement-("Potentially Dangerious Situation") involves public safety to our Pacific Ocean!
Caltrans, County of San Luis Obispo and OCSD. 
California State Highway Patrol Put in Danger with flooding--Toxic Waste
The Second Appellate Court Justices--Steven Z. Perren, Kenneth R. Yegan and Arthur Gilbert do not believe as seen in the video above, that the County, and Caltans storm water from State Highway 1 --13th and Paso Robles Streets inside the Oceano Nursery property is the use of a "Public Enity Physically entered Bookout's land or maintained possession and control over any portion of it." They Believe--"The Trial Court correctly concluded the three-year statute applies." The Second Appellate Court States this even after seeing photos and videos and hearing Caltrans testomony of their shoveling and grading Caltrans storm water debris into the Oceano Community's storm water drainage channel!
March 1, 2007 E-Mail "It is unfortunate that i'm the one that has to be the whistleblower on the County/State/OSD-Cover-up. This has had a Defamation on my reputation, tremendous financial losses and caused a stigma on my Business that will last forever. You initially took this case on a inverse condemnation assumption and I still feel, that's the case. P.O.V.E. and Union Pacific is purely irresponsible and negligent."
March 1, 2007 E-Mail County in 2007 Withholding of Evidence! "The County Of San Luis Obispo has withheld key information regarding flooding and prior actions of other agencies this has cost the County Tax payers thousands of dollars as drainage studies have been done without this information being provided."
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: "Plaintiff brought this action against a number of public entities and a railroad claiming the 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, the 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."
Second Appellate Court-Inverse Condemnation 
Train Wreck
Jun 28 2010
B214906
[PDF] [DOC]
Bookout v. State ex rel. Dept. of Transportation CA2/6 filed 6/28/10 
The Second Appellate Court allows withholding of evidence as talked about by Judge Martin J. Tangeman September 12, 2008 and believe's that it is OK for Caltrans to Grade and Shovel Storm Water debris into this California storm water drainage system after Caltrans raised State Highway 1 a foot! The Second Appellate Court beleives that the flooding of our State Highway cannot be abated! The Second Appellate Court believes that this flooding is caused by Pismo Oceano Vegetable Exchange in 1977 construction and that their is no government Liability for Caltrans, County and OCSD drainage changes since 1977! The Second Appellate Court does not take into account that this POVE construction was over seen and permitted by the County Of San Luis Obispo. The Second Appellate Court ignores the fact that the County of San Luis Obispo required the outlet of this drainage system raised in 1985 County Building permits!
The Second Appellate Court Justices--Steven Z. Perren, Kenneth R. Yegan and Arthur Gilbert State on P. 6 and 7 ignoring documents from Brebes and Davis prior to State Highway 1 flooding--(Fountain Ave-Airpark Dr)! "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 Second Appellate Court call this a (Single) document instead of what Judge Martin J. Tangeman Stated September 12, 2008 in regards to some of these (Redacted) whiteness statements, questionnaires and evidence withheld from discovery below! "No further information was forthcoming and now the questionnaires are here I guarantee they are voluminous, I haven't even read through all of them." "But I think it's imcumbent to demonstrate to the court exactly which factual assertation and which witness would actually produce evidence which would result in a basis for a new trial." County Discovery Abuse Brebes--Sutton per the Baughman Property--Highway 1 PDF File...
The California Second Appellate Court Justices--Steven Z. Perren Kenneth R. Yegan and Arthur Gilbert have Ruled the actions Above and below are now Permanent and legal in California, per their Appellate Court Decision June 28, 2010! Each Justice is fully aware, that this flooding can be abated for only $43,295.00 Exhibit # 1790. They are aware of the documents above and below withheld from Discovery Exhibit # 579. They are aware of the OCSD Exhibit # 1756-Prescriptive Easement daily use of this drainage system for 2500 hundred gallons per minute of well water discharge as seen in this 1983 letter to the County of San Luis Obispo Rail-Road taking this drainage system. They are aware of the Video's of this pipe discharging debris into this drainage system since 2001 per exhibit # 1768! The County 1985 Approved and permitted--RR/POVE pond--mentioned on P. 2 and P. 6-Video P. 8 of their Appellate Court decision! They are aware of documents withheld by the County Of San Luis Obispo P. 6 and P. 7! The Appellate Court is aware that this drainage course was not changed by POVE per Caltrans Drainage Documents December 17, 1973 Exhibit # 1772 (Prejudicial Error) (Accrual Date) (Causation)
County of San Luis Obispo and Caltrans Liability to the Pacific Ocean
Plane Crashes San Luis Obispo County Airport Oceano-Flooding Second Appellate Court-Inverse Condemnation The County of San Luis Obispo Exhibit # 579 Documents withheld from discovery show how this drainage once traveld to the Oceano Airport in 2002 as stated in these County Questionnaires! These documents will ultimatly close the Oceano Airport when Caltrans and the County San Luis Obispo end using State Highway 1 for Storm Water Retention!
YOUTUBE County Of San Luis E-Mail Deal and Withholding of Evidence
California State Government (Caltrans, County, OCSD) should not be allowed to use our storm water drainage channels for their Debris and Well Water! These videos above were presented to Judge Martin J. Tangeman and the Second Appellate Court! Please read the following two PDF files regarding San Luis Obispo County and OCSD actions during discovery!
County of San Luis Obispo--Trying to Make A Deal in regards to the Evidence that they Withheld From Discovery involving their County Insurance. Plus their Documents presented to Judge Tangeman that Flooding Could Be Abated---pdf
OCSD Attorney Conflict Robert Weeks--Fiancee/Wife Was Oceano Nursery Bookkeeper that the Oceano Community Service District Hired knowing this Fact!---OCSD Directors Full Knowledge of Their Action!. pdf..
The Second Appellate Court does not find an (Abuse of Discretion) in their June 28, 2010 decision P. 6 and 7 or, that it is a Prejudicial Error for the County of San Luis Obispo-or Union Pacific Railroad to withhold 150 Oceano/County whiteness-plus photo/Questionnaires/ documents from discovery until after trial July 30, 2008! They allow Superior Court Judge Martin J. Tangeman to withhold photo attachments that went with Exhibit # 579 showing Caltrans maintaining the Oceano Communities Storm Water Drainage Channel--Raising State Highway 1 and blocking drainage on the East Side of State Highway 1!. The Second Appellate Court does not find this to be a Prejudicial Error in California!
The Second Appellate Court States Page. 7 and 8 of their June 28. 2010 decision "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. 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.) To carry that burden plaintiff must exclude the probability that other forces alone produced the injury. (Ibid.) " These YOUTUBE videos below show (Causation) Each State Senator and State Assembly Member is fully aware of these videos and Caltrans, County, OCSD use of this drainage system!Train Wreck 
State Highway Patrol put in danger by Caltrans! Railroad Train Wreck
Video talked about by the Appellate Court----Oceano Train Wreck as seen in photo exhibits withheld from discovery by the County Of San Luis Obispo in exhibit # 579! Caltrans Caught shoveling and grading debris into storm water drainage channel as seen by the California Second Appellate Court and San Luis Obispo Superior Court Judge Martin J. Tangeman!
Lieutenant Governor Abel Maldonado and Governor Arnold Schwarzenegger, it is unfortunate that with the Second Appellates Courts July 28, 2010 published California Case Law decision, that this case will affect so many of our Constitional Rights in regards to inverse condemnation that we once had! Please read below how some interpret Bookout v. State of California!
Bookout v. State Of California K... Bookout v. State of California Supreme Court Appeal...
Our Constitution and how this published case Bookout v. State of California affects Inverse Condemnation Case Law!
From: Bill Bookout [mailto:Pismobeachdiveshop@charter.net]
Sent: Wednesday, August 18, 2010 9:10 PM
To: 'MWilmar@sheppardmullin.com'
Cc: 'AMerritt@sheppardmullin.com'; 'John Belsher'; 'Greg Connell'; 'velie@calcoastnews.com'; 'rmiller@newtimesslo.com'; 'eslater@timespressrecorder.com'; 'ghooke@lepperlaw.com'; 'Wilson, Nick - SLO'; 'bmcewen@fresnobee.com'; 'bray@thetribunenews.com'; 'sduerr@thetribunenews.com'
Subject:
Mr. Michael Wilmar and Alex Merrit
Please be advised that your information is inaccurate and misleading and may affect my appeal to the California Supreme Court. I request that you review this case! The following websites show what was presented to the Second Appellate Court and San Luis Superior Court Judge Martin J. Tangeman!
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.unitedstatessupremcourt.com www.unitedstatessupremecourt.net
www.senatorsamblakeslee.com
In the published California Case Law Decision July 28, 2010 the Second Appellate Court acknowledges “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.” This is not the Rail Road
This new California Case law decision puts responsibility on downstream property owners for property that they do not own upstream and requires downstream property owner to maintain uphill drainage! “The court found that the Railroad may have been negligent by failing to enlarge the culvert or requiring that its tenant do so.”
The Second Appellate Court ignores the fact that this water comes from two County Streets uphill and our State Highway
How is it with drainage changes by the Oceano Community Service District in a storm water drainage system does the Second Appellate Court find this flooding relatively consistent and static for several years prior to the time Bookout purchased his property in 2000! “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.”
How is it that Government can now withhold evidence from discovery and trial? The Retaining Wall Mentioned is owned by Caltrans! The Modifications to Well # 8 are owned by the Oceano Community Service District and where installed after the POVE Junction Box! “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 change 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.
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.”
Mr. Michael Wilmar and Alex Merrit, I ask that each of you correct your online accounting of this case! This case affects all of our prior inverse condemnation laws! The permanent flooding of a State Highway
Sincerely
Bill Bookout
Real Estate, Land Use and Environmental Law Blog - Up-to-date information on Real Estate, Land Use and Environmental Law
Published By
Home > Inverse Condemnation > Three-Year Statute Of Limitations Applies To Inverse Condemnation Action >
August 10, 2010 |
Three-Year Statute Of Limitations Applies To Inverse Condemnation Action
William Bookout v. State of California ex rel. Department of Transportation, 2d Civil No. B214906 (2nd Dist., June 28, 2010).
By Michael Wilmar and Alex Merritt
In William Bookout v. State of California
In 2000, William Bookout purchased land in San Luis Obispo County San Luis Obispo County
The Exchange settled, but the other four defendants proceeded to trial. The trial was bifurcated, so that one court heard the inverse condemnation claims and a second heard the tort claims. The first trial court granted a nonsuit on the inverse condemnation claims. It determined that Bookout's cause of action had accrued sometime prior to the middle of 2002, and therefore his 2006 complaint was barred by a three-year statute of limitations. Furthermore, the court found that Bookout had failed to carry his burden of proof on causation as to all the defendants except the Railroad. However, the court also found that the Railroad was not properly subject to an action for inverse condemnation because it was not a public entity.
The second court heard the tort claims and granted the defendants' motion for judgment on the pleadings. The court took judicial notice of the first court's ruling, and under the doctrine of collateral estoppel, found that Bookout had failed to prove causation as to all the defendants except the Railroad. The court then granted judgment on the pleadings in favor of the Railroad on the basis that all the remaining causes of action against it were barred by a three-year statute of limitations.
On appeal to the Second District, Bookout argued that both trial courts had erred. He raised a number of legal arguments, but his key contention was that both courts had applied the wrong statute of limitations.
Inverse Condemnation Claims
As to the inverse condemnation claims, Bookout argued that the trial court had improperly applied a three-year statute of limitations when it should have applied a five-year statute of limitations. The trial court had applied Code of Civil Procedure section 338(j), which sets a three-year limitations period for an "action to recover for physical damage to private property" under the takings clause of the California Constitution. Bookout argued that the court should have applied Code of Civil Procedure sections 318 and 319, which set a five-year limitations period for an action for adverse possession.
In evaluating Bookout's argument, the Second District noted that "courts have applied the five-year statute where a public entity has physically entered and exercised dominion and control over some portion of the plaintiff's property." In contrast, courts have applied the three-year statute of limitations where the plaintiff's property was merely damaged. The court reasoned that the flooding did not trigger the five-year statute because "no public entity physically entered Bookout's land or maintained possession and control over any portion of it." Assuming the defendants were responsible for the flooding, they were merely damaging Bookout's nursery. Therefore, the Second District held that the trial court had properly applied the three-year statute of limitations.
Bookout argued that even if three years was the correct limitations period, his claim was not barred. To make this argument, Bookout advanced a "date of stabilization" theory. Under this theory, which finds support in Pierpont Inn v. State of California, 70 Cal.2d 282 (1969), where damages incident to a public improvement are continuous and repeated, the limitations period does not run until conditions have stabilized. Bookout argued that the flooding conditions were changing and unstable, and therefore that the limitations period had not yet started. The Second District rejected Bookout's argument, deferring to the trial court's finding that the flooding had been "relatively consistent and static" for several years before he bought the property.
In determining when the limitations period began to run, the trial court had relied in part on a questionnaire that Bookout submitted to the County in 2002 describing the flooding at his nursery. Bookout objected to the admission of the questionnaire because the County had not provided a copy to Booker at the time of discovery. The trial court admitted the questionnaire after finding that the County had not acted in bad faith and that Booker should have been aware of the questionnaire because he himself prepared it. The Second District found that the trial court's decision to admit the questionnaire was not an abuse of discretion. Moreover, the court found that even if the questionnaire had been excluded, Bookout was unlikely to have obtained a more favorable result because there was other evidence that documented Bookout's knowledge of the flooding as of 2002.
Tort Claims
As to the tort actions, Bookout contended on appeal that the flooding was a continuous nuisance and trespass, and therefore that the limitations period should restart every time flooding occurred. The trial court had found that the three-year limitations period ran only once beginning in 2002 and had expired by the time Bookout filed his complaint in 2006.
Under California
The Second District disagreed with Bookout that the flooding was a continuous nuisance. The court noted that there was "nothing to suggest the pipe [responsible for the flooding] is temporary or might be modified at any time." Because the flooding could not be freely discontinued or abated, the court found that that it did not qualify as a continuous nuisance. Instead, the court decided that the flooding was a permanent nuisance. It noted that previous cases had found permanent nuisances where "solid structures" were causing the harm. The court noted that the pipe and associated drainage system were solid structures, and that further supported its conclusion that the flooding was a permanent nuisance. Because the nuisance was permanent, the Second District held that the trial court had properly analyzed the limitations period and barred Bookout's tort claims.
Authored By:
Michael B. Wilmar
(415) 774-3242
MWilmar@sheppardmullin.com
and
Alex Merritt
(415) 774-3174
AMerritt@sheppardmullin.com
Sent: Wednesday, August 18, 2010 9:10 PM
To: 'MWilmar@sheppardmullin.com'
Cc: 'AMerritt@sheppardmullin.com'; 'John Belsher'; 'Greg Connell'; 'velie@calcoastnews.com'; 'rmiller@newtimesslo.com'; 'eslater@timespressrecorder.com'; 'ghooke@lepperlaw.com'; 'Wilson, Nick - SLO'; 'bmcewen@fresnobee.com'; 'bray@thetribunenews.com'; 'sduerr@thetribunenews.com'
Subject:
www.unitedstatessupremcourt.com www.unitedstatessupremecourt.net
www.senatorsamblakeslee.com
By Michael Wilmar and Alex Merritt
In William Bookout v. State of
The Exchange settled, but the other four defendants proceeded to trial. The trial was bifurcated, so that one court heard the inverse condemnation claims and a second heard the tort claims. The first trial court granted a nonsuit on the inverse condemnation claims. It determined that Bookout's cause of action had accrued sometime prior to the middle of 2002, and therefore his 2006 complaint was barred by a three-year statute of limitations. Furthermore, the court found that Bookout had failed to carry his burden of proof on causation as to all the defendants except the Railroad. However, the court also found that the Railroad was not properly subject to an action for inverse condemnation because it was not a public entity.
The second court heard the tort claims and granted the defendants' motion for judgment on the pleadings. The court took judicial notice of the first court's ruling, and under the doctrine of collateral estoppel, found that Bookout had failed to prove causation as to all the defendants except the Railroad. The court then granted judgment on the pleadings in favor of the Railroad on the basis that all the remaining causes of action against it were barred by a three-year statute of limitations.
On appeal to the Second District, Bookout argued that both trial courts had erred. He raised a number of legal arguments, but his key contention was that both courts had applied the wrong statute of limitations.
Inverse Condemnation Claims
As to the inverse condemnation claims, Bookout argued that the trial court had improperly applied a three-year statute of limitations when it should have applied a five-year statute of limitations. The trial court had applied Code of Civil Procedure section 338(j), which sets a three-year limitations period for an "action to recover for physical damage to private property" under the takings clause of the California Constitution. Bookout argued that the court should have applied Code of Civil Procedure sections 318 and 319, which set a five-year limitations period for an action for adverse possession.
In evaluating Bookout's argument, the Second District noted that "courts have applied the five-year statute where a public entity has physically entered and exercised dominion and control over some portion of the plaintiff's property." In contrast, courts have applied the three-year statute of limitations where the plaintiff's property was merely damaged. The court reasoned that the flooding did not trigger the five-year statute because "no public entity physically entered Bookout's land or maintained possession and control over any portion of it." Assuming the defendants were responsible for the flooding, they were merely damaging Bookout's nursery. Therefore, the Second District held that the trial court had properly applied the three-year statute of limitations.
Bookout argued that even if three years was the correct limitations period, his claim was not barred. To make this argument, Bookout advanced a "date of stabilization" theory. Under this theory, which finds support in Pierpont Inn v. State of California, 70 Cal.2d 282 (1969), where damages incident to a public improvement are continuous and repeated, the limitations period does not run until conditions have stabilized. Bookout argued that the flooding conditions were changing and unstable, and therefore that the limitations period had not yet started. The Second District rejected Bookout's argument, deferring to the trial court's finding that the flooding had been "relatively consistent and static" for several years before he bought the property.
In determining when the limitations period began to run, the trial court had relied in part on a questionnaire that Bookout submitted to the County in 2002 describing the flooding at his nursery. Bookout objected to the admission of the questionnaire because the County had not provided a copy to Booker at the time of discovery. The trial court admitted the questionnaire after finding that the County had not acted in bad faith and that Booker should have been aware of the questionnaire because he himself prepared it. The Second District found that the trial court's decision to admit the questionnaire was not an abuse of discretion. Moreover, the court found that even if the questionnaire had been excluded, Bookout was unlikely to have obtained a more favorable result because there was other evidence that documented Bookout's knowledge of the flooding as of 2002.
Tort Claims
As to the tort actions, Bookout contended on appeal that the flooding was a continuous nuisance and trespass, and therefore that the limitations period should restart every time flooding occurred. The trial court had found that the three-year limitations period ran only once beginning in 2002 and had expired by the time Bookout filed his complaint in 2006.
Under
The Second District disagreed with Bookout that the flooding was a continuous nuisance. The court noted that there was "nothing to suggest the pipe [responsible for the flooding] is temporary or might be modified at any time." Because the flooding could not be freely discontinued or abated, the court found that that it did not qualify as a continuous nuisance. Instead, the court decided that the flooding was a permanent nuisance. It noted that previous cases had found permanent nuisances where "solid structures" were causing the harm. The court noted that the pipe and associated drainage system were solid structures, and that further supported its conclusion that the flooding was a permanent nuisance. Because the nuisance was permanent, the Second District held that the trial court had properly analyzed the limitations period and barred Bookout's tort claims.
Authored By:
Michael B. Wilmar
(415) 774-3242
MWilmar@sheppardmullin.com
and
Alex Merritt
(415) 774-3174
AMerritt@sheppardmullin.com
The Supreme Court Of California needs to review why the Second Appellate Court Does Not Feel that Exhibit # 1756 Is Causation of our State Highway 1 Flooding! This OCSD Well # 8 Pipe Dredging Debris every day into this County, State, OCSD Storm Water Drainage Channel Should Not Be Permanent or Legal In the State of California for Government USE! The Supreme Court Of California will have to make a ruling as to if this use is legal in California per the Supreme Court of California rulings. Bookout v. State of California Supreme Court Appeal...
The Supreme Court Of California will need to review the Oceano Community Service District-and-Union Pacific Rail Road Exhibit # 1756 to the Second Appellate Court-As Stated:-"Because this is an established drainage channel. The District feels that its full design capacity should be available for use. Reserch, however has not clearly revealed the agency responsible for the maintenance of the channel. Consequently , we have no idea the condition of the channel and whether, in its present state of maintenance, it can adequately carry the quantity of water that will be discharged."
The Supreme Court Of California will need to review this video presented to Judge Tangeman and the Second Appellate Court Justices--Steven Z. Perren, Kenneth R, yegan and Arthur Gilbert.
1:16 The California Second Appellate Court Justices--Steven Z. Perren Kenneth R. Yegan and Arthur Gilbert Ignore California Case law as seen in this video presented to them and Superior Court Judge Martin J. Tangeman, per Akins v State (1998) 61 Cal.App.4th 1, Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, Belair v. Riverside County Flood Control District (1988) 47 Cal.3d 550, Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848, Lyles v. State of California (2007) 153 Cal.App.4th 281, Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596, Skoumbas v City of Orinda (2008) 165 Cal.App.4th 783, Marin v. City of San Rafael, supra, 111 Cal.App.3d at pp. 595-596.) Oceano Community Service District Well # 8 January 13, 2007 Video Presented to Judge Martin J. Tangeman now seen on YOUTUBE for all California Residents knowledge of Inverse Condemnation! Skoumbas v City of Orinda (2008) 165 Cal.App.4th 783
County Of San Luis E-Mail Deal and Withholding of Evidence The Second Appellate Court has allowed Caltrans to Raise and flood State Highway 1 13th and Paso Robles Streets in Oceano California since 2000 and then Grade and shovel debris into the Oceano Communities Storm Water Drainage Channel putting blame on a produce company for 1977 construction on Union Pacific Rail Road property! They Allow withholding of evidence stating "The Trial Court did not abuse its discreation."
Judge Martin J. Tangeman stated in a request for rehearing for a new trial about this evidence withheld from discovery and at the time of trial pertaining to Brebes and Davis statements September 12, 2008.---"No further information was forthcoming and now the questionnaires are here I guarantee they are voluminous, I haven't even read through all of them." "But I think it's imcumbent to demonstrate to the court exactly which factual assertation and which witness would actually produce evidence which would result in a basis for a new trial." County Discovery Abuse Brebes--Sutton per the Baughman Property--Highway 1 PDF File...
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."
Being an elected OCSD Director--Whistleblower in California Per the flooding of our State Highway-as seen in this March 1, 2007 E-Mail to Scott Radovich and the February 6, 2007 Clayton U. Hall letter To: Ms. Mauri McGuire, Carl Warren & Company CC-Rita L. Neal ESQ--Debra A Hessli-Risk Manager County of San Luis Obispo--Trying to Make A Deal in regards to the Evidence that they Withheld From Discovery involving their County Insurance. Plus their Documents presented to Judge Tangeman showing that Flooding Could Be Abated for $43,295.00---pdf County December 18, 2006 Statement-("Potentially Dangerious Situation") involves public safety to our Pacific Ocean!
Caltrans, County of San Luis Obispo and OCSD. California State Highway Patrol Put in Danger with flooding--Toxic Waste The Second Appellate Court Justices--Steven Z. Perren, Kenneth R. Yegan and Arthur Gilbert do not believe as seen in the video above, that the County, and Caltans storm water from State Highway 1 --13th and Paso Robles Streets inside the Oceano Nursery property is the use of a "Public Enity Physically entered Bookout's land or maintained possession and control over any portion of it." They Believe--"The Trial Court correctly concluded the three-year statute applies." The Second Appellate Court States this even after seeing photos and videos and hearing Caltrans testomony of their shoveling and grading Caltrans storm water debris into the Oceano Community's storm water drainage channel!
March 1, 2007 E-Mail "It is unfortunate that i'm the one that has to be the whistleblower on the County/State/OSD-Cover-up. This has had a Defamation on my reputation, tremendous financial losses and caused a stigma on my Business that will last forever. You initially took this case on a inverse condemnation assumption and I still feel, that's the case. P.O.V.E. and Union Pacific is purely irresponsible and negligent."
March 1, 2007 E-Mail County in 2007 Withholding of Evidence! "The County Of San Luis Obispo has withheld key information regarding flooding and prior actions of other agencies this has cost the County Tax payers thousands of dollars as drainage studies have been done without this information being provided."
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: "Plaintiff brought this action against a number of public entities and a railroad claiming the 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, the 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."
Second Appellate Court-Inverse Condemnation Train Wreck | Jun 28 2010 |
B214906 [PDF] [DOC] |
Bookout v. State ex rel. Dept. of Transportation CA2/6 filed 6/28/10 |
The Second Appellate Court Justices--Steven Z. Perren, Kenneth R. Yegan and Arthur Gilbert State on P. 6 and 7 ignoring documents from Brebes and Davis prior to State Highway 1 flooding--(Fountain Ave-Airpark Dr)! "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 Second Appellate Court call this a (Single) document instead of what Judge Martin J. Tangeman Stated September 12, 2008 in regards to some of these (Redacted) whiteness statements, questionnaires and evidence withheld from discovery below! "No further information was forthcoming and now the questionnaires are here I guarantee they are voluminous, I haven't even read through all of them." "But I think it's imcumbent to demonstrate to the court exactly which factual assertation and which witness would actually produce evidence which would result in a basis for a new trial." County Discovery Abuse Brebes--Sutton per the Baughman Property--Highway 1 PDF File...
The California Second Appellate Court Justices--Steven Z. Perren Kenneth R. Yegan and Arthur Gilbert have Ruled the actions Above and below are now Permanent and legal in California, per their Appellate Court Decision June 28, 2010! Each Justice is fully aware, that this flooding can be abated for only $43,295.00 Exhibit # 1790. They are aware of the documents above and below withheld from Discovery Exhibit # 579. They are aware of the OCSD Exhibit # 1756-Prescriptive Easement daily use of this drainage system for 2500 hundred gallons per minute of well water discharge as seen in this 1983 letter to the County of San Luis Obispo Rail-Road taking this drainage system. They are aware of the Video's of this pipe discharging debris into this drainage system since 2001 per exhibit # 1768! The County 1985 Approved and permitted--RR/POVE pond--mentioned on P. 2 and P. 6-Video P. 8 of their Appellate Court decision! They are aware of documents withheld by the County Of San Luis Obispo P. 6 and P. 7! The Appellate Court is aware that this drainage course was not changed by POVE per Caltrans Drainage Documents December 17, 1973 Exhibit # 1772 (Prejudicial Error) (Accrual Date) (Causation)
County of San Luis Obispo and Caltrans Liability to the Pacific Ocean
Plane Crashes San Luis Obispo County Airport Oceano-Flooding Second Appellate Court-Inverse Condemnation The County of San Luis Obispo Exhibit # 579 Documents withheld from discovery show how this drainage once traveld to the Oceano Airport in 2002 as stated in these County Questionnaires! These documents will ultimatly close the Oceano Airport when Caltrans and the County San Luis Obispo end using State Highway 1 for Storm Water Retention! YOUTUBE County Of San Luis E-Mail Deal and Withholding of Evidence California State Government (Caltrans, County, OCSD) should not be allowed to use our storm water drainage channels for their Debris and Well Water! These videos above were presented to Judge Martin J. Tangeman and the Second Appellate Court! Please read the following two PDF files regarding San Luis Obispo County and OCSD actions during discovery!
County of San Luis Obispo--Trying to Make A Deal in regards to the Evidence that they Withheld From Discovery involving their County Insurance. Plus their Documents presented to Judge Tangeman that Flooding Could Be Abated---pdf
OCSD Attorney Conflict Robert Weeks--Fiancee/Wife Was Oceano Nursery Bookkeeper that the Oceano Community Service District Hired knowing this Fact!---OCSD Directors Full Knowledge of Their Action!. pdf..
The Second Appellate Court does not find an (Abuse of Discretion) in their June 28, 2010 decision P. 6 and 7 or, that it is a Prejudicial Error for the County of San Luis Obispo-or Union Pacific Railroad to withhold 150 Oceano/County whiteness-plus photo/Questionnaires/ documents from discovery until after trial July 30, 2008! They allow Superior Court Judge Martin J. Tangeman to withhold photo attachments that went with Exhibit # 579 showing Caltrans maintaining the Oceano Communities Storm Water Drainage Channel--Raising State Highway 1 and blocking drainage on the East Side of State Highway 1!. The Second Appellate Court does not find this to be a Prejudicial Error in California!
The Second Appellate Court States Page. 7 and 8 of their June 28. 2010 decision "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. 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.) To carry that burden plaintiff must exclude the probability that other forces alone produced the injury. (Ibid.) " These YOUTUBE videos below show (Causation) Each State Senator and State Assembly Member is fully aware of these videos and Caltrans, County, OCSD use of this drainage system!
Train Wreck State Highway Patrol put in danger by Caltrans! Railroad Train Wreck Video talked about by the Appellate Court----Oceano Train Wreck as seen in photo exhibits withheld from discovery by the County Of San Luis Obispo in exhibit # 579! Caltrans Caught shoveling and grading debris into storm water drainage channel as seen by the California Second Appellate Court and San Luis Obispo Superior Court Judge Martin J. Tangeman!
