The SLO Superior Court stated regarding this photo evidence: ---"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."
Superior Court Judge Teresa Estrada-Mullaney in her February 2, 2009 Judgment Decision "Notice of Judgment" States: "Judge Tangeman determined the flooding problem was "static" for several years prior to Plaintiff's purchase of his property. Plaintiff contends the flooding is continuous and can be abated. Plaintiff argues Defendants negligent maintenance of the drainage system increases the frequency and severity of the flooding. That is inconsistent with Judge Tangeman's determination that the primary culprit was POVE's improvements, rather than negligent maintenance of the drainage system. There was no showing that Union's operation of Well No. 8 contributed to the blockage. There was no showing of the County's responsibility for maintaining the drainage channel. There was no evidence that any accumulated debris in State's right of way contributed to the problems in the operation of the drainage system. County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance"
The SLO Superior Court stated regarding this photo evidence: ---"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."
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Superior Court Judge Martin J. Tangeman has stated: "The "Date of Stabilization" approach does not apply in this case. The evidence showed that the last improvements made to the drainage systems were constructed by Pismo Oceano Vegetable Exchange ("POVE") in the late 1970s”
Court Reporter’s Transcript on Appeal
Wednesday, July 9, 2008 Volume I IX
Page 4. Mr. Belsher: This morning we filed an amended trial brief just focused on the Inverse Condemnation. It’s pretty much the same as the original trial brief. It’s pared down. Page 5. The Court: “And here’s the Plaintiff’s Supplemental Trial Brief.”
The Trial Court erred in their decision ignoring Arreola v. Monterey as stated to the trial court from opening statements! Page 18-19. “In 1983 OCSD wrote a letter to the parties here, saying, “We don’t know who should maintain this channel. So that we’re writing you this letter to let you know we’re going to dump water in there.”
“That’s been the attitude of all the parties. It’s nobody’s responsibility.”
“The only thing we’re sure of is that in the world of Inverse Condemnation, it’s Strict Liability if you use somebody’s property to satisfy your drainage system needs, and that’s what’s happened here.”
“There’s some argument, your honor, by the County, and I think by the Railroad, that some standard of reasonableness applies. We have briefed this issue to you in the Trial Brief. There’s no Reasonableness Standard. This is a strict Liability case. You only need to read Arreola, the case cited to you, to understand that.”
“And so the crux of this case is that these four parties have determined that it’s cheaper, easier, better to use Oceano Nursery as a detention basin than actually solving this problem. That’s a classic case of Inverse Condemnation, for which all four of these Defendants are liable.” “Thank You, Your Honor.”
The Court: All right. Who wants to argue first on behalf of the defendants?
Page 20 County of San Luis Obispo opening statement: “There have been hundreds of storms between 1985 and 2004, none of which flooded the plaintiff’s property.”
Page 20 Mr. Daner: “Your honor, Adam Daner on behalf of the Oceano Community Service District.”
“We also join in the Motion for Nonsuit. The additional ground is that in the opening statement, there’s been no evidence referred to of an overall public improvement such as to bring with it inverse condemnation liability. In light of that, and also with incorporating the arguments of previous counsel already, we also move for nonsuit.” Thank You.”
Page 21 The Court: Your argument is there’s no evidence of public improvement which have contributed to the –Which have been a substantial factor in contributing to this –These flooding events by OCSD?
Page 21 OCSD Mr. Daner States: “Correct, your honor. It’s our position that the only evidence is that the area in question is a natural water course and pursuant to the City of Locklin case, which we believe governs this action, there’s no citing of a public improvement such as to cause any liability on behalf of any of the public entities here today.”
Page 26-27 the Court acknowledges that this is not a natural drainage channel.
The Court: “What was moved in the 1960’s?” Mr. Belsher: “The inlet to the—off of Highway 1.” The Court: “The drainage channel marked on the map that you’ve shown me?” Mr. Belsher: “Exactly. This channel formerly entered at this location, and it was moved in the sixties to this location. So this is all in concert. This is part of the Caltrans Right-of-Way, including three to four feet of area here alongside the –Well, this is a denoted Right-of-Way. So a few feet inside the pavement is the Caltrans Right-Of-Way. I believe that’s undisputed. They may dispute whether the drainage channel was moved or not, but we have witnesses that speak to that this afternoon.”
Page 29. OCSD Mr. Daner States: “Your Honor, if I might, in terms of your list of cases to look at? Locklin v. City of Lafayette, (1994) 7 Cal.4th 327 is the leading case in both my brief, as well as the County’s brief, in terms of our previous trial briefs and their supplemental trial brief, what we believe is the controlling California Supreme Court Law.”
Page 29. The Court: “ And I‘ve read those. I don’t mean to by omission neglect all the cases that I’ve read, but I was focusing in particular on this argument which I had not previously focused in on, and that is, the Railroad – The basis for the railroad’s liability in inverse Condemnation; and therefore , the Cantu, the Breidert Cases, City of Manhattan Beach and these arguments. I have read Locklin at least three times.”
Page 30. The Court: “I have not yet read Arreola. I understand the argument that’s going on as to strict liability versus standard of reasonableness, in addition to the other arguments raised in Locklin in terms of substantial factor and appointment, Causation. I understand the argument with regard to specific events or nonspecific events. I was just meaning to focus in on Mr. Gregger’s specific arguments that I have not yet read anything on.”
Page 30. The County brings up Arreola that Judge Tangeman did not site in his decision? Ms. Thurmond: “Your Honor, while you’re looking at those cases, the Plaintiff’s supplemental Trial Brief does raise a new issue, the strict liability versus reasonableness.” The Court: “And Arreola Case.” Mrs. Thurmond: And Arreola, -- this has just come up. But if – If we’re going to use strict liability, there cannot be a drainage system. And then – so we’ve got to eliminate all the references and all the discussions about the drainage system because strict liability does not apply to a drainage system.”
“On the other Hand, if you’ve got a drainage system, you don’t have strict liability. You’ve got the rule of reason. So that is – That just came up this morning. But if we’re going to be reading cases and arguing anything about cases that have come up, and Arreola does – And Locklin both do address that, as does Paterno and Belair. I mean, they all do, so” Page 31 The Court: I understand those arguments. We’re going to get to those arguments.”
The San Luis Obispo Superior Court, September 12, 2008 changes their statements in their August 5, 2008 decision as they State in their final Decision. Page 2118 September 12, 2008
“The Court will acknowledge that I did not address all of the issues in the supplemental briefs and the reason for that was simply this: 631.8 is directed towards the issue as to weather there is a basis for dismissal on any several alternate grounds. Some of the issues I was not prepared to grant judgment on until I heard the defendant’s case. Some of the issues I was ready without the defendant’s case, those are the issues I address in the 631.8 ruling. So I’m going to deny the motion for new trial. I will deny the motion for reconsideration.”
The San Luis Superior Court had stated in their August 5, 2008 decision P. 2
This matter came for trial on July 9, 2008. Numerous witnesses testified and hundreds of exhibits were received in evidence. At the conclusion of Plaintiffs case, defendants, and each of them, made oral motions for judgment. After hearing arguments from counsel, the Court requested supplemental briefing on the statute of limitations, as well as Plaintiffs argument that Defendants had acquired certain property rights under the doctrine of prescriptive easements.”
“Now, after having considered all of the evidence submitted in this matter in Plaintiffs case-in-chief and, in addition, the supplemental declaration of Plaintiff, the legal arguments of counsel, and the pre-trial and post-trial briefs filed by the parties, the Court now rules as follows.”
“Defendants’ Motions are Governed by code of Civil procedure Section 631.8”
Page 1809 August 5, 2008 Volume VII The Court: “All Right. The Court has reviewed the matter extensively, including reviewing once again the Court’s notes of the trial, the briefs of the parties, exhibits, including both the briefs filed post trial and the briefs filed pretrial. Based upon the law, I have concluded that the issue of liability by the defendants for inverse Condemnation, which is the sole issue that has been tried to the Court, must be decided in favor of the defendants, and each of them, based upon the statute of limitations as well as other grounds which I have recited and explained at some length in a written decision which I am prepared to distribute to the parties. I have made copies of it.”
January 5, 2009 Judge Teresa Estrada Mullaney Notice of Ruling on Defendants’ Motions for Judgment on the pleadings Page 2: “Judge Tangeman decided that POVE was primarily responsible for the damage to plaintiff’s property. Their faulty construction work was the “substantial cause”, not any negligent drainage system maintenance by any of these defendants. See Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783”
February 2, 2009 Judge Teresa Estrada Mullaney Notice of Entry Of Judgment Page 13 “Causation” “County and State both move for judgment on the pleading based upon Judge Tangeman’s findings that there is no causation between acts of the County and the State and the flood damage suffered by Plaintiff. County contends the causation standard for Inverse Condemnation is “substantial factor,” rather than the “proximate cause” standard for general torts. Plaintiff, without offering any supporting authority, argues inverse condemnation requires “independent causation,” while nuisance and other torts allow for “concurrent causation.”
“The proper causation standard for inverse condemnation and other torts at issue in this case is the “substantial factor.” standard. In See Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783”
Prejudicial Error by the San Luis Obispo Superior Court, resulting in a miscarriage of justice!
The Trial Court would not comment or cite Arreola v. Monterey in their August 5, 2008 decision that now affects the Public Health and Safety of all San Luis Obispo County residents from State Highway 1 to the Pacific Ocean!
Arreola v. County of Monterey(2002) 99 Cal.App.4th 722.
Court Reporter’s Transcript on Appeal
Wednesday, July 9, 2008 Volume I IX
Page 4. Mr. Belsher: This morning we filed an amended trial brief just focused on the Inverse Condemnation. It’s pretty much the same as the original trial brief. It’s pared down. Page 5. The Court: “And here’s the Plaintiff’s Supplemental Trial Brief.”
The Trial Court erred in their decision ignoring Arreola v. Monterey as stated to the trial court from opening statements! Page 18-19. “In 1983 OCSD wrote a letter to the parties here, saying, “We don’t know who should maintain this channel. So that we’re writing you this letter to let you know we’re going to dump water in there.”
“That’s been the attitude of all the parties. It’s nobody’s responsibility.”
“The only thing we’re sure of is that in the world of Inverse Condemnation, it’s Strict Liability if you use somebody’s property to satisfy your drainage system needs, and that’s what’s happened here.”
“There’s some argument, your honor, by the County, and I think by the Railroad, that some standard of reasonableness applies. We have briefed this issue to you in the Trial Brief. There’s no Reasonableness Standard. This is a strict Liability case. You only need to read Arreola, the case cited to you, to understand that.”
“And so the crux of this case is that these four parties have determined that it’s cheaper, easier, better to use Oceano Nursery as a detention basin than actually solving this problem. That’s a classic case of Inverse Condemnation, for which all four of these Defendants are liable.” “Thank You, Your Honor.”
The Court: All right. Who wants to argue first on behalf of the defendants?
Page 20 County of San Luis Obispo opening statement: “There have been hundreds of storms between 1985 and 2004, none of which flooded the plaintiff’s property.”
Page 20 Mr. Daner: “Your honor, Adam Daner on behalf of the Oceano Community Service District.”
“We also join in the Motion for Nonsuit. The additional ground is that in the opening statement, there’s been no evidence referred to of an overall public improvement such as to bring with it inverse condemnation liability. In light of that, and also with incorporating the arguments of previous counsel already, we also move for nonsuit.” Thank You.”
Page 21 The Court: Your argument is there’s no evidence of public improvement which have contributed to the –Which have been a substantial factor in contributing to this –These flooding events by OCSD?
Page 21 OCSD Mr. Daner States: “Correct, your honor. It’s our position that the only evidence is that the area in question is a natural water course and pursuant to the City of Locklin case, which we believe governs this action, there’s no citing of a public improvement such as to cause any liability on behalf of any of the public entities here today.”
Page 26-27 the Court acknowledges that this is not a natural drainage channel.
The Court: “What was moved in the 1960’s?” Mr. Belsher: “The inlet to the—off of Highway 1.” The Court: “The drainage channel marked on the map that you’ve shown me?” Mr. Belsher: “Exactly. This channel formerly entered at this location, and it was moved in the sixties to this location. So this is all in concert. This is part of the Caltrans Right-of-Way, including three to four feet of area here alongside the –Well, this is a denoted Right-of-Way. So a few feet inside the pavement is the Caltrans Right-Of-Way. I believe that’s undisputed. They may dispute whether the drainage channel was moved or not, but we have witnesses that speak to that this afternoon.”
Page 29. OCSD Mr. Daner States: “Your Honor, if I might, in terms of your list of cases to look at? Locklin v. City of Lafayette, (1994) 7 Cal.4th 327 is the leading case in both my brief, as well as the County’s brief, in terms of our previous trial briefs and their supplemental trial brief, what we believe is the controlling California Supreme Court Law.”
Page 29. The Court: “ And I‘ve read those. I don’t mean to by omission neglect all the cases that I’ve read, but I was focusing in particular on this argument which I had not previously focused in on, and that is, the Railroad – The basis for the railroad’s liability in inverse Condemnation; and therefore , the Cantu, the Breidert Cases, City of Manhattan Beach and these arguments. I have read Locklin at least three times.”
Page 30. The Court: “I have not yet read Arreola. I understand the argument that’s going on as to strict liability versus standard of reasonableness, in addition to the other arguments raised in Locklin in terms of substantial factor and appointment, Causation. I understand the argument with regard to specific events or nonspecific events. I was just meaning to focus in on Mr. Gregger’s specific arguments that I have not yet read anything on.”
Page 30. The County brings up Arreola that Judge Tangeman did not site in his decision? Ms. Thurmond: “Your Honor, while you’re looking at those cases, the Plaintiff’s supplemental Trial Brief does raise a new issue, the strict liability versus reasonableness.” The Court: “And Arreola Case.” Mrs. Thurmond: And Arreola, -- this has just come up. But if – If we’re going to use strict liability, there cannot be a drainage system. And then – so we’ve got to eliminate all the references and all the discussions about the drainage system because strict liability does not apply to a drainage system.”
“On the other Hand, if you’ve got a drainage system, you don’t have strict liability. You’ve got the rule of reason. So that is – That just came up this morning. But if we’re going to be reading cases and arguing anything about cases that have come up, and Arreola does – And Locklin both do address that, as does Paterno and Belair. I mean, they all do, so” Page 31 The Court: I understand those arguments. We’re going to get to those arguments.”
The San Luis Obispo Superior Court, September 12, 2008 changes their statements in their August 5, 2008 decision as they State in their final Decision. Page 2118 September 12, 2008
“The Court will acknowledge that I did not address all of the issues in the supplemental briefs and the reason for that was simply this: 631.8 is directed towards the issue as to weather there is a basis for dismissal on any several alternate grounds. Some of the issues I was not prepared to grant judgment on until I heard the defendant’s case. Some of the issues I was ready without the defendant’s case, those are the issues I address in the 631.8 ruling. So I’m going to deny the motion for new trial. I will deny the motion for reconsideration.”
The San Luis Superior Court had stated in their August 5, 2008 decision P. 2
This matter came for trial on July 9, 2008. Numerous witnesses testified and hundreds of exhibits were received in evidence. At the conclusion of Plaintiffs case, defendants, and each of them, made oral motions for judgment. After hearing arguments from counsel, the Court requested supplemental briefing on the statute of limitations, as well as Plaintiffs argument that Defendants had acquired certain property rights under the doctrine of prescriptive easements.”
“Now, after having considered all of the evidence submitted in this matter in Plaintiffs case-in-chief and, in addition, the supplemental declaration of Plaintiff, the legal arguments of counsel, and the pre-trial and post-trial briefs filed by the parties, the Court now rules as follows.”
“Defendants’ Motions are Governed by code of Civil procedure Section 631.8”
Page 1809 August 5, 2008 Volume VII The Court: “All Right. The Court has reviewed the matter extensively, including reviewing once again the Court’s notes of the trial, the briefs of the parties, exhibits, including both the briefs filed post trial and the briefs filed pretrial. Based upon the law, I have concluded that the issue of liability by the defendants for inverse Condemnation, which is the sole issue that has been tried to the Court, must be decided in favor of the defendants, and each of them, based upon the statute of limitations as well as other grounds which I have recited and explained at some length in a written decision which I am prepared to distribute to the parties. I have made copies of it.”
January 5, 2009 Judge Teresa Estrada Mullaney Notice of Ruling on Defendants’ Motions for Judgment on the pleadings Page 2: “Judge Tangeman decided that POVE was primarily responsible for the damage to plaintiff’s property. Their faulty construction work was the “substantial cause”, not any negligent drainage system maintenance by any of these defendants. See Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783”
February 2, 2009 Judge Teresa Estrada Mullaney Notice of Entry Of Judgment Page 13 “Causation” “County and State both move for judgment on the pleading based upon Judge Tangeman’s findings that there is no causation between acts of the County and the State and the flood damage suffered by Plaintiff. County contends the causation standard for Inverse Condemnation is “substantial factor,” rather than the “proximate cause” standard for general torts. Plaintiff, without offering any supporting authority, argues inverse condemnation requires “independent causation,” while nuisance and other torts allow for “concurrent causation.”
“The proper causation standard for inverse condemnation and other torts at issue in this case is the “substantial factor.” standard. In See Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783”
Prejudicial Error by the San Luis Obispo Superior Court, resulting in a miscarriage of justice!
The Trial Court would not comment or cite Arreola v. Monterey in their August 5, 2008 decision that now affects the Public Health and Safety of all San Luis Obispo County residents from State Highway 1 to the Pacific Ocean!
Arreola v. County of Monterey(2002) 99 Cal.App.4th 722.
“We conclude that in order to prove
the type of governmental conduct that will support liability in inverse condemnation it is enough
to show that the entity was aware of the risk posed by its public improvement and deliberately
chose a course of action – or inaction – in the face of that known risk.” “Knowing that failure to
properly maintain the Project channel posed a significant risk of flooding, Counties nevertheless
permitted the channel to deteriorate over a long period of years by failing to take effective action
to overcome the fiscal, regulatory, and environmental impediments to keeping the Project channel
clear. This is sufficient evidence to support the trial court’s finding of a deliberate and
unreasonable plan of maintenance.” State diversion or obstruction of surface water onto land “not
historically subject to flooding” is not protected by reasonableness rule, but results in strict
liability.
The Trial Court did cite Skoumbas v. City of Orinda that had not been cited by Plaintiff or any of the defendants?
Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Diversion of surface waters into a natural watercourse creates liability only if it causes an unreasonable risk of harm under Locklin factors and is a substantial cause of damage. Flood control system that “fails in heavy rain and causes damage to property that has historically been subject to flooding” governed by rule of reasonableness. City could be liable even if its storm drainpipe discharged into a private pipe and the damage occurred “downstream.” “”We conclude the critical inquiry is not whether the entire system was a public improvement, but rather whether the City acted reasonably in its maintenance and control over those portions of the drainage system it does own.” “Substantial cause-and-effect relationship” is enough for liability even for downstream flooding.
Court Reporter’s Transcript on Appeal
Wednesday, July 9, 2008 Volume I IX
Nick Annecchini
Page 78 Question of Nick Annecchini. Question: You lived on that property? Answer: “Right.” Question: And what years did you live on that property? Answer: From ’35 to 38; and then I went into the service. After that, a little while.” Question: So after you came back from the service in and around what, 1946? Answer: “Yeah” Page 81 Question: This is about where the –The water from the Highway 1 used to drain? Answer: “Yep” Question: And that’s in a different place than it drains today? Answer “Yep”
Page 85 Question: Mr. Annecchini, this photograph is taken in 2000. That’s the new channel, as opposed to the old channel? Or can you—Can you identify that as the new location? Answer: Sure, because there was a bunkhouse there before.”
Page 37 Flooding on Fountain avenue and AirparkPage 60-65 Water level dispute exhibit # 579
Page 68-69 OCSD pipe in the inlet/ concrete bags put into drainage channel by Caltrans—David Fry
Page 152-153 OCSD Well # 8 running January 5, 2005 during a rain event.
Page 168 Ovelayment by Caltrans---Judge Tangeman
Page 170 Safety hazard in front of my Nursery.
Page 171 Construction in 2003
Page 172-173 description of how debris enters State Highway and Caltrans Maintenance of State Highway
Page 174 Caltrans installing Concrete bags
Page 174 Tree on Caltrans Property adjacent to the drainage channel.
Page 175-176 overlayment by Caltrans in 2006 objection over ruled P. 176
Page 178 Q. “And what were they doing?” A. “They were shoveling debris off of Highway 1 into the drainage channel.” Q. “You have video of this?” A. “I do.”
Page 180 manhole drainage elevation change
Page 181 the trial court acknowledges that Caltrans owns a 3-4 foot on the west side of State Highway 1.
Evidence admitted at the beginning of Trial and talked about on Pages 18 and 19! Exhibit # 1730 and 1756
Court Reporter’s Transcript on Appeal
Thursday, July 10, 2008 Volume II of IX
Direct Examination of Phil Davis OCSD
From the Court reporter transcript Thursday July 10, 2008 The San Luis Obispo Court heard the following testimony placing the OCSD pipe directly in the Railroads Storm Water Drainage Channel and not in the Vicinity as the Court had stated in their August 5, 2008 decision! Exhibit # 579 is tied directly into OCSD’s statements!
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 the culvert? Answer: “That’s correct.” Question: And is that an action which you and your staff took in 2002? Answer. “YES”
Page 390 July 10, 2008 Testimony by OCSD Employee see photo above. Question. Okay. Now, this is a picture, 1396, of you inspecting the entrance to the 20-inch culvert; correct? Answer. UH-UH. Question. Are you concerned at all that the operation of this pipe could blow leaves and other debris into the pipe during its operation? Answer. Um, well we wanted to check and make sure it didn't happen. Question. So what's your observation? Answer. We just look through the culvert. If you could see a culvert going a hundred feet, or whatever it goes, well it is fine. Page 391.Question. And did you observe debris blowing into this pipe on occasion? Answer. “Blowing into it.” Question from the operation of the discharge pipe? Answer. No Question Do you have any maintenance plan for the channel or the culvert with respect to debris? Answer. NO, WE DO NOT.”
Page 395-397 OCSD in 2001 begin drainage changes at inlet when tree falls on OCSD pipe with drainage maintenance at this time.
Page 400-401 OCSD Testimony: Question. March 23rd , 2005, it's a discussion of Joe and Max removing Eucalyptus Bark from in front of the culvert? Answer. Yes. Question. That would be the date of the photo that's on the screen, correct March 23rd, 08-- Answer. OH FIVE. PAGE 401-Question-Was that debris removed from the site or, as you said earlier, disposed at the top of the bank? Answer. I believe they Just threw it out with a pitch fork, on the bank.
Cross-Examination Mr. Gregger from the Rail Road. Page 103 Question. ”Well, looking at your Friday , December 20th, 2002, Daily log, it says,” “I had Dan saw off the six-inch pipe and end it five feet in front of the culvert.” He forgot to say as seen in the daily logs: (("So that there will be no danger of the pipe plugging debris at the entrance to the culvert." see San Luis Obispo Court Statement below!)) Answer. “Okay” Question. “Is that Dan in the picture?” Answer. “Yes I believe so.” Question. “Okay.” “Why did—why was the pipe cut off?” Answer. “It is in – I think Mr. Bookout thought that possibly the pipe going inside the culvert was restricting the flow.” Question. Mr. Davis, Sticking with you daily log, I'd like to draw your attention to the entry for December 9th, 2004. Answer. Okay. Question. Do you see where it says, "Joe Crawled down under the slab and said that the culvert is about one-third plugged, the last 20 feet or so next to P.O.V.E." Do you See That? Answer UH-HUH Question Is that the--- Refer to the section of pipe which leads from the railroad tracks to the junction box? Answer “Yes.”
Court Reporter’s Transcript on Appeal
Thursday, July 10, 2008 Volume II of IX
Direct Examination of Glenn Priddy County of San Luis Obispo
Page 309 Question. Are you aware of a drainage feature that would accept or transport water from those areas across Railroad Street? “Answer. “Only Railroad Street.”
Page 310-311 ties in with exhibit # 579 withheld form discovery. Answer. “that’s one of the possibilities.
Page 317 Answer. “Um, This is a Caltrans letter. Yes Yes, I did have meetings with Caltrans at the time.”
Page 318-234 Exhibit # 1760 shows problem to trial court that flooding could have been abated.
Page 330-331. Ties in fully with exhibit #579- "Are you aware of proposals for resolving the drainage problem at -- That we've referred to previously? Are you aware of proposals to resolve that problem dating back into the eighties?" Answer. Yes. Question. And have you raised issues with the respect to proposed solutions due to downstream impacts? Answer. “I have – There have been issues raised about potential downstream impacts since the eighties, and I –In the most recent discussions, I’ve pointed that out as something that needs to be looked at.” Ms Thurmond States: “Again, this is outside the water shed, not affecting Bill Bookout’s property.” --------See Exhibits Quotes Below 1785,1795, 1786,1788, 1789, 1796!
Page 331 Proposed solution!--------------County
Page332-335Baughman property comes up dealing with Exhibit #579
Page 334 Judge Tangeman Stated to the County Of San Luis Obispo (Glenn Priddy) "The problem area" being Highway 1 and 13th and Paso Robles." The County of San Luis Obispo responded P.335. "The problem--As far as fixing the drainage on the lot, the --The problem was the impact of the Fix on the Downstream Property owners, not that--something down there needed to be fixed in order to solve the problem upstream."
Page 342-345 Exhibit # 1743 offers to dedicate. Not accepted into evidence?
Page 348-349 the court talks about their views of strict liability or reasonable conduct? This then ties in with exhibit #579 withheld from discovery as the court states: “ But wouldn’t that only be relevant in the context of an affirmative action undertaken by the County to construct an improvement which created an unreasonable risk to a downstream owner, as opposed to a County or State’s negligence, failure to fulfill recommended actions? In other words, I’m not sure that it fits under liability theory under either one of the theories that you have mentioned. Tell me – Tell me where I’m wrong.” The authority’s asked for would be Arreola v. Monterery ---Skoumbas v. City of Orinda
Page 355 Exhibit #1756 Received Three pages. OCSD told Southern Pacific Railroad, County and POVE on April 21, 1983 in a letter "This Channel has been protected by use of a culvert that would conduct surface waters under Southern Pacific tracks to what may be a bunker under the loading docks of the Pismo-Oceano Vegetable Exchange (POVE) . The water, then, might flow to a small retention basin maintained by POVE." "Because this is an established drainage channel. The District feels that its full design capacity should be available for use. Research, however has not clearly revealed the agency responsible for the maintenance of the channel. Consequently, we have no idea the condition of the channel and weather, in its present state of maintenance; it can adequately carry the quantity of water that will be discharged."
Page 357 “Yes we worked with the Department of Transportation on a Caltrans Potential Project.”
Court Reporter’s Transcript on Appeal
Friday, July 11, 2008 Volume III IX
Direct Examination of POVE Dan Sutton
Page 604 Question. “How long have you been with POVE?” Answer. “I’ve been with POVE since August of 2001.”
Page 611-612 not a typical amount of debris
Page 620 Impact and discussion regarding flooding problem within last five years?
Page 626 the pond is never completely drained?-----
Page 634 Question. “When did you first meet Mr. Bookout?” Answer Um, hard question to answer. It might have been – I mean, I remember his nursery opening. It was probably ’03, ’02 or ’03 that I first talked to him.”
Page 636 Question by Mr. Gregger “Okay. And I will represent to you that Mr. Bookout opened the Nursery in 2001.” Answer. OK
Direct Examination of Caltrans Kelly Mckinley
Page 642-643 Caltrans performs Construction-the remove retaining wall and crown removal-grade corrections from a ponding issue on the east side of the Highway
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.
Page 651 admits sag point.
Page 652 Mr. Sullivan asks. “And were you involved in the construction of that project itself?” Answer “No, I was not.”
Page 653 hazard with wall as a fixed object that a vehicle could hit
Page 658 Question. “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.”
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Page 666 John brings up the subject of Dan Sutton beginning with POVE. Then the ponding problems I had been concerned about. Then first time meeting with Dan.
Page 669-670 Security Cameras
Page 686-689 ties into Exhibit # 579 Fountain Ave Airpark
Direct Examination of Caltrans Lance Gorman
Page 669 we were able to show that the drainage inlet had been changed. Ponding Problem
Page 728 ties into Exhibit # 579 lagoon and Airpark Drive.
Page 733 disagreement with County for responsibility?
Page 735 ties into Exhibit # 579 downstream impacts.
Page 737 Liability concerns out side of Caltrans right-of –way exhibit # 579?
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Court Reporter’s Transcript on Appeal
Monday, July 14, 2008 Volume IV IX
Direct Examination of Caltrans David Fry
The beginning of the Oceano Storm water drainage channel Historic Maintenance practice’s by Caltrans. Page 910 Question: Okay. And reaching back in time , when did you take over a supervisory role with respect to the Oceano area? Answer: I believe it was April of 2002.
Page 911 Admits responsibility for drainage inlet four feet
Page 912 Caltrans admits occasional cleaning of drainage channel with installing concrete bags at inlet on private property. Answer. “I know that Caltrans has on occasion gone in and cleaned it out. I know that at one point, I directed someone to place concrete sacks underneath the lip of the culvert in front – In front of the culvert. Outside of that, we really don’t have any –We don’t have any business being out there because it’s private property.” Caltrans admits Exhibit #1467 being a Caltrans loader outside of Caltrans four foot right-of-way in 2000. Question. And this photograph is dated 2000. You, of course were not a Supervisor or a worker in the year 2000; correct? Answer: Right. Page 913 Question And do you have any knowledge of other occasions where Caltrans may have undertaken maintenance of this type using heavy equipment? Answer. I have no personal knowledge of it. It may have happened, but I don’t –I don’t know for sure.”
Page 916-917 Question. Mr. Fry, Exhibit # 1475 on the screen there is the same as Exhibit 11 in your deposition transcript. Can you describe for me the materials that you see here on Highway 1? Answer. “I see Dirt, Water, Eucalyptus Leaves and Seed Pods from the Eucalyptus.” Question. Now in your practice as a Maintenance Supervisor and as a lead worker, has it consistently been your practice to somehow, I guess, blade this material to the side of the road? Answer. “YES. When – When it gets in this condition, we come down with a plow truck and we plow it back off the road. Sometimes we plow it to the gutter and come back later and pick it up. Sometimes we plow it behind the curb and either roll it in with the truck or leave it behind, just leave it behind the curb where it came from.”
Page 917-918 Question. “Based on your personal observations, has a substantial amount of material entered onto the Highway as depicted in 1475 following the removal of the concrete wall?” THE COURT: I’ll allow that Question. Answer. “Yes, I believe that the dirt came from the bank.” Question. “Due you have any problem at all with sediment buildup in the mouth of the channel?” Page. 919 Answer. Sediment? Not so much sediment as Eucalyptus bark. There is some sediment, Yes.
Question. “Fifteen Seventeen, that’s a picture of you, isn’t it, Mr. Fry.” Answer. “I believe it is. I can’t see my face.” Question. “Do you recognize that as the entrance to the drainage channel?” Answer. “YES”
Page 920-921 Caltrans shoveling debris into their four foot right-of –way Question. “Is this anything related to the buildup of sediment at the mouth of the drainage channel?” Answer. “Well it’s more grass. Well, Yeah, sediment and grass.” Question. And where’s this material removed to when you engaged in this particular activity? Answer. “Based on the Mud behind me at the base of the tree, I would say we where throwing it up on the bank.” Question. So you were keeping it in the four feet that you consider to be Caltrans right-of-way? Answer. “YES” Question. And how often have you engaged – You or your staff engaged in the particular activity? Answer. “How often does it rain down there?” Question. Is it fairly often – Answer. “YES” Question. Based on the rainfall? Answer. “YES, just about every time it rains.”
Question. Go back to 1515. Let me show you 1515 and 1514 and 1513. Those three photos, are those Caltrans workers? “Yes.” And what activity are they engaged in, if it’s any different then what you just showed? Answer. Can you go back? I really can’t tell what they’re doing there. Question. Okay. Which one would you like to look at? Answer. All three of them. Question. Okay. Answer. “I’m not sure what they’re doing in this picture. It appears that they’re throwing dirt up on the bank at the base of the tree.”
Page 929 Cross Examination by Mr. Sullivan:
Page 931 regarding exhibit # 579 Caltrans talks about their construction and drainage change in the drainage channel in December 2002 as seen in exhibit #579. Answer. “Mr. Bookout called me and asked me if I could come down and look at the pipe that – A pipe that was inserted into the entrance of the culvert. So we went down there. I met with Mr. Bookout, and I also met with Phil Davis from the Oceano Community Service District. and Mr. Bookout’s concern was that the pipe was blocking the entrance and, basically, the volume of the pipe. The --The Community Service District pipe was taking up some of the space the water could flow through the culvert.” Question. Okay. Answer. “So his request was that the Oceano Community Services District cut the four-inch water pipe, shorten it so that it didn’t actually go into the entrance to the culvert.” Question. Was that done?
Answer. “That was done And when we were discussing that, I suggested that they put concrete sacks at the bottom, you know, in the bottom underneath the culvert pipe coming out a few feet, so they didn’t create a wetlands there. Because , basically, dumping extra water into the culvert -–I don’t know how often OCSD flushes their water tank, but by adding extra water, if that was wet all year-round, you’d have Tules growing there and it would create a wet lands.” So by placing something solid underneath it, then you would avoid that issue, because once that issue arises, then there’s a whole new – A whole new can of worms.” Question. Additional problems? Answer. “Additional problems, Yes.” Question Regarding what level – What types of maintenance activities could be done in wetlands; Is that correct? Answer. “Correct.”
Page933 exhibit# 1892?????
Page 934 Caltrans States squaring the blade at drainage channel Exhibit # 1892? “When he goes through that, it would push material to the right. When he comes –We do that to get the material off of the travel way or off of the main part of the road. When he would come to the opening, he would square the blade up so it’s perpendicular to the truck, go right through that drainage opening, and then heel it to the right again, and keep carrying material to the right.” Question. Is that done so that material won’t be pushed from the road into the opening of the channel? Answer. “RIGHT”
Page 936 regarding exhibit # 579 Question. “Now, the – we saw earlier a photograph of a Caltrans loader, as you described it , actually in the channel. Do you have – I mean, can you tell us why that was done? To your understanding , why that would have been done?” Answer. “I would imagine that the loader was working in the area. The employee who was running the loader was probably a conscientious employee and wanted to try to help.”
Question. Do you have a problem with your employees doing “Good Neighbor” sort of deeds like that?” Answer. “NO, we do – We try to do that when we can.”
Page 941Question. You worked in this area in ’95 and ’98; Correct? Answer. Right. Question. And then 2000 to today – Answer. “Correct” Question You’re responsible for that area? THE COURT: That’ 2002 to today. Mr. Sullivan: I’m sorry, 2002 Thank You.
Page 955 Caltrans concern of drainage channel becoming a wet lands from the Oceano Community Service District PVC pipe in drainage channel! Okay. You indicated you had a concern about the drainage channel turning into a wetland of some type? Answer: Right. Question: And you expressed that at or about the time the sandbags were installed? Answer: Right. Question: Incidentally, I didn’t quite clearly hear. Did you have Caltrans workers place those sandbags at the base of the culvert? Answer: “I believe we did, yes.”
Judge Tangemen in his decision August 5, 2008 stated that: "Mr. Fry testified that any work undertaken by Cal Trans employees in the channel to help clear the channel were most likely undertaken solely as a "good neighbor" practice by a "conscientious employee”
Good Neighbor was stated by Mr. Sullivan not Mr. Fry? Judge Tangeman used this page 10 in his decision regarding PRESCRIPTIVE EASEMENT? I BELIEVE THIS WOULD BE A PREJEDICAL ERROR?
The San Luis Obispo Superior Court misheard the testimony as truly stated by Caltrans: “I would imagine that the loader was working in the area. The employee who was running the loader was probably a conscientious employee and wanted to try to help.”
In the documents and photos withheld from Discovery Exhibit # 579 by the County of San Luis Obispo, Caltrans is seen in 2002 and prior using a loader to remove debris from the Oceano Community’s Storm Water Drainage Channel.
The State of California, Caltrans at trial Stated Page 921, July 14, 2008 regarding their new maintenance practice’s of shoveling dirt inside the Oceano Community’s Storm Water drainage channel: “I’m not sure what they’re doing in this picture. It appears that they’re throwing dirt up on the bank at the base of the tree.” On page 920 Caltrans was asked regarding their shoveling debris into their four foot right-of –way Question: “Is this anything related to the buildup of sediment at the mouth of the drainage channel?” Answer. “Well it’s more grass. Well, Yeah, sediment and grass.” Question: And where’s this material removed to when you engaged in this particular activity? Answer. “Based on the Mud behind me at the base of the tree, I would say we where throwing it up on the bank.” Question: So you were keeping it in the four feet that you consider to be Caltrans right-of-way? Answer. “YES” Question: And how often have you engaged – You or your staff engaged in the particular activity? Answer. “How often does it rain down there?” Question: Is it fairly often – Answer: “YES” Question: Based on the rainfall. Answer. “YES, just about every time it rains.”
Caltrans, actions after the San Luis Obispo Superior Courts decision August 5, 2009 affecting public heath and Safety as Caltrans stated at trial. “I’m not sure what they’re doing in this picture. It appears that they’re throwing dirt up on the bank at the base of the tree.”
Notice the Debris Caltrans shoveled during this rain event into this storm water drainage channel as Caltrans had stated at trial Question: So you were keeping it in the four feet that you consider to be Caltrans right-of-way? Answer. “YES” Question: And how often have you engaged – You or your staff engaged in the particular activity? Answer. “How often does it rain down there?” Question: Is it fairly often – Answer: “YES” Question: Based on the rainfall. Answer. “YES, just about every time it rains.”
Court Reporter’s Transcript on Appeal
Monday, July 14, 2008 Volume IV IX
Direct Examination of Union Pacific Railroad Javier Sanchez
Page 971 Question “Okay. Now, do you perform any maintenance activities on that culvert?” Answer. We haven’t no.”
Page 979 Responsibility!
Court Reporter’s Transcript on Appeal
Monday, July 14, 2008 Volume IV IX
Direct Examination of Bookout
Page 1002-1027 Bookout flood video 1003 1017 Caltrans shoveling debris, OCSD admitted into evidence exhibit # 1816
Page 1211 Time line and flooding from the back.
Page 1017-Security Cameras
Page 1025 Judge Tangeman States: “I know that what I’m going to -- I am anticipating a number of arguments as to various theories of liability under Arreola and Locklin and Bunch and the other cases.
Court Reporter’s Transcript on Appeal
Tuesday, July 15, 2008 Volume V IX
Direct Examination of Bookout
Page 1203-1208 Security Cameras
Page 1210 prior to the flooding in 2004 the ponding in front of my property is discussed Question. “So you had some water at the front of your Nursery; that would be from Highway 1 flooding circumstance? P.1211 Answer. “There was water in 2002 that crossed Highway 1, but didn’t really come in my property.”
Cross- Examination of Bookout
State of California, Caltrans Page 1217 Question “You still do. Isn’t it true that every time your property was flooded – As reflected in the time line of 1867, every time your property was flooded, Highway 1 was flooded? Answer. “I had some intrusion from the back of my property.”
Union Pacific Railroad Page 1219 Exhibit # 579 is introduced. (“Photographs of the flooding would be very helpful to us.”) There where several Photos with this exhibit that where not introduced and withheld from trial. The County of San Luis Obispo disclosed these photos December 2, 2008 after trial.
Page 1221 Question. “Now, you mentioned a moment ago you had damage to inventory as a result of flooding prior to 2004. Can you please describe that damage. Answer. “We had a gentleman building prop –Building a house behind my property, and the County allowed him to divert water through the alleyway.” The County then objects to testimony. MS Thurmond: Objection; speculation, assumes facts not in evidence, no foundation as to “County Allowed.”
Page 1222 I begin again stating. “The County inspected the alleyway after the” At which time the County then objects again stating. “MS. Thurmond: Objection; calls for facts not in evidence, speculation, no foundation as to “County Inspected.”
Page 1226 The Court admits three pages “Another question is, I’m not sure we laid a foundation as to anything more than the first page. I don’t know what the second and third pages are.” Page 1227 The Court States “Oh, I think a foundation was laid as to pages 1 and 2. I do note that page 2 is referenced in page 1. But page 3 we didn’t address.” Mr. Gregger then talks about Photographs! Mr. Gregger States. “And for the purpose of the exhibits we don’t need the photographs.” The Court “All Right------
Exhibit # 579 presented July 15, 2008 was not admitted in discovery or into evidence until July 16, 2008 Page 1618 exhibit # 579 was without all of the photos and written statements that went with this exhibit? The County of San Luis Obispo did not provide the photo’s below until December 2, 2008 after proper discovery and the documents that they had provided July 30, 2008.
Judge Tangeman Stated page 1226 “Another question is, I’m not sure we laid a foundation as to anything more than the first page. I don’t know what the second and third pages are.” Page 1227 The Court States “Oh, I think a foundation was laid as to pages 1 and 2. I do note that page 2 is referenced in page 1. But page 3 we didn’t address.” The Railroad then states: “And for the purpose of the exhibits we don’t need the photographs.” The Court “All Right------
Court Reporter’s Transcript on Appeal
Tuesday, July 15, 2008 Volume V IX
Direct Examination of Keith Crowe
Page 1263 Keith Crowe talks about County document requiring POVE to raise drainage outlet.
Page 1272 -1280 Keith Crowe sums up everything with OCSD
Court Reporter’s Transcript on Appeal
Wednesday, July 16, 2008 Volume VI IX
Direct Examination of Caltrans Fred Brebs
Page 1504 Stated, Superintendent of Maintenance from 1996-2002.
Page 1506 Caltrans admits information in exhibit # 1794 Question: There’s no title, but I assume from your description, you were a supervisor of maintenance at this time? Answer: “Yes. I didn’t generate this document . I – I don’t know if you care about that. This is my name. This information I provided that’s here.” Question: so this is information that you gathered and that’s represented on this document? Answer: “Yes” Question: And it concerns the years 1983 through 1987. These are years in which you were a Supervisor of Maintenance for Caltrans? Answer “Yes.” Question: And did – And 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.” Question and are those Maintenance occasions set forth in part or in whole on those collection of dates that’s represented on Exhibit 1794? Answer: “Yes.”
Page 1507 Question So when we look at your – The Exhibit 1794 that we were just reviewing, “Clean Ditch With A Loader,” We refer to that type of equipment? Answer: “Yes.” Page 1508 Question 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 than one occasion? Answer: “Yeah –Yes, I would say yes.” Question: So was this a part of the maintenance that you oversaw as Supervisor during those years, ’83 through ’88? Answer: “Yes”
Page 1509 Question: by Mr. Belsher: Did you instruct your employees on maintenance activities with respect to the channel that’s depicted in 1467? Answer: “Yes.” Question And did you ask them to remove debris from that channel that’s depicted in 1467? Answer: “In these years, I was superintendent and I was in Santa Maria, and my supervisors, you know, directed that work.” Question: Okay. And do you recall that –stick that. And who were your supervisors during those years? Answer: “Jim Grashia (Phonetic) And David Fry.” 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.”
1512 Question: Now , in your years as Supervisor or a superintendent, do you ever recall obtaining permission from the railroad to enter into the culvert that runs off of 13th street? Answer: “Into the culvert at 13th street? No.” Question: Or into the channel, I’m sorry. The answer is “No”? 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 anbody at that point in time in terms of entering-- Answer: “For 13th Street? No.” Mr. Belsher: I have no further questions, your honor.
Exhibit #579 Presented July 15, 2008 Photos of Caltrans/Brebs Raising State Highway 1 in the summer of 2002 where not provided by the County or the Railroad before or during trial as stated by the Court and Railroad! Mr. Gregger States: “And for the purpose of the exhibits we don’t need the photographs.” The Court “All Right”
Court Reporter’s Transcript on Appeal
Wednesday, July 16, 2008 Volume VI IX
County intentionally withholding evidence from Discovery
New Evidence exhibit photos with 150 potential whiteness stating that there had not been any flooding of Oceano Nursery as exhibit #579 was withheld from discovery by the County of San Luis Obispo along with photos of Caltrans, Construction since 2000 with their drainage changes in 2002. Exhibit #579 was not available for examination of Keith Crowe or Caltrans, Fred Brebs. This evidence referenced the flooding/ponding on the eastside of State Highway 1 in which Fred Brebes had personal knowledge of. The Trial Court did had not address-- . But page 3 we didn’t address.” The Railroad then states: “And for the purpose of the exhibits we don’t need the photographs.” The Court States “All Right------
Page 1617 July 16, 2008 The Trial Court asked regarding exhibit # 579 withheld by the County of San Luis Obispo from Discovery. “The Court: Do you have any basis for a claim that the parties combined in bad faith to accomplish this result?
Mr. Belsher: “Only what I’m suggesting happened and was described.”
The Court: “You mean the fact that they used a United Front? Do you have any other evidence or information that they have, through combination of efforts, subverted the discovery process in concealing documents?”
Page 1620 Rainfall data regarding our foundation with no objection or argument regarding this evidence. Something is missing?
Page 1627 County of San Luis Obispo Argument States: “There’s no evidence that the conditions have changed between his purchase of the property and the present let alone 2002 and the present. So, one way or the other, the defendant is entitled to Nonsuit.” The Trial Court has still not addressed P. 3 or the other documents withheld from discovery that shows the County of San Luis Opening statement to be false!
Page 1628 County of San Luis Obispo Argument. The photo evidence withheld from discovery and trial in exhibit #579 shows the county’s statement to be incorrect. Ms. Thurmond. “There’s no evidence at all that the impervious surface area increased. We know that paving occurred sometime after 1894. There’s no evidence of any worsening from any time to any time other than 19 – or excuse me, 1894 to the present. And let alone from 2000, when Mr. Bookout’s purchased the property, to the present, or 2000 to 2004 when Mr. Bookout’s alleged that he suffered his first flooding incident.”
Ms. Thurmond. “There was no evidence at all, no quantitative evidence as to the decrease in storage volume at the inlet.” Exhibit # 579 photos withheld from discovery and Caltrans CausationTestimony July 14, 2008 by David Fry in regards to drainage changes made by him since 2002! Question. “Is this anything related to the buildup of sediment at the mouth of the drainage channel?” Answer. “Well it’s more grass. Well, Yeah, sediment and grass.” Question. And where’s this material removed to when you engaged in this particular activity? Answer. “Based on the Mud behind me at the base of the tree, I would say we where throwing it up on the bank.” Question. So you were keeping it in the four feet that you consider to be Caltrans right-of-way? Answer. “YES” Question. And how often have you engaged – You or your staff engaged in the particular activity? Answer. “How often does it rain down there?” Question. Is it fairly often – Answer. “YES” Question. Based on the rainfall? Answer. “YES, just about every time it rains.”
Caltrans Mr. Sullivan stated Page 1633 against photo evidence exhibit # 579 withheld from discovery. “There is in and among the factors that he listed, as opposed to the State of California’s decrease in storage volume at the inlet. There’s no evidence of – Of any raised ground in terms of raising the height of State Route 1. And Ms. Thurmond somewhat covered this, in that nothing has changed since’04 and I believe she actually referenced the –The only evidence was that this road had been paved since 1894.”
Union Pacific Railroad Mr. Gregger Page 1638 Refers to the Arreola Case Law. “That doesn’t support a cause of action for Inverse Condemnation, and that’s -- That’s in the Arreola case which is cited in the various parties’ moving papers.” “The only evidence that has been introduced was that we arguably were negligent in not undertaking enough maintenance, and that’s not enough for an inverse claim.”
Page 1647 County or Caltrans?
Court Reporter’s Transcript on Appeal
Tuesday, August 5, 2008 Volume VI IX
Page 1806 Evidence Code # 1270 and 1271 Exhibits 1776, 1779, 1780, 1785, 1788, 1789 and 1796 not allowed into evidence. The Court: What are the Exhibits? Let’s find out if they continue to draw an objection. Mr. Connell: It’s 1776, 1779, 1780, 1785, 1788, 1789 and 1796.
Page 1809 The Court: “All Right. The Court has reviewed the matter extensively, including reviewing once again the Court’s notes of the trial, the briefs of the parties, exhibits, including both the briefs filed post trial and the brieifs filed pretrial. Based upon the law, I have concluded that the issue of liability by the defendants for inverse Condemnation, which is the sole issue that has been tried to the Court, must be decided in favor of the defendants, and each of them, based upon the statute of limitations as well as other grounds which I have recited and explained at some length in a written decision which I am prepared to distribute to the parties. I have made copies of it.”
Court Reporter’s Transcript on Appeal
September 12, 2008 Volume VIII
Motion for Re-Consideration
Exhibits presented to trial Court, that should have been included with Exhibit #579 withheld by the County of San Luis Obispo from Discovery and Trial.
Page 2106 shows Questionnaires that were provided July 30th without photos as the Railroad had previously stated July 15, 2008: “And for the purpose of the exhibits we don’t need the photographs.” The Court States “All Right------
Page 2107-2108 John Belsher States to the court regarding evidence withheld from discovery. “Now the County takes the position well, we should have somehow gotten the statements some other way. I don’t know what that other way is other than to ask directly in discovery twice for these statements and failed to get them.
So two parts to this motion. One in which was briefed, the element of unfairness to this defendant having to deal with this exhibit which is the unified defense sprung on us at trial. And, two, the fact that the County withheld important evidence that could have made a difference to this plaintiff at trial.
Page 2108 “so on July 30th is when we received these questionnaires . So we do not have the benefit of these questionnaires in responding to the court’s allowance for an offer of proof. So therefore I had no ability to make an offer of proof in response to those statements.”
Page 2109 “ There’s an absence of the court’s addressing authorities cited by plaintiff Blau Versus City of L.A. On concurrent causation. And reliance by the court on flood control case despite the testimony by County witnesses and others that this is not a flood case, that this is a drainage case. There was no comment by the Court under Marin Versus City of San Rafael as to the County’s participation in the permitting of the POVE facilities.”
Page 2118 The Trial Court States regarding their directed verdict without paying attention to the evidence presented to the court.
“The Court will acknowledge that I did not address all of the issues in the supplemental briefs and the reason for that was simply this: 631.8 is directed towards the issue as to weather there is a basis for dismissal on any several alternate grounds. Some of the issues I was not preparied to grant judgment on until I heard the defendant’s case. Some of the issues I was ready without the defendant’s case, those are the issues I address in the 631.8 ruling. So I’m going to deny the motion for new trial. I will deny the motion for reconsideration.”
Court Reporter’s Transcript on Appeal
November 6, 2008 Volume IX
Page 2401-2423 regarding date of Stabilization.
Page 2426 The County of San Luis Obispo summarized the San Luis Obispo Superior Courts decision August 5, 2008 stating.
MS. Thurman: “The LEE case cited by plaintiff, that is a good example of the stabilization type argument where there was continuing to cause ever-changing damage. In this case, again Judge Tangeman specifically found no changes have been made since the ‘70s and that the flooding was static throughout the years.” “So the date of stabilization that a reasonable person would be appreciative of the damage doesn’t matter. It was all prior to 2001 in this case. No evidence of any difference.”
the type of governmental conduct that will support liability in inverse condemnation it is enough
to show that the entity was aware of the risk posed by its public improvement and deliberately
chose a course of action – or inaction – in the face of that known risk.” “Knowing that failure to
properly maintain the Project channel posed a significant risk of flooding, Counties nevertheless
permitted the channel to deteriorate over a long period of years by failing to take effective action
to overcome the fiscal, regulatory, and environmental impediments to keeping the Project channel
clear. This is sufficient evidence to support the trial court’s finding of a deliberate and
unreasonable plan of maintenance.” State diversion or obstruction of surface water onto land “not
historically subject to flooding” is not protected by reasonableness rule, but results in strict
liability.
The Trial Court did cite Skoumbas v. City of Orinda that had not been cited by Plaintiff or any of the defendants?
Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Diversion of surface waters into a natural watercourse creates liability only if it causes an unreasonable risk of harm under Locklin factors and is a substantial cause of damage. Flood control system that “fails in heavy rain and causes damage to property that has historically been subject to flooding” governed by rule of reasonableness. City could be liable even if its storm drainpipe discharged into a private pipe and the damage occurred “downstream.” “”We conclude the critical inquiry is not whether the entire system was a public improvement, but rather whether the City acted reasonably in its maintenance and control over those portions of the drainage system it does own.” “Substantial cause-and-effect relationship” is enough for liability even for downstream flooding.
Court Reporter’s Transcript on Appeal
Wednesday, July 9, 2008 Volume I IX
Nick Annecchini
Page 78 Question of Nick Annecchini. Question: You lived on that property? Answer: “Right.” Question: And what years did you live on that property? Answer: From ’35 to 38; and then I went into the service. After that, a little while.” Question: So after you came back from the service in and around what, 1946? Answer: “Yeah” Page 81 Question: This is about where the –The water from the Highway 1 used to drain? Answer: “Yep” Question: And that’s in a different place than it drains today? Answer “Yep”
Page 85 Question: Mr. Annecchini, this photograph is taken in 2000. That’s the new channel, as opposed to the old channel? Or can you—Can you identify that as the new location? Answer: Sure, because there was a bunkhouse there before.”
Page 37 Flooding on Fountain avenue and AirparkPage 60-65 Water level dispute exhibit # 579
Page 68-69 OCSD pipe in the inlet/ concrete bags put into drainage channel by Caltrans—David Fry
Page 152-153 OCSD Well # 8 running January 5, 2005 during a rain event.
Page 168 Ovelayment by Caltrans---Judge Tangeman
Page 170 Safety hazard in front of my Nursery.
Page 171 Construction in 2003
Page 172-173 description of how debris enters State Highway and Caltrans Maintenance of State Highway
Page 174 Caltrans installing Concrete bags
Page 174 Tree on Caltrans Property adjacent to the drainage channel.
Page 175-176 overlayment by Caltrans in 2006 objection over ruled P. 176
Page 178 Q. “And what were they doing?” A. “They were shoveling debris off of Highway 1 into the drainage channel.” Q. “You have video of this?” A. “I do.”
Page 180 manhole drainage elevation change
Page 181 the trial court acknowledges that Caltrans owns a 3-4 foot on the west side of State Highway 1.
Evidence admitted at the beginning of Trial and talked about on Pages 18 and 19! Exhibit # 1730 and 1756
Court Reporter’s Transcript on Appeal
Thursday, July 10, 2008 Volume II of IX
Direct Examination of Phil Davis OCSD
From the Court reporter transcript Thursday July 10, 2008 The San Luis Obispo Court heard the following testimony placing the OCSD pipe directly in the Railroads Storm Water Drainage Channel and not in the Vicinity as the Court had stated in their August 5, 2008 decision! Exhibit # 579 is tied directly into OCSD’s statements!
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 the culvert? Answer: “That’s correct.” Question: And is that an action which you and your staff took in 2002? Answer. “YES”
Page 390 July 10, 2008 Testimony by OCSD Employee see photo above. Question. Okay. Now, this is a picture, 1396, of you inspecting the entrance to the 20-inch culvert; correct? Answer. UH-UH. Question. Are you concerned at all that the operation of this pipe could blow leaves and other debris into the pipe during its operation? Answer. Um, well we wanted to check and make sure it didn't happen. Question. So what's your observation? Answer. We just look through the culvert. If you could see a culvert going a hundred feet, or whatever it goes, well it is fine. Page 391.Question. And did you observe debris blowing into this pipe on occasion? Answer. “Blowing into it.” Question from the operation of the discharge pipe? Answer. No Question Do you have any maintenance plan for the channel or the culvert with respect to debris? Answer. NO, WE DO NOT.”
Page 395-397 OCSD in 2001 begin drainage changes at inlet when tree falls on OCSD pipe with drainage maintenance at this time.
Page 400-401 OCSD Testimony: Question. March 23rd , 2005, it's a discussion of Joe and Max removing Eucalyptus Bark from in front of the culvert? Answer. Yes. Question. That would be the date of the photo that's on the screen, correct March 23rd, 08-- Answer. OH FIVE. PAGE 401-Question-Was that debris removed from the site or, as you said earlier, disposed at the top of the bank? Answer. I believe they Just threw it out with a pitch fork, on the bank.
Cross-Examination Mr. Gregger from the Rail Road. Page 103 Question. ”Well, looking at your Friday , December 20th, 2002, Daily log, it says,” “I had Dan saw off the six-inch pipe and end it five feet in front of the culvert.” He forgot to say as seen in the daily logs: (("So that there will be no danger of the pipe plugging debris at the entrance to the culvert." see San Luis Obispo Court Statement below!)) Answer. “Okay” Question. “Is that Dan in the picture?” Answer. “Yes I believe so.” Question. “Okay.” “Why did—why was the pipe cut off?” Answer. “It is in – I think Mr. Bookout thought that possibly the pipe going inside the culvert was restricting the flow.” Question. Mr. Davis, Sticking with you daily log, I'd like to draw your attention to the entry for December 9th, 2004. Answer. Okay. Question. Do you see where it says, "Joe Crawled down under the slab and said that the culvert is about one-third plugged, the last 20 feet or so next to P.O.V.E." Do you See That? Answer UH-HUH Question Is that the--- Refer to the section of pipe which leads from the railroad tracks to the junction box? Answer “Yes.”
Court Reporter’s Transcript on Appeal
Thursday, July 10, 2008 Volume II of IX
Direct Examination of Glenn Priddy County of San Luis Obispo
Page 309 Question. Are you aware of a drainage feature that would accept or transport water from those areas across Railroad Street? “Answer. “Only Railroad Street.”
Page 310-311 ties in with exhibit # 579 withheld form discovery. Answer. “that’s one of the possibilities.
Page 317 Answer. “Um, This is a Caltrans letter. Yes Yes, I did have meetings with Caltrans at the time.”
Page 318-234 Exhibit # 1760 shows problem to trial court that flooding could have been abated.
Page 330-331. Ties in fully with exhibit #579- "Are you aware of proposals for resolving the drainage problem at -- That we've referred to previously? Are you aware of proposals to resolve that problem dating back into the eighties?" Answer. Yes. Question. And have you raised issues with the respect to proposed solutions due to downstream impacts? Answer. “I have – There have been issues raised about potential downstream impacts since the eighties, and I –In the most recent discussions, I’ve pointed that out as something that needs to be looked at.” Ms Thurmond States: “Again, this is outside the water shed, not affecting Bill Bookout’s property.” --------See Exhibits Quotes Below 1785,1795, 1786,1788, 1789, 1796!
Page 331 Proposed solution!--------------County
Page332-335Baughman property comes up dealing with Exhibit #579
Page 334 Judge Tangeman Stated to the County Of San Luis Obispo (Glenn Priddy) "The problem area" being Highway 1 and 13th and Paso Robles." The County of San Luis Obispo responded P.335. "The problem--As far as fixing the drainage on the lot, the --The problem was the impact of the Fix on the Downstream Property owners, not that--something down there needed to be fixed in order to solve the problem upstream."
Page 342-345 Exhibit # 1743 offers to dedicate. Not accepted into evidence?
Page 348-349 the court talks about their views of strict liability or reasonable conduct? This then ties in with exhibit #579 withheld from discovery as the court states: “ But wouldn’t that only be relevant in the context of an affirmative action undertaken by the County to construct an improvement which created an unreasonable risk to a downstream owner, as opposed to a County or State’s negligence, failure to fulfill recommended actions? In other words, I’m not sure that it fits under liability theory under either one of the theories that you have mentioned. Tell me – Tell me where I’m wrong.” The authority’s asked for would be Arreola v. Monterery ---Skoumbas v. City of Orinda
Page 355 Exhibit #1756 Received Three pages. OCSD told Southern Pacific Railroad, County and POVE on April 21, 1983 in a letter "This Channel has been protected by use of a culvert that would conduct surface waters under Southern Pacific tracks to what may be a bunker under the loading docks of the Pismo-Oceano Vegetable Exchange (POVE) . The water, then, might flow to a small retention basin maintained by POVE." "Because this is an established drainage channel. The District feels that its full design capacity should be available for use. Research, however has not clearly revealed the agency responsible for the maintenance of the channel. Consequently, we have no idea the condition of the channel and weather, in its present state of maintenance; it can adequately carry the quantity of water that will be discharged."
Page 357 “Yes we worked with the Department of Transportation on a Caltrans Potential Project.”
Court Reporter’s Transcript on Appeal
Friday, July 11, 2008 Volume III IX
Direct Examination of POVE Dan Sutton
Page 604 Question. “How long have you been with POVE?” Answer. “I’ve been with POVE since August of 2001.”
Page 611-612 not a typical amount of debris
Page 620 Impact and discussion regarding flooding problem within last five years?
Page 626 the pond is never completely drained?-----
Page 634 Question. “When did you first meet Mr. Bookout?” Answer Um, hard question to answer. It might have been – I mean, I remember his nursery opening. It was probably ’03, ’02 or ’03 that I first talked to him.”
Page 636 Question by Mr. Gregger “Okay. And I will represent to you that Mr. Bookout opened the Nursery in 2001.” Answer. OK
Direct Examination of Caltrans Kelly Mckinley
Page 642-643 Caltrans performs Construction-the remove retaining wall and crown removal-grade corrections from a ponding issue on the east side of the Highway
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.
Page 651 admits sag point.
Page 652 Mr. Sullivan asks. “And were you involved in the construction of that project itself?” Answer “No, I was not.”
Page 653 hazard with wall as a fixed object that a vehicle could hit
Page 658 Question. “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.”
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Page 666 John brings up the subject of Dan Sutton beginning with POVE. Then the ponding problems I had been concerned about. Then first time meeting with Dan.
Page 669-670 Security Cameras
Page 686-689 ties into Exhibit # 579 Fountain Ave Airpark
Direct Examination of Caltrans Lance Gorman
Page 669 we were able to show that the drainage inlet had been changed. Ponding Problem
Page 728 ties into Exhibit # 579 lagoon and Airpark Drive.
Page 733 disagreement with County for responsibility?
Page 735 ties into Exhibit # 579 downstream impacts.
Page 737 Liability concerns out side of Caltrans right-of –way exhibit # 579?
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Court Reporter’s Transcript on Appeal
Monday, July 14, 2008 Volume IV IX
Direct Examination of Caltrans David Fry
The beginning of the Oceano Storm water drainage channel Historic Maintenance practice’s by Caltrans. Page 910 Question: Okay. And reaching back in time , when did you take over a supervisory role with respect to the Oceano area? Answer: I believe it was April of 2002.
Page 911 Admits responsibility for drainage inlet four feet
Page 912 Caltrans admits occasional cleaning of drainage channel with installing concrete bags at inlet on private property. Answer. “I know that Caltrans has on occasion gone in and cleaned it out. I know that at one point, I directed someone to place concrete sacks underneath the lip of the culvert in front – In front of the culvert. Outside of that, we really don’t have any –We don’t have any business being out there because it’s private property.” Caltrans admits Exhibit #1467 being a Caltrans loader outside of Caltrans four foot right-of-way in 2000. Question. And this photograph is dated 2000. You, of course were not a Supervisor or a worker in the year 2000; correct? Answer: Right. Page 913 Question And do you have any knowledge of other occasions where Caltrans may have undertaken maintenance of this type using heavy equipment? Answer. I have no personal knowledge of it. It may have happened, but I don’t –I don’t know for sure.”
Page 916-917 Question. Mr. Fry, Exhibit # 1475 on the screen there is the same as Exhibit 11 in your deposition transcript. Can you describe for me the materials that you see here on Highway 1? Answer. “I see Dirt, Water, Eucalyptus Leaves and Seed Pods from the Eucalyptus.” Question. Now in your practice as a Maintenance Supervisor and as a lead worker, has it consistently been your practice to somehow, I guess, blade this material to the side of the road? Answer. “YES. When – When it gets in this condition, we come down with a plow truck and we plow it back off the road. Sometimes we plow it to the gutter and come back later and pick it up. Sometimes we plow it behind the curb and either roll it in with the truck or leave it behind, just leave it behind the curb where it came from.”
Page 917-918 Question. “Based on your personal observations, has a substantial amount of material entered onto the Highway as depicted in 1475 following the removal of the concrete wall?” THE COURT: I’ll allow that Question. Answer. “Yes, I believe that the dirt came from the bank.” Question. “Due you have any problem at all with sediment buildup in the mouth of the channel?” Page. 919 Answer. Sediment? Not so much sediment as Eucalyptus bark. There is some sediment, Yes.
Question. “Fifteen Seventeen, that’s a picture of you, isn’t it, Mr. Fry.” Answer. “I believe it is. I can’t see my face.” Question. “Do you recognize that as the entrance to the drainage channel?” Answer. “YES”
Page 920-921 Caltrans shoveling debris into their four foot right-of –way Question. “Is this anything related to the buildup of sediment at the mouth of the drainage channel?” Answer. “Well it’s more grass. Well, Yeah, sediment and grass.” Question. And where’s this material removed to when you engaged in this particular activity? Answer. “Based on the Mud behind me at the base of the tree, I would say we where throwing it up on the bank.” Question. So you were keeping it in the four feet that you consider to be Caltrans right-of-way? Answer. “YES” Question. And how often have you engaged – You or your staff engaged in the particular activity? Answer. “How often does it rain down there?” Question. Is it fairly often – Answer. “YES” Question. Based on the rainfall? Answer. “YES, just about every time it rains.”
Question. Go back to 1515. Let me show you 1515 and 1514 and 1513. Those three photos, are those Caltrans workers? “Yes.” And what activity are they engaged in, if it’s any different then what you just showed? Answer. Can you go back? I really can’t tell what they’re doing there. Question. Okay. Which one would you like to look at? Answer. All three of them. Question. Okay. Answer. “I’m not sure what they’re doing in this picture. It appears that they’re throwing dirt up on the bank at the base of the tree.”
Page 929 Cross Examination by Mr. Sullivan:
Page 931 regarding exhibit # 579 Caltrans talks about their construction and drainage change in the drainage channel in December 2002 as seen in exhibit #579. Answer. “Mr. Bookout called me and asked me if I could come down and look at the pipe that – A pipe that was inserted into the entrance of the culvert. So we went down there. I met with Mr. Bookout, and I also met with Phil Davis from the Oceano Community Service District. and Mr. Bookout’s concern was that the pipe was blocking the entrance and, basically, the volume of the pipe. The --The Community Service District pipe was taking up some of the space the water could flow through the culvert.” Question. Okay. Answer. “So his request was that the Oceano Community Services District cut the four-inch water pipe, shorten it so that it didn’t actually go into the entrance to the culvert.” Question. Was that done?
Answer. “That was done And when we were discussing that, I suggested that they put concrete sacks at the bottom, you know, in the bottom underneath the culvert pipe coming out a few feet, so they didn’t create a wetlands there. Because , basically, dumping extra water into the culvert -–I don’t know how often OCSD flushes their water tank, but by adding extra water, if that was wet all year-round, you’d have Tules growing there and it would create a wet lands.” So by placing something solid underneath it, then you would avoid that issue, because once that issue arises, then there’s a whole new – A whole new can of worms.” Question. Additional problems? Answer. “Additional problems, Yes.” Question Regarding what level – What types of maintenance activities could be done in wetlands; Is that correct? Answer. “Correct.”
Page933 exhibit# 1892?????
Page 934 Caltrans States squaring the blade at drainage channel Exhibit # 1892? “When he goes through that, it would push material to the right. When he comes –We do that to get the material off of the travel way or off of the main part of the road. When he would come to the opening, he would square the blade up so it’s perpendicular to the truck, go right through that drainage opening, and then heel it to the right again, and keep carrying material to the right.” Question. Is that done so that material won’t be pushed from the road into the opening of the channel? Answer. “RIGHT”
Page 936 regarding exhibit # 579 Question. “Now, the – we saw earlier a photograph of a Caltrans loader, as you described it , actually in the channel. Do you have – I mean, can you tell us why that was done? To your understanding , why that would have been done?” Answer. “I would imagine that the loader was working in the area. The employee who was running the loader was probably a conscientious employee and wanted to try to help.”
Question. Do you have a problem with your employees doing “Good Neighbor” sort of deeds like that?” Answer. “NO, we do – We try to do that when we can.”
Page 941Question. You worked in this area in ’95 and ’98; Correct? Answer. Right. Question. And then 2000 to today – Answer. “Correct” Question You’re responsible for that area? THE COURT: That’ 2002 to today. Mr. Sullivan: I’m sorry, 2002 Thank You.
Page 955 Caltrans concern of drainage channel becoming a wet lands from the Oceano Community Service District PVC pipe in drainage channel! Okay. You indicated you had a concern about the drainage channel turning into a wetland of some type? Answer: Right. Question: And you expressed that at or about the time the sandbags were installed? Answer: Right. Question: Incidentally, I didn’t quite clearly hear. Did you have Caltrans workers place those sandbags at the base of the culvert? Answer: “I believe we did, yes.”
Judge Tangemen in his decision August 5, 2008 stated that: "Mr. Fry testified that any work undertaken by Cal Trans employees in the channel to help clear the channel were most likely undertaken solely as a "good neighbor" practice by a "conscientious employee”
Good Neighbor was stated by Mr. Sullivan not Mr. Fry? Judge Tangeman used this page 10 in his decision regarding PRESCRIPTIVE EASEMENT? I BELIEVE THIS WOULD BE A PREJEDICAL ERROR?
The San Luis Obispo Superior Court misheard the testimony as truly stated by Caltrans: “I would imagine that the loader was working in the area. The employee who was running the loader was probably a conscientious employee and wanted to try to help.”
In the documents and photos withheld from Discovery Exhibit # 579 by the County of San Luis Obispo, Caltrans is seen in 2002 and prior using a loader to remove debris from the Oceano Community’s Storm Water Drainage Channel.
The State of California, Caltrans at trial Stated Page 921, July 14, 2008 regarding their new maintenance practice’s of shoveling dirt inside the Oceano Community’s Storm Water drainage channel: “I’m not sure what they’re doing in this picture. It appears that they’re throwing dirt up on the bank at the base of the tree.” On page 920 Caltrans was asked regarding their shoveling debris into their four foot right-of –way Question: “Is this anything related to the buildup of sediment at the mouth of the drainage channel?” Answer. “Well it’s more grass. Well, Yeah, sediment and grass.” Question: And where’s this material removed to when you engaged in this particular activity? Answer. “Based on the Mud behind me at the base of the tree, I would say we where throwing it up on the bank.” Question: So you were keeping it in the four feet that you consider to be Caltrans right-of-way? Answer. “YES” Question: And how often have you engaged – You or your staff engaged in the particular activity? Answer. “How often does it rain down there?” Question: Is it fairly often – Answer: “YES” Question: Based on the rainfall. Answer. “YES, just about every time it rains.”
Caltrans, actions after the San Luis Obispo Superior Courts decision August 5, 2009 affecting public heath and Safety as Caltrans stated at trial. “I’m not sure what they’re doing in this picture. It appears that they’re throwing dirt up on the bank at the base of the tree.”
Notice the Debris Caltrans shoveled during this rain event into this storm water drainage channel as Caltrans had stated at trial Question: So you were keeping it in the four feet that you consider to be Caltrans right-of-way? Answer. “YES” Question: And how often have you engaged – You or your staff engaged in the particular activity? Answer. “How often does it rain down there?” Question: Is it fairly often – Answer: “YES” Question: Based on the rainfall. Answer. “YES, just about every time it rains.”
Court Reporter’s Transcript on Appeal
Monday, July 14, 2008 Volume IV IX
Direct Examination of Union Pacific Railroad Javier Sanchez
Page 971 Question “Okay. Now, do you perform any maintenance activities on that culvert?” Answer. We haven’t no.”
Page 979 Responsibility!
Court Reporter’s Transcript on Appeal
Monday, July 14, 2008 Volume IV IX
Direct Examination of Bookout
Page 1002-1027 Bookout flood video 1003 1017 Caltrans shoveling debris, OCSD admitted into evidence exhibit # 1816
Page 1211 Time line and flooding from the back.
Page 1017-Security Cameras
Page 1025 Judge Tangeman States: “I know that what I’m going to -- I am anticipating a number of arguments as to various theories of liability under Arreola and Locklin and Bunch and the other cases.
Court Reporter’s Transcript on Appeal
Tuesday, July 15, 2008 Volume V IX
Direct Examination of Bookout
Page 1203-1208 Security Cameras
Page 1210 prior to the flooding in 2004 the ponding in front of my property is discussed Question. “So you had some water at the front of your Nursery; that would be from Highway 1 flooding circumstance? P.1211 Answer. “There was water in 2002 that crossed Highway 1, but didn’t really come in my property.”
Cross- Examination of Bookout
State of California, Caltrans Page 1217 Question “You still do. Isn’t it true that every time your property was flooded – As reflected in the time line of 1867, every time your property was flooded, Highway 1 was flooded? Answer. “I had some intrusion from the back of my property.”
Union Pacific Railroad Page 1219 Exhibit # 579 is introduced. (“Photographs of the flooding would be very helpful to us.”) There where several Photos with this exhibit that where not introduced and withheld from trial. The County of San Luis Obispo disclosed these photos December 2, 2008 after trial.
Page 1221 Question. “Now, you mentioned a moment ago you had damage to inventory as a result of flooding prior to 2004. Can you please describe that damage. Answer. “We had a gentleman building prop –Building a house behind my property, and the County allowed him to divert water through the alleyway.” The County then objects to testimony. MS Thurmond: Objection; speculation, assumes facts not in evidence, no foundation as to “County Allowed.”
Page 1222 I begin again stating. “The County inspected the alleyway after the” At which time the County then objects again stating. “MS. Thurmond: Objection; calls for facts not in evidence, speculation, no foundation as to “County Inspected.”
Page 1226 The Court admits three pages “Another question is, I’m not sure we laid a foundation as to anything more than the first page. I don’t know what the second and third pages are.” Page 1227 The Court States “Oh, I think a foundation was laid as to pages 1 and 2. I do note that page 2 is referenced in page 1. But page 3 we didn’t address.” Mr. Gregger then talks about Photographs! Mr. Gregger States. “And for the purpose of the exhibits we don’t need the photographs.” The Court “All Right------
Exhibit # 579 presented July 15, 2008 was not admitted in discovery or into evidence until July 16, 2008 Page 1618 exhibit # 579 was without all of the photos and written statements that went with this exhibit? The County of San Luis Obispo did not provide the photo’s below until December 2, 2008 after proper discovery and the documents that they had provided July 30, 2008.
Judge Tangeman Stated page 1226 “Another question is, I’m not sure we laid a foundation as to anything more than the first page. I don’t know what the second and third pages are.” Page 1227 The Court States “Oh, I think a foundation was laid as to pages 1 and 2. I do note that page 2 is referenced in page 1. But page 3 we didn’t address.” The Railroad then states: “And for the purpose of the exhibits we don’t need the photographs.” The Court “All Right------
Court Reporter’s Transcript on Appeal
Tuesday, July 15, 2008 Volume V IX
Direct Examination of Keith Crowe
Page 1263 Keith Crowe talks about County document requiring POVE to raise drainage outlet.
Page 1272 -1280 Keith Crowe sums up everything with OCSD
Court Reporter’s Transcript on Appeal
Wednesday, July 16, 2008 Volume VI IX
Direct Examination of Caltrans Fred Brebs
Page 1504 Stated, Superintendent of Maintenance from 1996-2002.
Page 1506 Caltrans admits information in exhibit # 1794 Question: There’s no title, but I assume from your description, you were a supervisor of maintenance at this time? Answer: “Yes. I didn’t generate this document . I – I don’t know if you care about that. This is my name. This information I provided that’s here.” Question: so this is information that you gathered and that’s represented on this document? Answer: “Yes” Question: And it concerns the years 1983 through 1987. These are years in which you were a Supervisor of Maintenance for Caltrans? Answer “Yes.” Question: And did – And 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.” Question and are those Maintenance occasions set forth in part or in whole on those collection of dates that’s represented on Exhibit 1794? Answer: “Yes.”
Page 1507 Question So when we look at your – The Exhibit 1794 that we were just reviewing, “Clean Ditch With A Loader,” We refer to that type of equipment? Answer: “Yes.” Page 1508 Question 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 than one occasion? Answer: “Yeah –Yes, I would say yes.” Question: So was this a part of the maintenance that you oversaw as Supervisor during those years, ’83 through ’88? Answer: “Yes”
Page 1509 Question: by Mr. Belsher: Did you instruct your employees on maintenance activities with respect to the channel that’s depicted in 1467? Answer: “Yes.” Question And did you ask them to remove debris from that channel that’s depicted in 1467? Answer: “In these years, I was superintendent and I was in Santa Maria, and my supervisors, you know, directed that work.” Question: Okay. And do you recall that –stick that. And who were your supervisors during those years? Answer: “Jim Grashia (Phonetic) And David Fry.” 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.”
1512 Question: Now , in your years as Supervisor or a superintendent, do you ever recall obtaining permission from the railroad to enter into the culvert that runs off of 13th street? Answer: “Into the culvert at 13th street? No.” Question: Or into the channel, I’m sorry. The answer is “No”? 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 anbody at that point in time in terms of entering-- Answer: “For 13th Street? No.” Mr. Belsher: I have no further questions, your honor.
Exhibit #579 Presented July 15, 2008 Photos of Caltrans/Brebs Raising State Highway 1 in the summer of 2002 where not provided by the County or the Railroad before or during trial as stated by the Court and Railroad! Mr. Gregger States: “And for the purpose of the exhibits we don’t need the photographs.” The Court “All Right”
Court Reporter’s Transcript on Appeal
Wednesday, July 16, 2008 Volume VI IX
County intentionally withholding evidence from Discovery
New Evidence exhibit photos with 150 potential whiteness stating that there had not been any flooding of Oceano Nursery as exhibit #579 was withheld from discovery by the County of San Luis Obispo along with photos of Caltrans, Construction since 2000 with their drainage changes in 2002. Exhibit #579 was not available for examination of Keith Crowe or Caltrans, Fred Brebs. This evidence referenced the flooding/ponding on the eastside of State Highway 1 in which Fred Brebes had personal knowledge of. The Trial Court did had not address-- . But page 3 we didn’t address.” The Railroad then states: “And for the purpose of the exhibits we don’t need the photographs.” The Court States “All Right------
Page 1617 July 16, 2008 The Trial Court asked regarding exhibit # 579 withheld by the County of San Luis Obispo from Discovery. “The Court: Do you have any basis for a claim that the parties combined in bad faith to accomplish this result?
Mr. Belsher: “Only what I’m suggesting happened and was described.”
The Court: “You mean the fact that they used a United Front? Do you have any other evidence or information that they have, through combination of efforts, subverted the discovery process in concealing documents?”
Page 1620 Rainfall data regarding our foundation with no objection or argument regarding this evidence. Something is missing?
Page 1627 County of San Luis Obispo Argument States: “There’s no evidence that the conditions have changed between his purchase of the property and the present let alone 2002 and the present. So, one way or the other, the defendant is entitled to Nonsuit.” The Trial Court has still not addressed P. 3 or the other documents withheld from discovery that shows the County of San Luis Opening statement to be false!
Page 1628 County of San Luis Obispo Argument. The photo evidence withheld from discovery and trial in exhibit #579 shows the county’s statement to be incorrect. Ms. Thurmond. “There’s no evidence at all that the impervious surface area increased. We know that paving occurred sometime after 1894. There’s no evidence of any worsening from any time to any time other than 19 – or excuse me, 1894 to the present. And let alone from 2000, when Mr. Bookout’s purchased the property, to the present, or 2000 to 2004 when Mr. Bookout’s alleged that he suffered his first flooding incident.”
Ms. Thurmond. “There was no evidence at all, no quantitative evidence as to the decrease in storage volume at the inlet.” Exhibit # 579 photos withheld from discovery and Caltrans CausationTestimony July 14, 2008 by David Fry in regards to drainage changes made by him since 2002! Question. “Is this anything related to the buildup of sediment at the mouth of the drainage channel?” Answer. “Well it’s more grass. Well, Yeah, sediment and grass.” Question. And where’s this material removed to when you engaged in this particular activity? Answer. “Based on the Mud behind me at the base of the tree, I would say we where throwing it up on the bank.” Question. So you were keeping it in the four feet that you consider to be Caltrans right-of-way? Answer. “YES” Question. And how often have you engaged – You or your staff engaged in the particular activity? Answer. “How often does it rain down there?” Question. Is it fairly often – Answer. “YES” Question. Based on the rainfall? Answer. “YES, just about every time it rains.”
Caltrans Mr. Sullivan stated Page 1633 against photo evidence exhibit # 579 withheld from discovery. “There is in and among the factors that he listed, as opposed to the State of California’s decrease in storage volume at the inlet. There’s no evidence of – Of any raised ground in terms of raising the height of State Route 1. And Ms. Thurmond somewhat covered this, in that nothing has changed since’04 and I believe she actually referenced the –The only evidence was that this road had been paved since 1894.”
Union Pacific Railroad Mr. Gregger Page 1638 Refers to the Arreola Case Law. “That doesn’t support a cause of action for Inverse Condemnation, and that’s -- That’s in the Arreola case which is cited in the various parties’ moving papers.” “The only evidence that has been introduced was that we arguably were negligent in not undertaking enough maintenance, and that’s not enough for an inverse claim.”
Page 1647 County or Caltrans?
Court Reporter’s Transcript on Appeal
Tuesday, August 5, 2008 Volume VI IX
Page 1806 Evidence Code # 1270 and 1271 Exhibits 1776, 1779, 1780, 1785, 1788, 1789 and 1796 not allowed into evidence. The Court: What are the Exhibits? Let’s find out if they continue to draw an objection. Mr. Connell: It’s 1776, 1779, 1780, 1785, 1788, 1789 and 1796.
Page 1809 The Court: “All Right. The Court has reviewed the matter extensively, including reviewing once again the Court’s notes of the trial, the briefs of the parties, exhibits, including both the briefs filed post trial and the brieifs filed pretrial. Based upon the law, I have concluded that the issue of liability by the defendants for inverse Condemnation, which is the sole issue that has been tried to the Court, must be decided in favor of the defendants, and each of them, based upon the statute of limitations as well as other grounds which I have recited and explained at some length in a written decision which I am prepared to distribute to the parties. I have made copies of it.”
Court Reporter’s Transcript on Appeal
September 12, 2008 Volume VIII
Motion for Re-Consideration
Exhibits presented to trial Court, that should have been included with Exhibit #579 withheld by the County of San Luis Obispo from Discovery and Trial.
Page 2106 shows Questionnaires that were provided July 30th without photos as the Railroad had previously stated July 15, 2008: “And for the purpose of the exhibits we don’t need the photographs.” The Court States “All Right------
Page 2107-2108 John Belsher States to the court regarding evidence withheld from discovery. “Now the County takes the position well, we should have somehow gotten the statements some other way. I don’t know what that other way is other than to ask directly in discovery twice for these statements and failed to get them.
So two parts to this motion. One in which was briefed, the element of unfairness to this defendant having to deal with this exhibit which is the unified defense sprung on us at trial. And, two, the fact that the County withheld important evidence that could have made a difference to this plaintiff at trial.
Page 2108 “so on July 30th is when we received these questionnaires . So we do not have the benefit of these questionnaires in responding to the court’s allowance for an offer of proof. So therefore I had no ability to make an offer of proof in response to those statements.”
Page 2109 “ There’s an absence of the court’s addressing authorities cited by plaintiff Blau Versus City of L.A. On concurrent causation. And reliance by the court on flood control case despite the testimony by County witnesses and others that this is not a flood case, that this is a drainage case. There was no comment by the Court under Marin Versus City of San Rafael as to the County’s participation in the permitting of the POVE facilities.”
Page 2118 The Trial Court States regarding their directed verdict without paying attention to the evidence presented to the court.
“The Court will acknowledge that I did not address all of the issues in the supplemental briefs and the reason for that was simply this: 631.8 is directed towards the issue as to weather there is a basis for dismissal on any several alternate grounds. Some of the issues I was not preparied to grant judgment on until I heard the defendant’s case. Some of the issues I was ready without the defendant’s case, those are the issues I address in the 631.8 ruling. So I’m going to deny the motion for new trial. I will deny the motion for reconsideration.”
Court Reporter’s Transcript on Appeal
November 6, 2008 Volume IX
Page 2401-2423 regarding date of Stabilization.
Page 2426 The County of San Luis Obispo summarized the San Luis Obispo Superior Courts decision August 5, 2008 stating.
MS. Thurman: “The LEE case cited by plaintiff, that is a good example of the stabilization type argument where there was continuing to cause ever-changing damage. In this case, again Judge Tangeman specifically found no changes have been made since the ‘70s and that the flooding was static throughout the years.” “So the date of stabilization that a reasonable person would be appreciative of the damage doesn’t matter. It was all prior to 2001 in this case. No evidence of any difference.”
Blogger: Oceano Nursery Flooding - Edit Post "Caltrans And County Of San Luis Obispo using State..."
Dear Friends
News Media.pdf State Highway 1 in Oceano should not be
flooding any time it rains!
When our California Constitutional Rights are taken
away from us and our property is taken for a dangerous
public use, as Caltrans raising a State Highway and then
shoveling and Grading Contaminated Storm Water Debris into a
Storm Water Drainage Channel, it is our duty to make the public
aware; especially when their public safety has been endangered!
Please View Caltrans and County using State Hwy 1 for a storm water retention. The San Luis
Obispo Superior Court has stated August 5, 2008 regarding the flooding of State Highway 1 and Oceano
Nursery: "County, State, Union or OCSD could not have abated the nuisance by undertaking
any maintenance"
The Trial Court erred in ignoring the Most recent Inverse Condemnation case filled July 31,
2008 Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Caltrans ownership and negligent,
changing use of this drainage inlet as seen in this video is a substantial cause of the flooding of State
Highway 1. Caltrans as seen in this video has changed the date of stabilization with their history of once
removing this debris instead of shoveling it into this storm water drainage channel as seen by the Caltrans
Supervisor above!
Superior Court Judge Martin J. Tangeman in his August 5, 2008 Trial Court decision
regarding Caltrans Maintenance stated: "Mr. Fry testified that any work undertaken by Cal Trans
employees in the channel to help clear the channel were most likely undertaken solely as a "good
neighbor" practice by a "conscientious employee."
The San Luis Obispo Superior Court misheard the testimony as truly stated by Caltrans in
the Court Reporters Transcripts: “I would imagine that the loader was working in the area. The
employee who was running the loader was probably a conscientious employee and wanted to try to help.”
Court Reporters Transcripts showing Caltrans intentionally shoveling debris into this
drainage channel... November 26, 2008 photos of Caltrans actions after trial.
Caltrans after Judge Tangeman's August 5, 2008 Decision has continued their practice of shoveling storm
water debris into their four foot storm water drainage inlet as seen in this November 26, 2008 security
video!
The State of California, Caltrans at trial Stated on page 920-921 of the Court Reportor's
transcript, for July 14, 2008 regarding their shoveling dirt and debris inside the Oceano
Community’s Storm Water drainage channel as seen above: “I’m not sure what they’re doing in this
picture. It appears that they’re throwing dirt up on the bank at the base of the tree.” Question: “Is this anything
related to the buildup of sediment at the mouth of the drainage channel?” Answer. “Well it’s more grass. Well, Yeah, sediment
and grass.” Question: And where’s this material removed to when you engaged in this particular activity? Answer. “Based on
the Mud behind me at the base of the tree, I would say we where throwing it up on the bank.” Question: So you
were keeping it in the four feet that you consider to be Caltrans right-of-way? Answer. “YES” Question: And how
often have you engaged – You or your staff engaged in the particular activity? Answer. “How often does it rain down there?”
Question: Is it fairly often – Answer: “YES” Question: Based on the rainfall. Answer. “YES, just about every time it rains.”
Judge Tangeman Exhibits presented to him during trial showing Caltrans endangering
public Safety!... Notice in this video April 2, 2008 Caltrans emplyees actions in drainage channel outside of Caltrans 4 foot
right of way?
View Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Arreola v. Monterey County (6th Dist. June 25, 2002) 99
Cal.App.4th 722 [122 Cal.Rptr.2d 38]. Caltrans actions as seen in the video above goes against California Streets and
Highway code sections 720-734 particular, section 725 (Prejudical error) Arreola v. Monterey shows “An entity
with the power to control a project need not actively participate in it to suffer liability. Proof that an entity signed a contract
assuming responsibility for the project, shared a common governance with an active participant, or provided an exclusive
revenue source for the project, can establish control.”Arreola v. Monterey County (2002) Cal.App.4th[2002 Cal.
App. LEXIS 4319].
Superior Court Judge Martin J. Tangeman has stated: "The "Date of Stabilization" approach does
not apply in this case. The evidence showed that the last improvements made to the drainage systems were
constructed by Pismo Oceano Vegetable Exchange ("POVE") in the late 1970s”
These maintenance actions by Caltrans have changed the Stabilization of this drainage channel. Caltrans has intentionally raised
the State Highway in December 2000 changing the Stabilization of this drainage channel. Caltrans has then raised and lowered
this State Highway in 2001, 2002, 2003, 2006 again changing the Stabilization. Caltrans was well aware of their changing the
drainage stabilization of this drainage system with exhibit # 1757 a March 13, 1985 signed agreement with OCSD. Please view this
evidence presented to the San Luis Obispo Superior Court in this PDF file!Caltrans_intentionaly allowing State Highway 1
to flood instead of west side of Oceano Documents.pdf The Residents of Oceano at this time payed in full
$5,000.00 Dollars for Caltrans to take full responsibility for this drainage system used by Caltrans.These actions
go against California Appeals Arreola v. Monterey County (6th Dist. June 25, 2002) 99 Cal.App.4th 722 [122 Cal.Rptr.2d 38 ----
Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. These two Appeal case's show this Trial Courts Prejudicial Errors.
The Trial Court erred having commented on this video below of the Oceano Community Service District use of
this storm water drainage channel for other uses then storm water. This Community Service District PVC pipe use in a
storm water drainage channel-(Public Improvement goes against the most recent California Appeals Court Case
Law Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Notice Caltrans debris at inlet of drainage channel in
video! Both Caltrans and OCSD are seen here to be substantial contributors along with the Railroad for these drainage obsticles.
OCSD testified July 10, 2008 at trial to making drainage changes pictured below in 2001 and 2002 showing that their was no
stabilization to this drainage system. OCSD when asked "Do you have a maintenance plan for the channel or the culvert with
respect to debris?" Answered. NO, WE DO NOT. Judge Tangeman stated regarding this testimony. "County, State, Union or
OCSD could not have abated the nuisance by undertaking any maintenance"
Superior Court Judge Teresa Estrada-Mullaney in her February 2, 2009 Judgment Decision
"Notice of Judgment" States: "Judge Tangeman determined the flooding problem was "static" for several years
prior to Plaintiff's purchase of his property. Plaintiff contends the flooding is continuous and can be abated.
Plaintiff argues Defendants negligent maintenance of the drainage system increases the frequency and
severity of the flooding. That is inconsistent with Judge Tangeman's determination that the primary culprit was POVE's
improvements, rather than negligent maintenance of the drainage system. There was no showing that Union's operation of
Well No. 8 contributed to the blockage. There was no showing of the County's responsibility for maintaining the drainage
channel. There was no evidence that any accumulated debris in State's right of way contributed to the problems in the
operation of the drainage system. County, State, Union or OCSD could not have abated the nuisance by undertaking any
maintenance" View Judge Tangeman Exhibits presented to him during trial showing Caltrans, County and OCSD
continuous and repeated conduct endangering public Safety, with no Stabilization in this drainage system
pdf...
This Video December 19 2007 shows Caltrans at 3am in the morning after the State Highway had flooded
shoveling and then grading storm water debris into the Oceano Community's Storm Water Drainage
channel! This changes the stabilization of this intended use of this drainage system!
The Public can help by asking Questions of Governor Arnold Schwarzenegger,
Senator.Maldonado@sen.ca.gov and Assemblymember.blakeslee@asm.ca.gov Caltrans and
the County of San Luis Obispo could have abated the intentional flooding of California State
Highway 1 at any time for a cost of $43,295.00 presented to the Trial Court Exhibit #1790 a
September 25, 1987 Letter to the County of San Luis ObispoView
Assemblyman Blakeslee is taking action see his letter April 30, 2009
Assemblyman_Sam_Blakeslee. pdf... View Senator Abel_Maldonado. pdf knowledge. Please
view the local News Media Knowledge with Senator.Maldonado and Assembly member Sam
Blakeslee Knowledge as presented to them in this PDF file Senator Maldonado is now aware of Caltrans
actions from his response May 12, 2009 calling this a very difficult situation.
State Assemblyman Sam Bakeslee and Senator Abel Maldonado--Skoumbas v. City of Orinda
2008 New Knowledge of State Highway 1 flooding June 5, 2009... News Media knowledge of
flooding June 5, 2009 and Oceano Community Service District dredging OCSD well #8 water
up to State highway 1 June 9, 2009.
Our Local News Media--San Luis Obispo Tribune, McClatchy News, New Times, Five Cities
Times Press Recorder, Santa Maria Times are now aware of the County of San Luis Obispo, Caltrans
and Oceano Community Service District documents showing that they could have abated a small drainage,
ponding problem in the mid 80's before OCSD constructed their Well # 8 PVC pipe in this drainage channel
a and Caltrans decided to raise State Highway 1 in December 2000 as Caltrans had stated September 15,
1987 Caltrans could do. News Media Knowledge of Oceano Residents Paying $5,000.00 To
Caltrans for public Safety.pdf
Trial Court Trannscripts knowledge presented to the San Luis Obispo Tribune July 21, 2009
Public Safety with Freedom of Speach... for County Residents knowledge.
United States Senator Barbara Boxer and Congresswoman Lois Capps are now both aware of
Caltrans and the County of San Luis Obispo Actions as they both have recently acknowledged
documents presented to them.
Governor Arnold Schwarzenegger is aware of Caltrans Actions. See his-- _Response to State
HWY 1 Flooding in Oceano...
Trial exhibits presented to Judge Tangeman showing no Stabilization from drainage changes
in inverse condemnation with the Caltrans Maintenance Supervisor and his employee's
shoveling debris into the Oceano Community's Storm Water Drainage Channel! Trial
Exhibits seen by Judge Tangeman Exhibits 1516, 1513, 1514, 1468, 1469, 1470 PDF...notice
dates on photos and that Caltrans is not removing debris from State Highway 1! Notice flooding of East side
of State Highway 1 from Caltrans overlay as seen in Caltrans photos June 13, 2002. Exhibits 1466 and 1467
show Caltrans in 2000 doing proper maintenance to this drainage channel used by Caltrans. Exhibits 1464
and 1465 show Caltrans raising State highway 1 in 2000 before they removed their retaining wall in 2003.
Appeal Brief reasons and facts showing Inverse Condemnation Caltrans, County, OCSD
Railroad pdf Exhibit # 1488 of Caltrans grading storm water debris into this drainage
channel while Caltrans continues to shovel debris into this storm water drainage channel
Exhibit #1517.
The Trial Court erred regarding Inverse Condemnation and "date of Stabilization" with the
evidence above. The San Luis Obispo Court has ignored our California Constitution
(Property Rights Article I Section 19) The Trial Court Stated "Finally,the Court does not find a factual
basis to impose liability based upon allegedly increasing elevations of Highway 1 resulting from overlay projects. First, the
evidence was mixed at best as to weather the absolute elevation of Highway 1 changed in a substantial way as a result of the
"remove and replace" projects." Caltrans had previously addressed their drainage at this location and were aware
of their actions as seen in Exhibit # 579 "Overlay From Caltrans in 2001 on HWY 1." At Trial an in exhibits
drainage changes by Caltrans are seen in 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008 showing
no Stabilization! The County of San Luis Obispo withheld part of their knowledge of these
drainage changes from discovery Exhibit # 579 states: "Caltrans raising Highway 1 at 13th Street (summer
2002) Contributing to elevated flooding (inability for water to cross roadway) on northeast side of Highway 1 (at Oceano
Nursery)"County withholding evidence from discovery until December 2, 2008 of flooding before Hwy 1
Baughman
This maintenance practice by Caltrans is seen in the videos and photos; November 26, 2008,
April 2, 2008, December 19, 2007, January 4, 2007, March 22, 2005. Caltrans Claims this is
normal for Caltrans. View Caltrans January 10, 2005 OCSD meeting with Caltrans talking about
drainage. See Caltrans Response to the Regional Water Quality Control Board January 12, 2009
Caltrans-D-5 Pete_Riegelhuth January 12, 2009 Statement mailto... Caltrans Pete Riegelhuth
Stated to the RWQCB "it was determined that Department roadway maintenance operations at this location are in
compliance with requirements set forth in Department Stormwater Quality Guidance Manuals."
Caltrans shoveling debris into the Oceano Community's Storm Water Drainage channel as
recently as November 26, 2008. These photos show the Caltrans 4-Foot Right A Way with
Caltrans ownership of the Eucylptus trees.
In this video below the RWQCB has allowed the Oceano Community Service District to
dredge 4500 gallons of Well water daily through this storm water drainage system from
their December 2002 drainage changes.
The San Luis Obispo Superior Court has stated after viewing the evidence. "County, State,
Union or OCSD could not have abated the nuisance by undertaking any maintenance"
View the video below of the Oceano Community Service District Use of this Storm Water Drainage Channel,
then remember the quote above by the San Luis Obispo Superior Court "County, State, Union or OCSD could not
have abated the nuisance by undertaking any maintenance"
The Trial Court in their quote "County, State, Union or OCSD could not have abated the nuisance by
undertaking any maintenance" Erred in ignoring P. 55 of the July 10, 2008 trial transcript with
Oceano Community Service District requesting of the County of San Luis Obispo to change the drainage
system used by the County, Caltrans and Railroad Exhibit # 1756 The Oceano Community Service District
Letter to The County of San Luis Obispo and Southern Pacific Railroad April 21, 1983 stated in Quotes "This
Channel has been protected by use of a culvert that would conduct surface waters under Southern Pacific
tracks to what may be a bunker under the loading docks of the Pismo-Oceano Vegetable Exchange (POVE) .
The water, then, might flow to a small retention basin maintained by POVE."Caltrans and County using
State Hwy 1 for a storm water retention basin Exhibit #1756 OCSD Prescriptive Easment.
"Because this is an established drainage channel. The District feels that its full design capacity should be available
for use. Reserch, however has not clearly revealed the agency responsible for the maintenance of the channel.
Consequently , we have no idea the condition of the channel and wheather, in its present state of
maintenance, it can adequately carry the quantity of water that will be discharged. The District is therefore
notifying all those agencies that may be involved in the channel's maintenance of its possible impending use and the degree to
which it may be used."
The Trial Court Erred as:
An entity that has power to control a project is liable even if it does not actively participate in
it. August 2002 Supplement to the Law of Inverse Condemnation.
An entity with the power to control a project need not actively participate in it to suffer liability. Proof that an entity signed a
contract assuming responsibility for the project, shared a common governance with an active participant, or provided an
exclusive revenue source for the project, can establish control.
Arreola v. Monterey County (2002) __Cal.App.4th__ [2002 Cal. App. LEXIS 4319].
The Trial Court erred 5.2.3 Liability for Improper Maintenance Plan
Failure to act can trigger inverse condemnation liability.
A levee project failed during a heavy rainstorm, flooding plaintiffs' properties. Defendant counties' refusal to keep the channel
clear, in clear violation of Army Corps of Engineers guidelines, caused the breach. Their inaction amounted to a deliberate
policy because they had known about the flood hazard for over 20 years. Despite the danger, they allowed the channel to fill, in
order to meet Fish and Game regulations. The court held for plaintiffs, explaining that, to support inverse condemnation
liability, a plaintiff need only show that an "entity was aware of the risk posed by its public improvement and deliberately
chose a course of action--or inaction--in the face of that known risk."
Arreola v. Monterey County (2002) __Cal.App.4th__ [2002 Cal. App. LEXIS 4319].
The Trial Court erred 6.5.3 Property Historically Subject to Flooding
"Public projects not related to flood control trigger strict liability when they cause water damage to property, even if it is
historically subject to flooding.
A state highway backed up flood water onto plaintiffs' property. The appellate court concluded that the two sources of the rule
of reasonableness--traditional private water law, and Professor Van Alstyne's balancing analysis--both weighed towards strict
liability. First, traditional water law does not privilege downstream obstruction of flood water, as in the instant case. Second,
Van Alstyne's public policy analysis only permits a reasonableness approach where a project's primary purpose is to protect
plaintiffs' property. Here, the State's purpose in building the highway was to benefit the traveling public."
Arreola v. Monterey County (2002) __Cal.App.4th__ [2002 Cal. App. LEXIS 4319].
The Court Stated at trial: “I have not yet read Arreola. I understand the argument that’s going on as to strict liability
versus standard of reasonableness, in addition to the other arguments raised in Locklin in terms of substantial factor and
appointment, Causation. I understand the argument with regard to specific events or nonspecific events. I was just meaning to
focus in on Mr. Gregger’s specific arguments that I have not yet read anything on.”
The Trial Court erred with Exhibits 1874 and 1875--County Building and Construction
Permits-This is where the County of San luis Obispo required the Oceano Community's Storm Water
Retention pond changed March 27, 1985 after the County approved POVE to use the retention pond
December 13, 1984 after OCSD had informed the County that POVE could not use the Sanitary Sewer
system for wash water from POVE vegetables. The County's letter December 26, 1984 talks about County
of San Luis Obispo hazard to health toxic pesticide in a storm water retention. "To be sure
there is no hazard to health from possible concentrated amounts of toxic pesticide, we will
require a written approval by the County health Department of this on-site retention
basin." Please ask questions of Regional Water Quality Control Board?
The Trial Court erred when they stated "The "Date of Stabilization" approach does not apply in this case. The evidence
showed that the last improvements made to the drainage systems were constructed by Pismo Oceano Vegetable Exchange
("POVE") in the late 1970s." This Drainage change/construction below was done by OCSD and Caltrans in December 2002.
OCSD has stated that they discharge 4500 Gallons of their well water out of this pipe daily. Notice the debris in front of this pipe!
OCSD has testified that they do not maintain this drainage channel!
Regional Water Quality Control Board Questions affecting California residents Health and
Safety to the Pacific Ocean that need to be answered pdf Caltrans workers plowing and
shoveling flood-related debris from Highway 1 into a roadside ditch as the Regional Water
Quality Control Board states below.
"John, Pete,
As we spoke about earlier today John, here is the blog that Oceano
businessman Bill Bookout has shared with Water Board staff and other
agencies: http://www.oceanonurseryflooding.blogspot.com/
This blog includes photos and videos of Caltrans maintenance workers
plowing and shoveling flood-related debris from Highway 1 into a roadside
ditch. Mr. Bookout says the Caltrans maintenance supervisor is David Fry
(sp?). Mr. Bookout asserts that this activity is causing a nearby culvert beneath the railroad tracks to become clogged with
debris, which exacerbates flooding of his property.
Caltrans' NPDES stormwater permit prohibits the discharge of wastes or
wastewater from road sweeping vehicles or from other maintenance or
construction activities to any surface waters or to any storm drain leading
to surface water bodies. This maintenance activity appears to violate this
prohibition. Please direct your maintenance staff to immediately discontinue this activity. Any flood-related debris
should be scooped up and properly disposed of in an appropriate location. If we receive any further
complaints regarding this activity, we may find Caltrans in
violation of its NPDES requirements and pursue formal enforcement action.
Thank you for your attention to this matter.
--Matt Thompson
Regional Water Quality Control Board
Central Coast Region
895 Aerovista Place, Suite 101
San Luis Obispo, California 93401
V (805) 549-3159
F (805) 788-3572"
The Regional Water Quality Control Board was able to understand Caltrans maintenance
Staff illegal actions as seen by the trial court. Unfortunatly, the trial court has stated. "County,
State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" Caltrans D-
5 Pete Riegelhtuth NPDES Coordinator January 12, 2009 E-Mail Statement!...
The Trial Court erred as Caltrans' NPDES stormwater permit prohibits the discharge of wastes or
wastewater from road sweeping vehicles or from other maintenance or construction activities to any surface
waters or to any storm drain leading to surface water bodies. The Trial Court viewed the Videos and
Photos of Caltrans actions! See Judge Tangeman Exhibits presented to him during trial
showing Caltrans endangering public Safety!...
As in Arreola v. County of Monterey County trying to make a Deal ignoring public Safety of
County residents .pdf County of San Luis Obispo knowing of theirs and Caltrans responsibilities for
their drianage changes! This is a question for our State Representatives and news media to
make public as seen in these documents.
The Trial Court erred as seen in the County's February 6, 2007 letter above. “As to the “fix” the
defendants did agree that it does not make sense to resolve the plaintiff’s damage claim unless the problem has bee rectified.
Otherwise, subsequent flooding will cause subsequent litigation.” The County's Attorney's previously stated
July 18, 2006 "It remains my position that the County has a Right to allow its water to flow downhill and it is the
responsibility of the downhill property owners to dispose of that water in an appropriate fashion." See Skoumbas v.
City of Orinda (2008) 165 Cal.App.4th 783. Arreola v. County of Monterey(2002) 99
Cal.App.4th 722. As to government liability! The February 2, 2009 Trial Court decision has taken away
this ability to stand up to Constitutional Rights in California!
The Trial Court has erred Ullery v. County of Conta Costa, supra 2002 Cal.3d 562, It was
shown at trial that County of San Luis Obispo, Caltrans and OCSD have all designed, Improved,
Maintained, altered and repaired this man made drainage channel since installing the Oceano sanitation
line in the late 1960's.Caltrans 1953 Aerial Photo Exhibit #1871 Knowledge of Hwy Drainage changes and
Baughman Property!...
The Trial Court erred with allowing the County of San Luis Obispo withholding and changing
of evidence Defendant_County August 22, 2008_of_SLO_Oppositi... County of San Luis obispo
chose not to provide all requested information in discovery until December 2, 2008 several months after
trial showing why the County and Caltrans were using State Highway 1 13th and Paso Robles Streets along
with Oceano Nursery for storing contaminated storm water.
This is Caltrans Response to the RWQCB that now affects all of California residents as seen
in their September 15, 1987 quote above. "Due to past litigation, the Department is no longer responsible or
allowed
to maintain the channel located off of the Caltrans right of way. If you
would like further information about the drainage situation and the
maintenance effort at this location, which has a history beyond what can
be detailed in an e-mail, please let me know so that I can arrange a
meeting with Department staff familiar with the drainage challenges and
restrictions at this site.
Respectfully,
Pete Riegelhuth
D-5 NPDES Coordinator"
Office 805-549-3375
Cell 805-305-7726
Fax 805-542-4746"
john_papathakis@dot.ca.gov
Marissa Nishikawa" marissa nishikawa@dot.ca.gov Pete Riegelhuth
pete_riegelhuth@dot.ca.gov
In Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. As cited to the Trial Court. “We conclude that
in order to prove the type of governmental conduct that will support liability in inverse condemnation it is
enough to show that the entity was aware of the risk posed by its public improvement and deliberately chose
a course of action – or inaction – in the face of that known risk.”Judge Tangeman Exhibits presented to him
during trial showing Caltrans County and OCSD aware of the risk posed by their improvements Safety!...
The Trial Court erred as cited by the Trial Court as in Skoumbas v. City of Orinda, where
Arreola v. County of Monterey is mentioned. "Where a public improvement is unreasonably a substantial
cause of the plaintiff’s damage, a public agency may be liable for its role in diverting surface water in order to protect urban
areas from flooding. (See Bunch v. Coachella Valley Water Dist., supra, 15 Cal.4th 432; Locklin v. City of Lafayette, supra, 7
Cal.4th 327; Belair v. Riverside County Flood Control Dist., supra, 47 Cal.3d 550; Arreola v. County of Monterey, supra, 99
Cal.App.4th 722.) In such cases, “[t]he reasonableness of the public agency’s conduct must be determined on the facts of each
individual case, taking into consideration the public benefit and the private damages in each instance.” (Belair, supra, at p.
566.)" The documents withheld from discovery show why Caltrans, County and OCSD have
diverted storm water to state Highway 1 instead of to the Baughman property as shown in
Caltrans documents!
The Trial Court erred in exhibit #1816 showing Caltrans shoveling storm water debris into
the Oceano Community's Storm Water drainage Channel outside of Catrans 4 FT Right of
way changing the date of Stabilization with Caltrans Maintenance changes. As stated by the
Trial Court "Mr. Fry testified that any work undertaken by Cal Trans employees in the channel to help
clear the channel were most likely undertaken solely as a "good neighbor" practice by a "conscientious
employee." Exhibit #579 withheld from discovery shows photo Exhibits of Caltrans removing debris until
2002! See PDF of Exhibits.County withholding evidence from discovery until December 2, 2008
of flooding before Hwy 1 Baughman Read the Baughman Questionnaire of County Drainage
Caltrans has stated to the RWQCB regarding the videos and photos seen above and below.
"Department personnel maintain the entrance to the drainage channel by
shoveling sediment out of the channel and onto the banks. When the rain
event is over, Department staff return to remove the shoveled material."Caltrans-D-5 Pete_Riegelhuth January 12,
2009 Statement mailto...
Notice the two Caltrans workers April 2, 2008 above outside of Caltrans Right-Away
shoveling storm water debris into the Oceano Community's Storm Water Drainage Channel!
The State of California Caltrans District 5 regards this as proper maintenance according to the RWQCB
response by Caltrans! Notice the next two security videos December 19, 2007 at 3am in the morning and
November 26, 2008. Caltrans is not seen removing debris from their actions as stated by Caltrans-D-5-Pete
Riegelhulth!
The Trial Court erred in Caltrans maintenance plan exhibit #100 as Caltrans actions goes
against Caltrans Stormwater Manuals and Handbooks Caltrans has stated to the RWQCB. "it
was determined that Department roadway maintenance operations at this location are in compliance
with requirements set forth in Department Stormwater Quality Guidance Manuals."
Caltrans now after Judge Tangeman's August 5, 2008 trial decision have a legal right in California to shovel
debris into this and other drainage systems as seen in the video above November 26, 2008 !Caltrans-D-5
Pete Riegelhuth January 12, 2009 Statement the RWQCB Harvey Packard/Roger Briggs mailto...
The Trial Court has erred as Caltrans, County, OCSD and Railroads continuous and repeated
actions have not stabilized as seen in the video above November 26, 2008 after the video of
their same actions April 4, 2008. Caltrans is seen again shoveling contaminated storm water debris
outside of their four foot right of way into the Railroads storm water drainage channel. Lee v. Los Angelas
County Metropolitan Transportation Authority (2003) as cited by the Trial Court February 2, 2009 (Notice of Entry Of
Judgement)
The County of San Luis Obispo Attorney's withheld evidence until December 2, 2008 after
trial from POVE, Caltrans, OCSD, Union Pacific Railroad and us showing the County of San Luis
Obispo drainage invlovement through the Baughman property. This withholding of evidence would have
shown Judge Tangeman why Caltrans choose to raise State Highway 1 in December 2000 and why Caltrans
and the County have been using State Highway 1 as a retention basin.County withholding evidence
from discovery of flooding before Hwy 1 Baughman
The Trial Court Erred in ignoring P. 55 of the July 10, 2008 trial transcript with OCSD
requesting of the County of San Luis Obispo to change the drainage system used by the
County, Caltrans and Railroad Exhibit # 1756 The Oceano Community Service District Letter to The
County of San Luis Obispo and Southern Pacific Railroad April 21, 1983 stated in Quotes "This Channel has
been protected by use of a culvert that would conduct surface waters under Southern Pacific tracks to
what may be a bunker under the loading docks of the Pismo-Oceano Vegetable Exchange (POVE) . The
water, then, might flow to a small retention basin maintained by POVE."Caltrans and County using State
Hwy 1 for a storm water retention basin Exhibit #1756 OCSD Prescriptive Easment.
"Because this is an established drainage channel. The District feels that its full design capacity should be
available for use. Reserch, however has not clearly revealed the agency responsible for the maintenance
of the channel. Consequently , we have no idea the condition of the channel and wheather, in its present
state of maintenance, it can adequately carry the quantity of water that will be discharged. The District
is therefore notifying all those agencies that may be involved in the channel's maintenance
of its possible impending use and the degree to which it may be used."
The Trial Court erred with the Substantial evidence presented at trial showing Railroad,
Caltrans, County and OCSD making substantial design and construction to the drainage
system beginning in 1983. Plaintiff produced substantial evidence that defendants had all acted
unreasonably in their design, construction and maintenance of this drainage system used by defendants
unlike Belair v. Riverside County Flood Control District ( 1988) 47 Cal.3d 550,559. In affirming of this cited
judgment (4) and (6) are different as evidence produced and whiteness testimony of residency of land
where drainage channel is today showed no history of flooding. (6) Caltrans, County and OCSD drainage
changes since December 2000-2008 increased the risk of damage and a burden on Plaintiffs property. Law
of Inverse Condemnation -- Pollak, Vida, & Fisher
The Trial Court erred in citing Belair v. Riverside County Flood Control District ( 1988) 47
Cal.3d 550,559 as a Substantial Cause-and-effect is found in evidence produced of drainage
changes by OCSD Exhibits #1756 1983 OCSD had been warned April 29, 1983 that their drainage
changes are not the intended use of this drainage system!
The Trial Court erred as with the OCSD Daner Law Firm July 28, 2008 presenting Exhibit
#1729 BOOKOUT Exhibit #1729 April 21, 1983 letter.... Exhibit # 1729 is the same as Exhibit #1756.
This Exhibit takes all liability away from POVE with OCSD taking the community's storm water drainage
channel for other use's then storm water! Exhibit # 1768 OCSD Log Entries show that OCSD could have
abated the flooding of State Highway 1
Superior Court Judge Teresa Estrada-Mullaney in her February 2, 2009 Judgment Decision
"Notice of Judgment" States: "Judge Tangeman determined the flooding problem was "static" for
several years prior to Plaintiff's purchase of his property. Plaintiff contends the flooding is
continuous and can be abated. Plaintiff argues Defendants negligent maintenance of the
drainage system increases the frequency and severity of the flooding. That is inconsistent with
Judge Tangeman's determination that the primary culprit was POVE's improvements, rather than
negligent maintenance of the drainage system. There was no showing that Union's operation of Well No.
8 contributed to the blockage. There was no showing of the County's responsibility for maintaining the
drainage channel. There was no evidence that any accumulated debris in State's right of way contributed
to the problems in the operation of the drainage system. County, State, Union or OCSD could not
have abated the nuisance by undertaking any maintenance" (In ruling on a motion for judgment, a trial
court must decide questions of credibility, must weigh the evidence and must make findings of fact. Liengenfelter v County of
Fresno (2007) 154 Cal.App.4th 198.)
The Trial Court erred in blaming POVE for construction in the late 1970's as Judge
Tangeman recieved Exhibit #1756 showing OCSD construction in the Drainage channel.
Judge Tangeman stated regarding the letter to the County of San Luis Obispo quoted above. "So there's
no objection. Seventeen Fifty Six will be recieved. Is this one page or three pages? Mr. Belsher: Three pages,
your Honor. The Court: All Right. It's Recieved.Caltrans and County using State Hwy 1 for a storm water
retention basin. Judge Tangeman then after Trial took into evidence from the Danor Law Firm/OCSD
exhibit #1729 showing OCSD Construction in the Drainage Channel!
Judge Martin J. Tangeman Stated in his August 5, 2008 Decision regarding this video and
photo evidence above P11. "In the case of OCSD, the evidence largely consisted of the construction of
the drainage outfall from Well No. 8 In the vicinity of the culvert. While there was evidence of substantial
amounts of water being discharged from well # 8, there was an absence of evidence that such discharges
occurred contemporaneously with heavy rains and flooding problems." (Leaf, supra, 104 Cal.App.3d
at pp. 408-409.)
This video above was taken showing State Highway 1 Flooding in a non-rain event January
13, 2007 caused by OCSD Well #8 construction in the Railroads drainage channel!
Remember the Courts Statement "The Date of stabilization" approach does not apply in this case. The
evidence showed that the last improvements made to the drainage systems were constructed by Pismo
Oceano Vegetable Exchange ("POVE") in the late 1970s."
The Trial Court erred with their Acknowledgment of OCSD construction in the Storm water
drainage channel and the Substantial amounts of water being discharged daily into this storm water
drainage system from this OCSD construction . This shows no date of Stabilization with the OCSD drainage
changes since 2001 as viewed in OCSD daily logs presented as evidence to Judge Tangeman Exhibit s
#1768.
The trial Court erred on p.82 of the July 10, 2008 trial when exhibit # 1758 was entered into
evidence OCSD September 11, 1985 meeting minutes showing OCSD again changing the drainage
channel. They state: "To take the discharge line which runs underneath Highway 1 and use it to discharge
water near the Railroad Station. GM Hill stated that this would require obtaining easements from the
Depot Association and Southern Pacific."
The Trial Court then Erred in Exhibit # 1332 P. 84 of a Caltrans photo dated 1-88 G.M.R.
showing the drainage channel in 1988 before OCSD made fruther drainage changes that would block
and dredge debris into the Railroads storm water drainage system. The Trial Court admitted into evidence
Exhibits # 1331 and 1332 p. 86 as stated by the Court. "Thirteen Thirty-One And 1332 Will Be
Recieved. Overruled."
Dear Friends
News Media.pdf State Highway 1 in Oceano should not be
flooding any time it rains!
When our California Constitutional Rights are taken
away from us and our property is taken for a dangerous
public use, as Caltrans raising a State Highway and then
shoveling and Grading Contaminated Storm Water Debris into a
Storm Water Drainage Channel, it is our duty to make the public
aware; especially when their public safety has been endangered!
Please View Caltrans and County using State Hwy 1 for a storm water retention. The San Luis
Obispo Superior Court has stated August 5, 2008 regarding the flooding of State Highway 1 and Oceano
Nursery: "County, State, Union or OCSD could not have abated the nuisance by undertaking
any maintenance"
The Trial Court erred in ignoring the Most recent Inverse Condemnation case filled July 31,
2008 Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Caltrans ownership and negligent,
changing use of this drainage inlet as seen in this video is a substantial cause of the flooding of State
Highway 1. Caltrans as seen in this video has changed the date of stabilization with their history of once
removing this debris instead of shoveling it into this storm water drainage channel as seen by the Caltrans
Supervisor above!
Superior Court Judge Martin J. Tangeman in his August 5, 2008 Trial Court decision
regarding Caltrans Maintenance stated: "Mr. Fry testified that any work undertaken by Cal Trans
employees in the channel to help clear the channel were most likely undertaken solely as a "good
neighbor" practice by a "conscientious employee."
The San Luis Obispo Superior Court misheard the testimony as truly stated by Caltrans in
the Court Reporters Transcripts: “I would imagine that the loader was working in the area. The
employee who was running the loader was probably a conscientious employee and wanted to try to help.”
Court Reporters Transcripts showing Caltrans intentionally shoveling debris into this
drainage channel... November 26, 2008 photos of Caltrans actions after trial.
Caltrans after Judge Tangeman's August 5, 2008 Decision has continued their practice of shoveling storm
water debris into their four foot storm water drainage inlet as seen in this November 26, 2008 security
video!
The State of California, Caltrans at trial Stated on page 920-921 of the Court Reportor's
transcript, for July 14, 2008 regarding their shoveling dirt and debris inside the Oceano
Community’s Storm Water drainage channel as seen above: “I’m not sure what they’re doing in this
picture. It appears that they’re throwing dirt up on the bank at the base of the tree.” Question: “Is this anything
related to the buildup of sediment at the mouth of the drainage channel?” Answer. “Well it’s more grass. Well, Yeah, sediment
and grass.” Question: And where’s this material removed to when you engaged in this particular activity? Answer. “Based on
the Mud behind me at the base of the tree, I would say we where throwing it up on the bank.” Question: So you
were keeping it in the four feet that you consider to be Caltrans right-of-way? Answer. “YES” Question: And how
often have you engaged – You or your staff engaged in the particular activity? Answer. “How often does it rain down there?”
Question: Is it fairly often – Answer: “YES” Question: Based on the rainfall. Answer. “YES, just about every time it rains.”
Judge Tangeman Exhibits presented to him during trial showing Caltrans endangering
public Safety!... Notice in this video April 2, 2008 Caltrans emplyees actions in drainage channel outside of Caltrans 4 foot
right of way?
View Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Arreola v. Monterey County (6th Dist. June 25, 2002) 99
Cal.App.4th 722 [122 Cal.Rptr.2d 38]. Caltrans actions as seen in the video above goes against California Streets and
Highway code sections 720-734 particular, section 725 (Prejudical error) Arreola v. Monterey shows “An entity
with the power to control a project need not actively participate in it to suffer liability. Proof that an entity signed a contract
assuming responsibility for the project, shared a common governance with an active participant, or provided an exclusive
revenue source for the project, can establish control.”Arreola v. Monterey County (2002) Cal.App.4th[2002 Cal.
App. LEXIS 4319].
Superior Court Judge Martin J. Tangeman has stated: "The "Date of Stabilization" approach does
not apply in this case. The evidence showed that the last improvements made to the drainage systems were
constructed by Pismo Oceano Vegetable Exchange ("POVE") in the late 1970s”
These maintenance actions by Caltrans have changed the Stabilization of this drainage channel. Caltrans has intentionally raised
the State Highway in December 2000 changing the Stabilization of this drainage channel. Caltrans has then raised and lowered
this State Highway in 2001, 2002, 2003, 2006 again changing the Stabilization. Caltrans was well aware of their changing the
drainage stabilization of this drainage system with exhibit # 1757 a March 13, 1985 signed agreement with OCSD. Please view this
evidence presented to the San Luis Obispo Superior Court in this PDF file!Caltrans_intentionaly allowing State Highway 1
to flood instead of west side of Oceano Documents.pdf The Residents of Oceano at this time payed in full
$5,000.00 Dollars for Caltrans to take full responsibility for this drainage system used by Caltrans.These actions
go against California Appeals Arreola v. Monterey County (6th Dist. June 25, 2002) 99 Cal.App.4th 722 [122 Cal.Rptr.2d 38 ----
Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. These two Appeal case's show this Trial Courts Prejudicial Errors.
The Trial Court erred having commented on this video below of the Oceano Community Service District use of
this storm water drainage channel for other uses then storm water. This Community Service District PVC pipe use in a
storm water drainage channel-(Public Improvement goes against the most recent California Appeals Court Case
Law Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Notice Caltrans debris at inlet of drainage channel in
video! Both Caltrans and OCSD are seen here to be substantial contributors along with the Railroad for these drainage obsticles.
OCSD testified July 10, 2008 at trial to making drainage changes pictured below in 2001 and 2002 showing that their was no
stabilization to this drainage system. OCSD when asked "Do you have a maintenance plan for the channel or the culvert with
respect to debris?" Answered. NO, WE DO NOT. Judge Tangeman stated regarding this testimony. "County, State, Union or
OCSD could not have abated the nuisance by undertaking any maintenance"
Superior Court Judge Teresa Estrada-Mullaney in her February 2, 2009 Judgment Decision
"Notice of Judgment" States: "Judge Tangeman determined the flooding problem was "static" for several years
prior to Plaintiff's purchase of his property. Plaintiff contends the flooding is continuous and can be abated.
Plaintiff argues Defendants negligent maintenance of the drainage system increases the frequency and
severity of the flooding. That is inconsistent with Judge Tangeman's determination that the primary culprit was POVE's
improvements, rather than negligent maintenance of the drainage system. There was no showing that Union's operation of
Well No. 8 contributed to the blockage. There was no showing of the County's responsibility for maintaining the drainage
channel. There was no evidence that any accumulated debris in State's right of way contributed to the problems in the
operation of the drainage system. County, State, Union or OCSD could not have abated the nuisance by undertaking any
maintenance" View Judge Tangeman Exhibits presented to him during trial showing Caltrans, County and OCSD
continuous and repeated conduct endangering public Safety, with no Stabilization in this drainage system
pdf...
This Video December 19 2007 shows Caltrans at 3am in the morning after the State Highway had flooded
shoveling and then grading storm water debris into the Oceano Community's Storm Water Drainage
channel! This changes the stabilization of this intended use of this drainage system!
The Public can help by asking Questions of Governor Arnold Schwarzenegger,
Senator.Maldonado@sen.ca.gov and Assemblymember.blakeslee@asm.ca.gov Caltrans and
the County of San Luis Obispo could have abated the intentional flooding of California State
Highway 1 at any time for a cost of $43,295.00 presented to the Trial Court Exhibit #1790 a
September 25, 1987 Letter to the County of San Luis ObispoView
Assemblyman Blakeslee is taking action see his letter April 30, 2009
Assemblyman_Sam_Blakeslee. pdf... View Senator Abel_Maldonado. pdf knowledge. Please
view the local News Media Knowledge with Senator.Maldonado and Assembly member Sam
Blakeslee Knowledge as presented to them in this PDF file Senator Maldonado is now aware of Caltrans
actions from his response May 12, 2009 calling this a very difficult situation.
State Assemblyman Sam Bakeslee and Senator Abel Maldonado--Skoumbas v. City of Orinda
2008 New Knowledge of State Highway 1 flooding June 5, 2009... News Media knowledge of
flooding June 5, 2009 and Oceano Community Service District dredging OCSD well #8 water
up to State highway 1 June 9, 2009.
Our Local News Media--San Luis Obispo Tribune, McClatchy News, New Times, Five Cities
Times Press Recorder, Santa Maria Times are now aware of the County of San Luis Obispo, Caltrans
and Oceano Community Service District documents showing that they could have abated a small drainage,
ponding problem in the mid 80's before OCSD constructed their Well # 8 PVC pipe in this drainage channel
a and Caltrans decided to raise State Highway 1 in December 2000 as Caltrans had stated September 15,
1987 Caltrans could do. News Media Knowledge of Oceano Residents Paying $5,000.00 To
Caltrans for public Safety.pdf
Trial Court Trannscripts knowledge presented to the San Luis Obispo Tribune July 21, 2009
Public Safety with Freedom of Speach... for County Residents knowledge.
United States Senator Barbara Boxer and Congresswoman Lois Capps are now both aware of
Caltrans and the County of San Luis Obispo Actions as they both have recently acknowledged
documents presented to them.
Governor Arnold Schwarzenegger is aware of Caltrans Actions. See his-- _Response to State
HWY 1 Flooding in Oceano...
Trial exhibits presented to Judge Tangeman showing no Stabilization from drainage changes
in inverse condemnation with the Caltrans Maintenance Supervisor and his employee's
shoveling debris into the Oceano Community's Storm Water Drainage Channel! Trial
Exhibits seen by Judge Tangeman Exhibits 1516, 1513, 1514, 1468, 1469, 1470 PDF...notice
dates on photos and that Caltrans is not removing debris from State Highway 1! Notice flooding of East side
of State Highway 1 from Caltrans overlay as seen in Caltrans photos June 13, 2002. Exhibits 1466 and 1467
show Caltrans in 2000 doing proper maintenance to this drainage channel used by Caltrans. Exhibits 1464
and 1465 show Caltrans raising State highway 1 in 2000 before they removed their retaining wall in 2003.
Appeal Brief reasons and facts showing Inverse Condemnation Caltrans, County, OCSD
Railroad pdf Exhibit # 1488 of Caltrans grading storm water debris into this drainage
channel while Caltrans continues to shovel debris into this storm water drainage channel
Exhibit #1517.
The Trial Court erred regarding Inverse Condemnation and "date of Stabilization" with the
evidence above. The San Luis Obispo Court has ignored our California Constitution
(Property Rights Article I Section 19) The Trial Court Stated "Finally,the Court does not find a factual
basis to impose liability based upon allegedly increasing elevations of Highway 1 resulting from overlay projects. First, the
evidence was mixed at best as to weather the absolute elevation of Highway 1 changed in a substantial way as a result of the
"remove and replace" projects." Caltrans had previously addressed their drainage at this location and were aware
of their actions as seen in Exhibit # 579 "Overlay From Caltrans in 2001 on HWY 1." At Trial an in exhibits
drainage changes by Caltrans are seen in 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008 showing
no Stabilization! The County of San Luis Obispo withheld part of their knowledge of these
drainage changes from discovery Exhibit # 579 states: "Caltrans raising Highway 1 at 13th Street (summer
2002) Contributing to elevated flooding (inability for water to cross roadway) on northeast side of Highway 1 (at Oceano
Nursery)"County withholding evidence from discovery until December 2, 2008 of flooding before Hwy 1
Baughman
This maintenance practice by Caltrans is seen in the videos and photos; November 26, 2008,
April 2, 2008, December 19, 2007, January 4, 2007, March 22, 2005. Caltrans Claims this is
normal for Caltrans. View Caltrans January 10, 2005 OCSD meeting with Caltrans talking about
drainage. See Caltrans Response to the Regional Water Quality Control Board January 12, 2009
Caltrans-D-5 Pete_Riegelhuth January 12, 2009 Statement mailto... Caltrans Pete Riegelhuth
Stated to the RWQCB "it was determined that Department roadway maintenance operations at this location are in
compliance with requirements set forth in Department Stormwater Quality Guidance Manuals."
Caltrans shoveling debris into the Oceano Community's Storm Water Drainage channel as
recently as November 26, 2008. These photos show the Caltrans 4-Foot Right A Way with
Caltrans ownership of the Eucylptus trees.
In this video below the RWQCB has allowed the Oceano Community Service District to
dredge 4500 gallons of Well water daily through this storm water drainage system from
their December 2002 drainage changes.
The San Luis Obispo Superior Court has stated after viewing the evidence. "County, State,
Union or OCSD could not have abated the nuisance by undertaking any maintenance"
View the video below of the Oceano Community Service District Use of this Storm Water Drainage Channel,
then remember the quote above by the San Luis Obispo Superior Court "County, State, Union or OCSD could not
have abated the nuisance by undertaking any maintenance"
The Trial Court in their quote "County, State, Union or OCSD could not have abated the nuisance by
undertaking any maintenance" Erred in ignoring P. 55 of the July 10, 2008 trial transcript with
Oceano Community Service District requesting of the County of San Luis Obispo to change the drainage
system used by the County, Caltrans and Railroad Exhibit # 1756 The Oceano Community Service District
Letter to The County of San Luis Obispo and Southern Pacific Railroad April 21, 1983 stated in Quotes "This
Channel has been protected by use of a culvert that would conduct surface waters under Southern Pacific
tracks to what may be a bunker under the loading docks of the Pismo-Oceano Vegetable Exchange (POVE) .
The water, then, might flow to a small retention basin maintained by POVE."Caltrans and County using
State Hwy 1 for a storm water retention basin Exhibit #1756 OCSD Prescriptive Easment.
"Because this is an established drainage channel. The District feels that its full design capacity should be available
for use. Reserch, however has not clearly revealed the agency responsible for the maintenance of the channel.
Consequently , we have no idea the condition of the channel and wheather, in its present state of
maintenance, it can adequately carry the quantity of water that will be discharged. The District is therefore
notifying all those agencies that may be involved in the channel's maintenance of its possible impending use and the degree to
which it may be used."
The Trial Court Erred as:
An entity that has power to control a project is liable even if it does not actively participate in
it. August 2002 Supplement to the Law of Inverse Condemnation.
An entity with the power to control a project need not actively participate in it to suffer liability. Proof that an entity signed a
contract assuming responsibility for the project, shared a common governance with an active participant, or provided an
exclusive revenue source for the project, can establish control.
Arreola v. Monterey County (2002) __Cal.App.4th__ [2002 Cal. App. LEXIS 4319].
The Trial Court erred 5.2.3 Liability for Improper Maintenance Plan
Failure to act can trigger inverse condemnation liability.
A levee project failed during a heavy rainstorm, flooding plaintiffs' properties. Defendant counties' refusal to keep the channel
clear, in clear violation of Army Corps of Engineers guidelines, caused the breach. Their inaction amounted to a deliberate
policy because they had known about the flood hazard for over 20 years. Despite the danger, they allowed the channel to fill, in
order to meet Fish and Game regulations. The court held for plaintiffs, explaining that, to support inverse condemnation
liability, a plaintiff need only show that an "entity was aware of the risk posed by its public improvement and deliberately
chose a course of action--or inaction--in the face of that known risk."
Arreola v. Monterey County (2002) __Cal.App.4th__ [2002 Cal. App. LEXIS 4319].
The Trial Court erred 6.5.3 Property Historically Subject to Flooding
"Public projects not related to flood control trigger strict liability when they cause water damage to property, even if it is
historically subject to flooding.
A state highway backed up flood water onto plaintiffs' property. The appellate court concluded that the two sources of the rule
of reasonableness--traditional private water law, and Professor Van Alstyne's balancing analysis--both weighed towards strict
liability. First, traditional water law does not privilege downstream obstruction of flood water, as in the instant case. Second,
Van Alstyne's public policy analysis only permits a reasonableness approach where a project's primary purpose is to protect
plaintiffs' property. Here, the State's purpose in building the highway was to benefit the traveling public."
Arreola v. Monterey County (2002) __Cal.App.4th__ [2002 Cal. App. LEXIS 4319].
The Court Stated at trial: “I have not yet read Arreola. I understand the argument that’s going on as to strict liability
versus standard of reasonableness, in addition to the other arguments raised in Locklin in terms of substantial factor and
appointment, Causation. I understand the argument with regard to specific events or nonspecific events. I was just meaning to
focus in on Mr. Gregger’s specific arguments that I have not yet read anything on.”
The Trial Court erred with Exhibits 1874 and 1875--County Building and Construction
Permits-This is where the County of San luis Obispo required the Oceano Community's Storm Water
Retention pond changed March 27, 1985 after the County approved POVE to use the retention pond
December 13, 1984 after OCSD had informed the County that POVE could not use the Sanitary Sewer
system for wash water from POVE vegetables. The County's letter December 26, 1984 talks about County
of San Luis Obispo hazard to health toxic pesticide in a storm water retention. "To be sure
there is no hazard to health from possible concentrated amounts of toxic pesticide, we will
require a written approval by the County health Department of this on-site retention
basin." Please ask questions of Regional Water Quality Control Board?
The Trial Court erred when they stated "The "Date of Stabilization" approach does not apply in this case. The evidence
showed that the last improvements made to the drainage systems were constructed by Pismo Oceano Vegetable Exchange
("POVE") in the late 1970s." This Drainage change/construction below was done by OCSD and Caltrans in December 2002.
OCSD has stated that they discharge 4500 Gallons of their well water out of this pipe daily. Notice the debris in front of this pipe!
OCSD has testified that they do not maintain this drainage channel!
Regional Water Quality Control Board Questions affecting California residents Health and
Safety to the Pacific Ocean that need to be answered pdf Caltrans workers plowing and
shoveling flood-related debris from Highway 1 into a roadside ditch as the Regional Water
Quality Control Board states below.
"John, Pete,
As we spoke about earlier today John, here is the blog that Oceano
businessman Bill Bookout has shared with Water Board staff and other
agencies: http://www.oceanonurseryflooding.blogspot.com/
This blog includes photos and videos of Caltrans maintenance workers
plowing and shoveling flood-related debris from Highway 1 into a roadside
ditch. Mr. Bookout says the Caltrans maintenance supervisor is David Fry
(sp?). Mr. Bookout asserts that this activity is causing a nearby culvert beneath the railroad tracks to become clogged with
debris, which exacerbates flooding of his property.
Caltrans' NPDES stormwater permit prohibits the discharge of wastes or
wastewater from road sweeping vehicles or from other maintenance or
construction activities to any surface waters or to any storm drain leading
to surface water bodies. This maintenance activity appears to violate this
prohibition. Please direct your maintenance staff to immediately discontinue this activity. Any flood-related debris
should be scooped up and properly disposed of in an appropriate location. If we receive any further
complaints regarding this activity, we may find Caltrans in
violation of its NPDES requirements and pursue formal enforcement action.
Thank you for your attention to this matter.
--Matt Thompson
Regional Water Quality Control Board
Central Coast Region
895 Aerovista Place, Suite 101
San Luis Obispo, California 93401
V (805) 549-3159
F (805) 788-3572"
The Regional Water Quality Control Board was able to understand Caltrans maintenance
Staff illegal actions as seen by the trial court. Unfortunatly, the trial court has stated. "County,
State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" Caltrans D-
5 Pete Riegelhtuth NPDES Coordinator January 12, 2009 E-Mail Statement!...
The Trial Court erred as Caltrans' NPDES stormwater permit prohibits the discharge of wastes or
wastewater from road sweeping vehicles or from other maintenance or construction activities to any surface
waters or to any storm drain leading to surface water bodies. The Trial Court viewed the Videos and
Photos of Caltrans actions! See Judge Tangeman Exhibits presented to him during trial
showing Caltrans endangering public Safety!...
As in Arreola v. County of Monterey County trying to make a Deal ignoring public Safety of
County residents .pdf County of San Luis Obispo knowing of theirs and Caltrans responsibilities for
their drianage changes! This is a question for our State Representatives and news media to
make public as seen in these documents.
The Trial Court erred as seen in the County's February 6, 2007 letter above. “As to the “fix” the
defendants did agree that it does not make sense to resolve the plaintiff’s damage claim unless the problem has bee rectified.
Otherwise, subsequent flooding will cause subsequent litigation.” The County's Attorney's previously stated
July 18, 2006 "It remains my position that the County has a Right to allow its water to flow downhill and it is the
responsibility of the downhill property owners to dispose of that water in an appropriate fashion." See Skoumbas v.
City of Orinda (2008) 165 Cal.App.4th 783. Arreola v. County of Monterey(2002) 99
Cal.App.4th 722. As to government liability! The February 2, 2009 Trial Court decision has taken away
this ability to stand up to Constitutional Rights in California!
The Trial Court has erred Ullery v. County of Conta Costa, supra 2002 Cal.3d 562, It was
shown at trial that County of San Luis Obispo, Caltrans and OCSD have all designed, Improved,
Maintained, altered and repaired this man made drainage channel since installing the Oceano sanitation
line in the late 1960's.Caltrans 1953 Aerial Photo Exhibit #1871 Knowledge of Hwy Drainage changes and
Baughman Property!...
The Trial Court erred with allowing the County of San Luis Obispo withholding and changing
of evidence Defendant_County August 22, 2008_of_SLO_Oppositi... County of San Luis obispo
chose not to provide all requested information in discovery until December 2, 2008 several months after
trial showing why the County and Caltrans were using State Highway 1 13th and Paso Robles Streets along
with Oceano Nursery for storing contaminated storm water.
This is Caltrans Response to the RWQCB that now affects all of California residents as seen
in their September 15, 1987 quote above. "Due to past litigation, the Department is no longer responsible or
allowed
to maintain the channel located off of the Caltrans right of way. If you
would like further information about the drainage situation and the
maintenance effort at this location, which has a history beyond what can
be detailed in an e-mail, please let me know so that I can arrange a
meeting with Department staff familiar with the drainage challenges and
restrictions at this site.
Respectfully,
Pete Riegelhuth
D-5 NPDES Coordinator"
Office 805-549-3375
Cell 805-305-7726
Fax 805-542-4746"
john_papathakis@dot.ca.gov
Marissa Nishikawa" marissa nishikawa@dot.ca.gov Pete Riegelhuth
pete_riegelhuth@dot.ca.gov
In Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. As cited to the Trial Court. “We conclude that
in order to prove the type of governmental conduct that will support liability in inverse condemnation it is
enough to show that the entity was aware of the risk posed by its public improvement and deliberately chose
a course of action – or inaction – in the face of that known risk.”Judge Tangeman Exhibits presented to him
during trial showing Caltrans County and OCSD aware of the risk posed by their improvements Safety!...
The Trial Court erred as cited by the Trial Court as in Skoumbas v. City of Orinda, where
Arreola v. County of Monterey is mentioned. "Where a public improvement is unreasonably a substantial
cause of the plaintiff’s damage, a public agency may be liable for its role in diverting surface water in order to protect urban
areas from flooding. (See Bunch v. Coachella Valley Water Dist., supra, 15 Cal.4th 432; Locklin v. City of Lafayette, supra, 7
Cal.4th 327; Belair v. Riverside County Flood Control Dist., supra, 47 Cal.3d 550; Arreola v. County of Monterey, supra, 99
Cal.App.4th 722.) In such cases, “[t]he reasonableness of the public agency’s conduct must be determined on the facts of each
individual case, taking into consideration the public benefit and the private damages in each instance.” (Belair, supra, at p.
566.)" The documents withheld from discovery show why Caltrans, County and OCSD have
diverted storm water to state Highway 1 instead of to the Baughman property as shown in
Caltrans documents!
The Trial Court erred in exhibit #1816 showing Caltrans shoveling storm water debris into
the Oceano Community's Storm Water drainage Channel outside of Catrans 4 FT Right of
way changing the date of Stabilization with Caltrans Maintenance changes. As stated by the
Trial Court "Mr. Fry testified that any work undertaken by Cal Trans employees in the channel to help
clear the channel were most likely undertaken solely as a "good neighbor" practice by a "conscientious
employee." Exhibit #579 withheld from discovery shows photo Exhibits of Caltrans removing debris until
2002! See PDF of Exhibits.County withholding evidence from discovery until December 2, 2008
of flooding before Hwy 1 Baughman Read the Baughman Questionnaire of County Drainage
Caltrans has stated to the RWQCB regarding the videos and photos seen above and below.
"Department personnel maintain the entrance to the drainage channel by
shoveling sediment out of the channel and onto the banks. When the rain
event is over, Department staff return to remove the shoveled material."Caltrans-D-5 Pete_Riegelhuth January 12,
2009 Statement mailto...
Notice the two Caltrans workers April 2, 2008 above outside of Caltrans Right-Away
shoveling storm water debris into the Oceano Community's Storm Water Drainage Channel!
The State of California Caltrans District 5 regards this as proper maintenance according to the RWQCB
response by Caltrans! Notice the next two security videos December 19, 2007 at 3am in the morning and
November 26, 2008. Caltrans is not seen removing debris from their actions as stated by Caltrans-D-5-Pete
Riegelhulth!
The Trial Court erred in Caltrans maintenance plan exhibit #100 as Caltrans actions goes
against Caltrans Stormwater Manuals and Handbooks Caltrans has stated to the RWQCB. "it
was determined that Department roadway maintenance operations at this location are in compliance
with requirements set forth in Department Stormwater Quality Guidance Manuals."
Caltrans now after Judge Tangeman's August 5, 2008 trial decision have a legal right in California to shovel
debris into this and other drainage systems as seen in the video above November 26, 2008 !Caltrans-D-5
Pete Riegelhuth January 12, 2009 Statement the RWQCB Harvey Packard/Roger Briggs mailto...
The Trial Court has erred as Caltrans, County, OCSD and Railroads continuous and repeated
actions have not stabilized as seen in the video above November 26, 2008 after the video of
their same actions April 4, 2008. Caltrans is seen again shoveling contaminated storm water debris
outside of their four foot right of way into the Railroads storm water drainage channel. Lee v. Los Angelas
County Metropolitan Transportation Authority (2003) as cited by the Trial Court February 2, 2009 (Notice of Entry Of
Judgement)
The County of San Luis Obispo Attorney's withheld evidence until December 2, 2008 after
trial from POVE, Caltrans, OCSD, Union Pacific Railroad and us showing the County of San Luis
Obispo drainage invlovement through the Baughman property. This withholding of evidence would have
shown Judge Tangeman why Caltrans choose to raise State Highway 1 in December 2000 and why Caltrans
and the County have been using State Highway 1 as a retention basin.County withholding evidence
from discovery of flooding before Hwy 1 Baughman
The Trial Court Erred in ignoring P. 55 of the July 10, 2008 trial transcript with OCSD
requesting of the County of San Luis Obispo to change the drainage system used by the
County, Caltrans and Railroad Exhibit # 1756 The Oceano Community Service District Letter to The
County of San Luis Obispo and Southern Pacific Railroad April 21, 1983 stated in Quotes "This Channel has
been protected by use of a culvert that would conduct surface waters under Southern Pacific tracks to
what may be a bunker under the loading docks of the Pismo-Oceano Vegetable Exchange (POVE) . The
water, then, might flow to a small retention basin maintained by POVE."Caltrans and County using State
Hwy 1 for a storm water retention basin Exhibit #1756 OCSD Prescriptive Easment.
"Because this is an established drainage channel. The District feels that its full design capacity should be
available for use. Reserch, however has not clearly revealed the agency responsible for the maintenance
of the channel. Consequently , we have no idea the condition of the channel and wheather, in its present
state of maintenance, it can adequately carry the quantity of water that will be discharged. The District
is therefore notifying all those agencies that may be involved in the channel's maintenance
of its possible impending use and the degree to which it may be used."
The Trial Court erred with the Substantial evidence presented at trial showing Railroad,
Caltrans, County and OCSD making substantial design and construction to the drainage
system beginning in 1983. Plaintiff produced substantial evidence that defendants had all acted
unreasonably in their design, construction and maintenance of this drainage system used by defendants
unlike Belair v. Riverside County Flood Control District ( 1988) 47 Cal.3d 550,559. In affirming of this cited
judgment (4) and (6) are different as evidence produced and whiteness testimony of residency of land
where drainage channel is today showed no history of flooding. (6) Caltrans, County and OCSD drainage
changes since December 2000-2008 increased the risk of damage and a burden on Plaintiffs property. Law
of Inverse Condemnation -- Pollak, Vida, & Fisher
The Trial Court erred in citing Belair v. Riverside County Flood Control District ( 1988) 47
Cal.3d 550,559 as a Substantial Cause-and-effect is found in evidence produced of drainage
changes by OCSD Exhibits #1756 1983 OCSD had been warned April 29, 1983 that their drainage
changes are not the intended use of this drainage system!
The Trial Court erred as with the OCSD Daner Law Firm July 28, 2008 presenting Exhibit
#1729 BOOKOUT Exhibit #1729 April 21, 1983 letter.... Exhibit # 1729 is the same as Exhibit #1756.
This Exhibit takes all liability away from POVE with OCSD taking the community's storm water drainage
channel for other use's then storm water! Exhibit # 1768 OCSD Log Entries show that OCSD could have
abated the flooding of State Highway 1
Superior Court Judge Teresa Estrada-Mullaney in her February 2, 2009 Judgment Decision
"Notice of Judgment" States: "Judge Tangeman determined the flooding problem was "static" for
several years prior to Plaintiff's purchase of his property. Plaintiff contends the flooding is
continuous and can be abated. Plaintiff argues Defendants negligent maintenance of the
drainage system increases the frequency and severity of the flooding. That is inconsistent with
Judge Tangeman's determination that the primary culprit was POVE's improvements, rather than
negligent maintenance of the drainage system. There was no showing that Union's operation of Well No.
8 contributed to the blockage. There was no showing of the County's responsibility for maintaining the
drainage channel. There was no evidence that any accumulated debris in State's right of way contributed
to the problems in the operation of the drainage system. County, State, Union or OCSD could not
have abated the nuisance by undertaking any maintenance" (In ruling on a motion for judgment, a trial
court must decide questions of credibility, must weigh the evidence and must make findings of fact. Liengenfelter v County of
Fresno (2007) 154 Cal.App.4th 198.)
The Trial Court erred in blaming POVE for construction in the late 1970's as Judge
Tangeman recieved Exhibit #1756 showing OCSD construction in the Drainage channel.
Judge Tangeman stated regarding the letter to the County of San Luis Obispo quoted above. "So there's
no objection. Seventeen Fifty Six will be recieved. Is this one page or three pages? Mr. Belsher: Three pages,
your Honor. The Court: All Right. It's Recieved.Caltrans and County using State Hwy 1 for a storm water
retention basin. Judge Tangeman then after Trial took into evidence from the Danor Law Firm/OCSD
exhibit #1729 showing OCSD Construction in the Drainage Channel!
Judge Martin J. Tangeman Stated in his August 5, 2008 Decision regarding this video and
photo evidence above P11. "In the case of OCSD, the evidence largely consisted of the construction of
the drainage outfall from Well No. 8 In the vicinity of the culvert. While there was evidence of substantial
amounts of water being discharged from well # 8, there was an absence of evidence that such discharges
occurred contemporaneously with heavy rains and flooding problems." (Leaf, supra, 104 Cal.App.3d
at pp. 408-409.)
This video above was taken showing State Highway 1 Flooding in a non-rain event January
13, 2007 caused by OCSD Well #8 construction in the Railroads drainage channel!
Remember the Courts Statement "The Date of stabilization" approach does not apply in this case. The
evidence showed that the last improvements made to the drainage systems were constructed by Pismo
Oceano Vegetable Exchange ("POVE") in the late 1970s."
The Trial Court erred with their Acknowledgment of OCSD construction in the Storm water
drainage channel and the Substantial amounts of water being discharged daily into this storm water
drainage system from this OCSD construction . This shows no date of Stabilization with the OCSD drainage
changes since 2001 as viewed in OCSD daily logs presented as evidence to Judge Tangeman Exhibit s
#1768.
The trial Court erred on p.82 of the July 10, 2008 trial when exhibit # 1758 was entered into
evidence OCSD September 11, 1985 meeting minutes showing OCSD again changing the drainage
channel. They state: "To take the discharge line which runs underneath Highway 1 and use it to discharge
water near the Railroad Station. GM Hill stated that this would require obtaining easements from the
Depot Association and Southern Pacific."
The Trial Court then Erred in Exhibit # 1332 P. 84 of a Caltrans photo dated 1-88 G.M.R.
showing the drainage channel in 1988 before OCSD made fruther drainage changes that would block
and dredge debris into the Railroads storm water drainage system. The Trial Court admitted into evidence
Exhibits # 1331 and 1332 p. 86 as stated by the Court. "Thirteen Thirty-One And 1332 Will Be
Recieved. Overruled."
Dear Friends News Media.pdf State Highway 1 in Oceano should not be flooding any time it rains! When our California Constitutional Rights are taken away from us and our property is taken for a dangerous public use, as Caltrans raising a State Highway and then shoveling and Grading Contaminated Storm Water Debris into a Storm Water Drainage Channel, it is our duty to make the public aware; especially when their public safety has been endangered! Please View Caltrans and County using State Hwy 1 for a storm water retention. The San Luis Obispo Superior Court has stated August 5, 2008 regarding the flooding of State Highway 1 and Oceano Nursery: "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance"
The Trial Court erred in ignoring the Most recent Inverse Condemnation case filled July 31, 2008 Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Caltrans ownership and negligent, changing use of this drainage inlet as seen in this video is a substantial cause of the flooding of State Highway 1. Caltrans as seen in this video has changed the date of stabilization with their history of once removing this debris instead of shoveling it into this storm water drainage channel as seen by the Caltrans Supervisor above!
Superior Court Judge Martin J. Tangeman in his August 5, 2008 Trial Court decision regarding Caltrans Maintenance stated: "Mr. Fry testified that any work undertaken by Cal Trans employees in the channel to help clear the channel were most likely undertaken solely as a "good neighbor" practice by a "conscientious employee." The San Luis Obispo Superior Court misheard the testimony as truly stated by Caltrans in the Court Reporters Transcripts: “I would imagine that the loader was working in the area. The employee who was running the loader was probably a conscientious employee and wanted to try to help.” Court Reporters Transcripts showing Caltrans intentionally shoveling debris into this drainage channel... November 26, 2008 photos of Caltrans actions after trial.
Caltrans after Judge Tangeman's August 5, 2008 Decision has continued their practice of shoveling storm water debris into their four foot storm water drainage inlet as seen in this November 26, 2008 security video!
The State of California, Caltrans at trial Stated on page 920-921 of the Court Reportor's transcript, for July 14, 2008 regarding their shoveling dirt and debris inside the Oceano Community’s Storm Water drainage channel as seen above: “I’m not sure what they’re doing in this picture. It appears that they’re throwing dirt up on the bank at the base of the tree.” Question: “Is this anything related to the buildup of sediment at the mouth of the drainage channel?” Answer. “Well it’s more grass. Well, Yeah, sediment and grass.” Question: And where’s this material removed to when you engaged in this particular activity? Answer. “Based on the Mud behind me at the base of the tree, I would say we where throwing it up on the bank.” Question: So you were keeping it in the four feet that you consider to be Caltrans right-of-way? Answer. “YES” Question: And how often have you engaged – You or your staff engaged in the particular activity? Answer. “How often does it rain down there?” Question: Is it fairly often – Answer: “YES” Question: Based on the rainfall. Answer. “YES, just about every time it rains.” Judge Tangeman Exhibits presented to him during trial showing Caltrans endangering public Safety!... Notice in this video April 2, 2008 Caltrans emplyees actions in drainage channel outside of Caltrans 4 foot right of way?
View Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Arreola v. Monterey County (6th Dist. June 25, 2002) 99 Cal.App.4th 722 [122 Cal.Rptr.2d 38]. Caltrans actions as seen in the video above goes against California Streets and Highway code sections 720-734 particular, section 725 (Prejudical error) Arreola v. Monterey shows “An entity with the power to control a project need not actively participate in it to suffer liability. Proof that an entity signed a contract assuming responsibility for the project, shared a common governance with an active participant, or provided an exclusive revenue source for the project, can establish control.”Arreola v. Monterey County (2002) Cal.App.4th[2002 Cal. App. LEXIS 4319]. Superior Court Judge Martin J. Tangeman has stated: "The "Date of Stabilization" approach does not apply in this case. The evidence showed that the last improvements made to the drainage systems were constructed by Pismo Oceano Vegetable Exchange ("POVE") in the late 1970s”
These maintenance actions by Caltrans have changed the Stabilization of this drainage channel. Caltrans has intentionally raised the State Highway in December 2000 changing the Stabilization of this drainage channel. Caltrans has then raised and lowered this State Highway in 2001, 2002, 2003, 2006 again changing the Stabilization. Caltrans was well aware of their changing the drainage stabilization of this drainage system with exhibit # 1757 a March 13, 1985 signed agreement with OCSD. Please view this evidence presented to the San Luis Obispo Superior Court in this PDF file!Caltrans_intentionaly allowing State Highway 1 to flood instead of west side of Oceano Documents.pdf The Residents of Oceano at this time payed in full $5,000.00 Dollars for Caltrans to take full responsibility for this drainage system used by Caltrans.These actions go against California Appeals Arreola v. Monterey County (6th Dist. June 25, 2002) 99 Cal.App.4th 722 [122 Cal.Rptr.2d 38 ----Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. These two Appeal case's show this Trial Courts Prejudicial Errors.
The Trial Court erred having commented on this video below of the Oceano Community Service District use of this storm water drainage channel for other uses then storm water. This Community Service District PVC pipe use in a storm water drainage channel-(Public Improvement goes against the most recent California Appeals Court Case Law Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Notice Caltrans debris at inlet of drainage channel in video! Both Caltrans and OCSD are seen here to be substantial contributors along with the Railroad for these drainage obsticles. OCSD testified July 10, 2008 at trial to making drainage changes pictured below in 2001 and 2002 showing that their was no stabilization to this drainage system. OCSD when asked "Do you have a maintenance plan for the channel or the culvert with respect to debris?" Answered. NO, WE DO NOT. Judge Tangeman stated regarding this testimony. "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance"
Superior Court Judge Teresa Estrada-Mullaney in her February 2, 2009 Judgment Decision "Notice of Judgment" States: "Judge Tangeman determined the flooding problem was "static" for several years prior to Plaintiff's purchase of his property. Plaintiff contends the flooding is continuous and can be abated. Plaintiff argues Defendants negligent maintenance of the drainage system increases the frequency and severity of the flooding. That is inconsistent with Judge Tangeman's determination that the primary culprit was POVE's improvements, rather than negligent maintenance of the drainage system. There was no showing that Union's operation of Well No. 8 contributed to the blockage. There was no showing of the County's responsibility for maintaining the drainage channel. There was no evidence that any accumulated debris in State's right of way contributed to the problems in the operation of the drainage system. County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" View Judge Tangeman Exhibits presented to him during trial showing Caltrans, County and OCSD continuous and repeated conduct endangering public Safety, with no Stabilization in this drainage system pdf...
This Video December 19 2007 shows Caltrans at 3am in the morning after the State Highway had flooded shoveling and then grading storm water debris into the Oceano Community's Storm Water Drainage channel! This changes the stabilization of this intended use of this drainage system!
The Public can help by asking Questions of Governor Arnold Schwarzenegger, Senator.Maldonado@sen.ca.gov and Assemblymember.blakeslee@asm.ca.gov Caltrans and the County of San Luis Obispo could have abated the intentional flooding of California State Highway 1 at any time for a cost of $43,295.00 presented to the Trial Court Exhibit #1790 a September 25, 1987 Letter to the County of San Luis ObispoView
Assemblyman Blakeslee is taking action see his letter April 30, 2009 Assemblyman_Sam_Blakeslee. pdf... View Senator Abel_Maldonado. pdf knowledge. Please view the local News Media Knowledge with Senator.Maldonado and Assembly member Sam Blakeslee Knowledge as presented to them in this PDF file Senator Maldonado is now aware of Caltrans actions from his response May 12, 2009 calling this a very difficult situation.
State Assemblyman Sam Bakeslee and Senator Abel Maldonado--Skoumbas v. City of Orinda 2008 New Knowledge of State Highway 1 flooding June 5, 2009... News Media knowledge of flooding June 5, 2009 and Oceano Community Service District dredging OCSD well #8 water up to State highway 1 June 9, 2009.
Our Local News Media--San Luis Obispo Tribune, McClatchy News, New Times, Five Cities Times Press Recorder, Santa Maria Times are now aware of the County of San Luis Obispo, Caltrans and Oceano Community Service District documents showing that they could have abated a small drainage, ponding problem in the mid 80's before OCSD constructed their Well # 8 PVC pipe in this drainage channel a and Caltrans decided to raise State Highway 1 in December 2000 as Caltrans had stated September 15, 1987 Caltrans could do. News Media Knowledge of Oceano Residents Paying $5,000.00 To Caltrans for public Safety.pdf
Trial Court Trannscripts knowledge presented to the San Luis Obispo Tribune July 21, 2009 Public Safety with Freedom of Speach... for County Residents knowledge.
United States Senator Barbara Boxer and Congresswoman Lois Capps are now both aware of Caltrans and the County of San Luis Obispo Actions as they both have recently acknowledged documents presented to them.
Governor Arnold Schwarzenegger is aware of Caltrans Actions. See his-- _Response to State HWY 1 Flooding in Oceano...
Trial exhibits presented to Judge Tangeman showing no Stabilization from drainage changes in inverse condemnation with the Caltrans Maintenance Supervisor and his employee's shoveling debris into the Oceano Community's Storm Water Drainage Channel! Trial Exhibits seen by Judge Tangeman Exhibits 1516, 1513, 1514, 1468, 1469, 1470 PDF...notice dates on photos and that Caltrans is not removing debris from State Highway 1! Notice flooding of East side of State Highway 1 from Caltrans overlay as seen in Caltrans photos June 13, 2002. Exhibits 1466 and 1467 show Caltrans in 2000 doing proper maintenance to this drainage channel used by Caltrans. Exhibits 1464 and 1465 show Caltrans raising State highway 1 in 2000 before they removed their retaining wall in 2003. Appeal Brief reasons and facts showing Inverse Condemnation Caltrans, County, OCSD Railroad pdf Exhibit # 1488 of Caltrans grading storm water debris into this drainage channel while Caltrans continues to shovel debris into this storm water drainage channel Exhibit #1517.
The Trial Court erred regarding Inverse Condemnation and "date of Stabilization" with the evidence above. The San Luis Obispo Court has ignored our California Constitution (Property Rights Article I Section 19) The Trial Court Stated "Finally,the Court does not find a factual basis to impose liability based upon allegedly increasing elevations of Highway 1 resulting from overlay projects. First, the evidence was mixed at best as to weather the absolute elevation of Highway 1 changed in a substantial way as a result of the "remove and replace" projects." Caltrans had previously addressed their drainage at this location and were aware of their actions as seen in Exhibit # 579 "Overlay From Caltrans in 2001 on HWY 1." At Trial an in exhibits drainage changes by Caltrans are seen in 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008 showing no Stabilization! The County of San Luis Obispo withheld part of their knowledge of these drainage changes from discovery Exhibit # 579 states: "Caltrans raising Highway 1 at 13th Street (summer 2002) Contributing to elevated flooding (inability for water to cross roadway) on northeast side of Highway 1 (at Oceano Nursery)"County withholding evidence from discovery until December 2, 2008 of flooding before Hwy 1 Baughman
This maintenance practice by Caltrans is seen in the videos and photos; November 26, 2008, April 2, 2008, December 19, 2007, January 4, 2007, March 22, 2005. Caltrans Claims this is normal for Caltrans. View Caltrans January 10, 2005 OCSD meeting with Caltrans talking about drainage. See Caltrans Response to the Regional Water Quality Control Board January 12, 2009 Caltrans-D-5 Pete_Riegelhuth January 12, 2009 Statement mailto... Caltrans Pete Riegelhuth Stated to the RWQCB "it was determined that Department roadway maintenance operations at this location are in compliance with requirements set forth in Department Stormwater Quality Guidance Manuals."
Caltrans shoveling debris into the Oceano Community's Storm Water Drainage channel as recently as November 26, 2008. These photos show the Caltrans 4-Foot Right A Way with Caltrans ownership of the Eucylptus trees.
In this video below the RWQCB has allowed the Oceano Community Service District to dredge 4500 gallons of Well water daily through this storm water drainage system from their December 2002 drainage changes.
The San Luis Obispo Superior Court has stated after viewing the evidence. "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance"
View the video below of the Oceano Community Service District Use of this Storm Water Drainage Channel, then remember the quote above by the San Luis Obispo Superior Court "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance"
The Trial Court in their quote "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" Erred in ignoring P. 55 of the July 10, 2008 trial transcript with Oceano Community Service District requesting of the County of San Luis Obispo to change the drainage system used by the County, Caltrans and Railroad Exhibit # 1756 The Oceano Community Service District Letter to The County of San Luis Obispo and Southern Pacific Railroad April 21, 1983 stated in Quotes "This Channel has been protected by use of a culvert that would conduct surface waters under Southern Pacific tracks to what may be a bunker under the loading docks of the Pismo-Oceano Vegetable Exchange (POVE) . The water, then, might flow to a small retention basin maintained by POVE."Caltrans and County using State Hwy 1 for a storm water retention basin Exhibit #1756 OCSD Prescriptive Easment. "Because this is an established drainage channel. The District feels that its full design capacity should be available for use. Reserch, however has not clearly revealed the agency responsible for the maintenance of the channel. Consequently , we have no idea the condition of the channel and wheather, in its present state of maintenance, it can adequately carry the quantity of water that will be discharged. The District is therefore notifying all those agencies that may be involved in the channel's maintenance of its possible impending use and the degree to which it may be used."
The Trial Court Erred as: An entity that has power to control a project is liable even if it does not actively participate in it. August 2002 Supplement to the Law of Inverse Condemnation. An entity with the power to control a project need not actively participate in it to suffer liability. Proof that an entity signed a contract assuming responsibility for the project, shared a common governance with an active participant, or provided an exclusive revenue source for the project, can establish control. Arreola v. Monterey County (2002) __Cal.App.4th__ [2002 Cal. App. LEXIS 4319].
The Trial Court erred 5.2.3 Liability for Improper Maintenance Plan Failure to act can trigger inverse condemnation liability. A levee project failed during a heavy rainstorm, flooding plaintiffs' properties. Defendant counties' refusal to keep the channel clear, in clear violation of Army Corps of Engineers guidelines, caused the breach. Their inaction amounted to a deliberate policy because they had known about the flood hazard for over 20 years. Despite the danger, they allowed the channel to fill, in order to meet Fish and Game regulations. The court held for plaintiffs, explaining that, to support inverse condemnation liability, a plaintiff need only show that an "entity was aware of the risk posed by its public improvement and deliberately chose a course of action--or inaction--in the face of that known risk." Arreola v. Monterey County (2002) __Cal.App.4th__ [2002 Cal. App. LEXIS 4319].
The Trial Court erred 6.5.3 Property Historically Subject to Flooding "Public projects not related to flood control trigger strict liability when they cause water damage to property, even if it is historically subject to flooding. A state highway backed up flood water onto plaintiffs' property. The appellate court concluded that the two sources of the rule of reasonableness--traditional private water law, and Professor Van Alstyne's balancing analysis--both weighed towards strict liability. First, traditional water law does not privilege downstream obstruction of flood water, as in the instant case. Second, Van Alstyne's public policy analysis only permits a reasonableness approach where a project's primary purpose is to protect plaintiffs' property. Here, the State's purpose in building the highway was to benefit the traveling public." Arreola v. Monterey County (2002) __Cal.App.4th__ [2002 Cal. App. LEXIS 4319].
The Court Stated at trial: “I have not yet read Arreola. I understand the argument that’s going on as to strict liability versus standard of reasonableness, in addition to the other arguments raised in Locklin in terms of substantial factor and appointment, Causation. I understand the argument with regard to specific events or nonspecific events. I was just meaning to focus in on Mr. Gregger’s specific arguments that I have not yet read anything on.”
The Trial Court erred with Exhibits 1874 and 1875--County Building and Construction Permits-This is where the County of San luis Obispo required the Oceano Community's Storm Water Retention pond changed March 27, 1985 after the County approved POVE to use the retention pond December 13, 1984 after OCSD had informed the County that POVE could not use the Sanitary Sewer system for wash water from POVE vegetables. The County's letter December 26, 1984 talks about County of San Luis Obispo hazard to health toxic pesticide in a storm water retention. "To be sure there is no hazard to health from possible concentrated amounts of toxic pesticide, we will require a written approval by the County health Department of this on-site retention basin." Please ask questions of Regional Water Quality Control Board?
The Trial Court erred when they stated "The "Date of Stabilization" approach does not apply in this case. The evidence showed that the last improvements made to the drainage systems were constructed by Pismo Oceano Vegetable Exchange ("POVE") in the late 1970s." This Drainage change/construction below was done by OCSD and Caltrans in December 2002. OCSD has stated that they discharge 4500 Gallons of their well water out of this pipe daily. Notice the debris in front of this pipe! OCSD has testified that they do not maintain this drainage channel!
Regional Water Quality Control Board Questions affecting California residents Health and Safety to the Pacific Ocean that need to be answered pdf Caltrans workers plowing and shoveling flood-related debris from Highway 1 into a roadside ditch as the Regional Water Quality Control Board states below.
"John, Pete, As we spoke about earlier today John, here is the blog that Oceano businessman Bill Bookout has shared with Water Board staff and other agencies: http://www.oceanonurseryflooding.blogspot.com/
This blog includes photos and videos of Caltrans maintenance workers plowing and shoveling flood-related debris from Highway 1 into a roadside ditch. Mr. Bookout says the Caltrans maintenance supervisor is David Fry (sp?). Mr. Bookout asserts that this activity is causing a nearby culvert beneath the railroad tracks to become clogged with debris, which exacerbates flooding of his property.
Caltrans' NPDES stormwater permit prohibits the discharge of wastes or wastewater from road sweeping vehicles or from other maintenance or construction activities to any surface waters or to any storm drain leading to surface water bodies. This maintenance activity appears to violate this prohibition. Please direct your maintenance staff to immediately discontinue this activity. Any flood-related debris should be scooped up and properly disposed of in an appropriate location. If we receive any further complaints regarding this activity, we may find Caltrans in violation of its NPDES requirements and pursue formal enforcement action. Thank you for your attention to this matter. --Matt Thompson Regional Water Quality Control Board Central Coast Region 895 Aerovista Place, Suite 101 San Luis Obispo, California 93401 V (805) 549-3159 F (805) 788-3572"
The Regional Water Quality Control Board was able to understand Caltrans maintenance Staff illegal actions as seen by the trial court. Unfortunatly, the trial court has stated. "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" Caltrans D-5 Pete Riegelhtuth NPDES Coordinator January 12, 2009 E-Mail Statement!...
The Trial Court erred as Caltrans' NPDES stormwater permit prohibits the discharge of wastes or wastewater from road sweeping vehicles or from other maintenance or construction activities to any surface waters or to any storm drain leading to surface water bodies. The Trial Court viewed the Videos and Photos of Caltrans actions! See Judge Tangeman Exhibits presented to him during trial showing Caltrans endangering public Safety!...
As in Arreola v. County of Monterey County trying to make a Deal ignoring public Safety of County residents .pdf County of San Luis Obispo knowing of theirs and Caltrans responsibilities for their drianage changes! This is a question for our State Representatives and news media to make public as seen in these documents.
The Trial Court erred as seen in the County's February 6, 2007 letter above. “As to the “fix” the defendants did agree that it does not make sense to resolve the plaintiff’s damage claim unless the problem has bee rectified. Otherwise, subsequent flooding will cause subsequent litigation.” The County's Attorney's previously stated July 18, 2006 "It remains my position that the County has a Right to allow its water to flow downhill and it is the responsibility of the downhill property owners to dispose of that water in an appropriate fashion." See Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. As to government liability! The February 2, 2009 Trial Court decision has taken away this ability to stand up to Constitutional Rights in California!
The Trial Court has erred Ullery v. County of Conta Costa, supra 2002 Cal.3d 562, It was shown at trial that County of San Luis Obispo, Caltrans and OCSD have all designed, Improved, Maintained, altered and repaired this man made drainage channel since installing the Oceano sanitation line in the late 1960's.Caltrans 1953 Aerial Photo Exhibit #1871 Knowledge of Hwy Drainage changes and Baughman Property!...
The Trial Court erred with allowing the County of San Luis Obispo withholding and changing of evidence Defendant_County August 22, 2008_of_SLO_Oppositi... County of San Luis obispo chose not to provide all requested information in discovery until December 2, 2008 several months after trial showing why the County and Caltrans were using State Highway 1 13th and Paso Robles Streets along with Oceano Nursery for storing contaminated storm water.
This is Caltrans Response to the RWQCB that now affects all of California residents as seen in their September 15, 1987 quote above. "Due to past litigation, the Department is no longer responsible or allowed to maintain the channel located off of the Caltrans right of way. If you would like further information about the drainage situation and the maintenance effort at this location, which has a history beyond what can be detailed in an e-mail, please let me know so that I can arrange a meeting with Department staff familiar with the drainage challenges and restrictions at this site. Respectfully, Pete Riegelhuth D-5 NPDES Coordinator" Office 805-549-3375 Cell 805-305-7726 Fax 805-542-4746" john_papathakis@dot.ca.gov Marissa Nishikawa" marissa nishikawa@dot.ca.gov Pete Riegelhuth pete_riegelhuth@dot.ca.gov
In Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. As cited to the Trial Court. “We conclude that in order to prove the type of governmental conduct that will support liability in inverse condemnation it is enough to show that the entity was aware of the risk posed by its public improvement and deliberately chose a course of action – or inaction – in the face of that known risk.”Judge Tangeman Exhibits presented to him during trial showing Caltrans County and OCSD aware of the risk posed by their improvements Safety!...
The Trial Court erred as cited by the Trial Court as in Skoumbas v. City of Orinda, where Arreola v. County of Monterey is mentioned. "Where a public improvement is unreasonably a substantial cause of the plaintiff’s damage, a public agency may be liable for its role in diverting surface water in order to protect urban areas from flooding. (See Bunch v. Coachella Valley Water Dist., supra, 15 Cal.4th 432; Locklin v. City of Lafayette, supra, 7 Cal.4th 327; Belair v. Riverside County Flood Control Dist., supra, 47 Cal.3d 550; Arreola v. County of Monterey, supra, 99 Cal.App.4th 722.) In such cases, “[t]he reasonableness of the public agency’s conduct must be determined on the facts of each individual case, taking into consideration the public benefit and the private damages in each instance.” (Belair, supra, at p. 566.)" The documents withheld from discovery show why Caltrans, County and OCSD have diverted storm water to state Highway 1 instead of to the Baughman property as shown in Caltrans documents!
The Trial Court erred in exhibit #1816 showing Caltrans shoveling storm water debris into the Oceano Community's Storm Water drainage Channel outside of Catrans 4 FT Right of way changing the date of Stabilization with Caltrans Maintenance changes. As stated by the Trial Court "Mr. Fry testified that any work undertaken by Cal Trans employees in the channel to help clear the channel were most likely undertaken solely as a "good neighbor" practice by a "conscientious employee." Exhibit #579 withheld from discovery shows photo Exhibits of Caltrans removing debris until 2002! See PDF of Exhibits.County withholding evidence from discovery until December 2, 2008 of flooding before Hwy 1 Baughman Read the Baughman Questionnaire of County Drainage
Caltrans has stated to the RWQCB regarding the videos and photos seen above and below. "Department personnel maintain the entrance to the drainage channel by shoveling sediment out of the channel and onto the banks. When the rain event is over, Department staff return to remove the shoveled material."Caltrans-D-5 Pete_Riegelhuth January 12, 2009 Statement mailto...
Notice the two Caltrans workers April 2, 2008 above outside of Caltrans Right-Away shoveling storm water debris into the Oceano Community's Storm Water Drainage Channel! The State of California Caltrans District 5 regards this as proper maintenance according to the RWQCB response by Caltrans! Notice the next two security videos December 19, 2007 at 3am in the morning and November 26, 2008. Caltrans is not seen removing debris from their actions as stated by Caltrans-D-5-Pete Riegelhulth!
The Trial Court erred in Caltrans maintenance plan exhibit #100 as Caltrans actions goes against Caltrans Stormwater Manuals and Handbooks Caltrans has stated to the RWQCB. "it was determined that Department roadway maintenance operations at this location are in compliance with requirements set forth in Department Stormwater Quality Guidance Manuals."
Caltrans now after Judge Tangeman's August 5, 2008 trial decision have a legal right in California to shovel debris into this and other drainage systems as seen in the video above November 26, 2008 !Caltrans-D-5 Pete Riegelhuth January 12, 2009 Statement the RWQCB Harvey Packard/Roger Briggs mailto...
The Trial Court has erred as Caltrans, County, OCSD and Railroads continuous and repeated actions have not stabilized as seen in the video above November 26, 2008 after the video of their same actions April 4, 2008. Caltrans is seen again shoveling contaminated storm water debris outside of their four foot right of way into the Railroads storm water drainage channel. Lee v. Los Angelas County Metropolitan Transportation Authority (2003) as cited by the Trial Court February 2, 2009 (Notice of Entry Of Judgement)
The County of San Luis Obispo Attorney's withheld evidence until December 2, 2008 after trial from POVE, Caltrans, OCSD, Union Pacific Railroad and us showing the County of San Luis Obispo drainage invlovement through the Baughman property. This withholding of evidence would have shown Judge Tangeman why Caltrans choose to raise State Highway 1 in December 2000 and why Caltrans and the County have been using State Highway 1 as a retention basin.County withholding evidence from discovery of flooding before Hwy 1 Baughman
The Trial Court Erred in ignoring P. 55 of the July 10, 2008 trial transcript with OCSD requesting of the County of San Luis Obispo to change the drainage system used by the County, Caltrans and Railroad Exhibit # 1756 The Oceano Community Service District Letter to The County of San Luis Obispo and Southern Pacific Railroad April 21, 1983 stated in Quotes "This Channel has been protected by use of a culvert that would conduct surface waters under Southern Pacific tracks to what may be a bunker under the loading docks of the Pismo-Oceano Vegetable Exchange (POVE) . The water, then, might flow to a small retention basin maintained by POVE."Caltrans and County using State Hwy 1 for a storm water retention basin Exhibit #1756 OCSD Prescriptive Easment.
"Because this is an established drainage channel. The District feels that its full design capacity should be available for use. Reserch, however has not clearly revealed the agency responsible for the maintenance of the channel. Consequently , we have no idea the condition of the channel and wheather, in its present state of maintenance, it can adequately carry the quantity of water that will be discharged. The District is therefore notifying all those agencies that may be involved in the channel's maintenance of its possible impending use and the degree to which it may be used."
The Trial Court erred with the Substantial evidence presented at trial showing Railroad, Caltrans, County and OCSD making substantial design and construction to the drainage system beginning in 1983. Plaintiff produced substantial evidence that defendants had all acted unreasonably in their design, construction and maintenance of this drainage system used by defendants unlike Belair v. Riverside County Flood Control District ( 1988) 47 Cal.3d 550,559. In affirming of this cited judgment (4) and (6) are different as evidence produced and whiteness testimony of residency of land where drainage channel is today showed no history of flooding. (6) Caltrans, County and OCSD drainage changes since December 2000-2008 increased the risk of damage and a burden on Plaintiffs property. Law of Inverse Condemnation -- Pollak, Vida, & Fisher The Trial Court erred in citing Belair v. Riverside County Flood Control District ( 1988) 47 Cal.3d 550,559 as a Substantial Cause-and-effect is found in evidence produced of drainage changes by OCSD Exhibits #1756 1983 OCSD had been warned April 29, 1983 that their drainage changes are not the intended use of this drainage system!
The Trial Court erred as with the OCSD Daner Law Firm July 28, 2008 presenting Exhibit #1729 BOOKOUT Exhibit #1729 April 21, 1983 letter.... Exhibit # 1729 is the same as Exhibit #1756. This Exhibit takes all liability away from POVE with OCSD taking the community's storm water drainage channel for other use's then storm water! Exhibit # 1768 OCSD Log Entries show that OCSD could have abated the flooding of State Highway 1
Superior Court Judge Teresa Estrada-Mullaney in her February 2, 2009 Judgment Decision "Notice of Judgment" States: "Judge Tangeman determined the flooding problem was "static" for several years prior to Plaintiff's purchase of his property. Plaintiff contends the flooding is continuous and can be abated. Plaintiff argues Defendants negligent maintenance of the drainage system increases the frequency and severity of the flooding. That is inconsistent with Judge Tangeman's determination that the primary culprit was POVE's improvements, rather than negligent maintenance of the drainage system. There was no showing that Union's operation of Well No. 8 contributed to the blockage. There was no showing of the County's responsibility for maintaining the drainage channel. There was no evidence that any accumulated debris in State's right of way contributed to the problems in the operation of the drainage system. County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" (In ruling on a motion for judgment, a trial court must decide questions of credibility, must weigh the evidence and must make findings of fact. Liengenfelter v County of Fresno (2007) 154 Cal.App.4th 198.)
The Trial Court erred in blaming POVE for construction in the late 1970's as Judge Tangeman recieved Exhibit #1756 showing OCSD construction in the Drainage channel. Judge Tangeman stated regarding the letter to the County of San Luis Obispo quoted above. "So there's no objection. Seventeen Fifty Six will be recieved. Is this one page or three pages? Mr. Belsher: Three pages, your Honor. The Court: All Right. It's Recieved.Caltrans and County using State Hwy 1 for a storm water retention basin. Judge Tangeman then after Trial took into evidence from the Danor Law Firm/OCSD exhibit #1729 showing OCSD Construction in the Drainage Channel!
Judge Martin J. Tangeman Stated in his August 5, 2008 Decision regarding this video and photo evidence above P11. "In the case of OCSD, the evidence largely consisted of the construction of the drainage outfall from Well No. 8 In the vicinity of the culvert. While there was evidence of substantial amounts of water being discharged from well # 8, there was an absence of evidence that such discharges occurred contemporaneously with heavy rains and flooding problems." (Leaf, supra, 104 Cal.App.3d at pp. 408-409.)
This video above was taken showing State Highway 1 Flooding in a non-rain event January 13, 2007 caused by OCSD Well #8 construction in the Railroads drainage channel! Remember the Courts Statement "The Date of stabilization" approach does not apply in this case. The evidence showed that the last improvements made to the drainage systems were constructed by Pismo Oceano Vegetable Exchange ("POVE") in the late 1970s."
The Trial Court erred with their Acknowledgment of OCSD construction in the Storm water drainage channel and the Substantial amounts of water being discharged daily into this storm water drainage system from this OCSD construction . This shows no date of Stabilization with the OCSD drainage changes since 2001 as viewed in OCSD daily logs presented as evidence to Judge Tangeman Exhibit s #1768.
The trial Court erred on p.82 of the July 10, 2008 trial when exhibit # 1758 was entered into evidence OCSD September 11, 1985 meeting minutes showing OCSD again changing the drainage channel. They state: "To take the discharge line which runs underneath Highway 1 and use it to discharge water near the Railroad Station. GM Hill stated that this would require obtaining easements from the Depot Association and Southern Pacific."
The Trial Court then Erred in Exhibit # 1332 P. 84 of a Caltrans photo dated 1-88 G.M.R. showing the drainage channel in 1988 before OCSD made fruther drainage changes that would block and dredge debris into the Railroads storm water drainage system. The Trial Court admitted into evidence Exhibits # 1331 and 1332 p. 86 as stated by the Court. "Thirteen Thirty-One And 1332 Will Be Recieved. Overruled."
The Trial Court erred when Judge Martin J. Tangeman States P.11: "Plaintiff also alleged that OCSD should be liable because its outfall pipe acted as a dam to capture debris in times of flooding, and/or that at times of discharge from its outfall pipe, debris may have been pushed into the culvert." "In each of these cases, the Court finds that the evidence is too speculative to support liability for inverse condemnation. No studies were undertaken or evidence provided showing the effect, if any, of either of these factors during times of flooding." (Leaf, supra, 104 Cal.App.3d at pp. 408-409.)
The Trial Court erred in ignoring expert testomony "OCSD well pipe adding silt and debris during well operation" as OCSD has testified to discharging 4500 gallons of well water daily into this storm water drainage system!Judge Tangeman Exhibits presented to him during trial showing Caltrans County and OCSD aware of the risk posed by their improvements Safety!...
The Trial Court erred as the public entity’s were unable disprove the identified six substantial factors which have caused this flooding condition to exist. These factors are as presented to the trial court: (1) Blocking the natural drainage way with a pipe too small for the conditions, (2) OCSD Well #8 Discharge Pipe adding silt and debris during normal well operation, (3) Pipe capacity compromised by poorly designed extension, (4) Upstream watershed conditions worsened, (5) Decrease in storage volume at inlet, and (6) Lack of maintenance. These six factors were present during all twelve flooding events and form the basis for expert opinion. If plaintiff identifies the substantial factors which cause PLAINTIFF’S SUPPLEMENTAL TRIAL BRIEF RE: INVERSE CONDEMNATION the injury, the burden shifts to the public entity to produce evidence that would show that other forces alone produced the injury. California State Automobile Assn. v City of Palo Alto (2006) 138 Cal.App.4th 474, 483. The defendants or the Trial Court in this case have not! View the studies presented to the Trial Court inwhich the Trial Court could not dispute from any evidence presented by the public enitities. Additional_Calculations.pdf see liability Supplemental_Expert Calculations.pdf see Recent Developments in Inverse Condemnation Law The debris as seen in the photo above being dredged into the Railroads storm water drainage inlet pipe is coming from Caltrans trees in their four foot Right of way.
The Trial Court erred p. 12 in their August 5, 2008 decision regarding Skoumas v. City of Orinda 2008 DJDAR 12042, quoting from Belair v. Riverside County Flood Control District (1988) 47 Cal.3d 550,559 "Plaintiff has failed to prove that OCSD's conduct has a "substantial cause-and effect relationship" to Plaintiff's property damage, especially given the likelhood that "other forces alone produced the injury." The Trial Courts should have paid attention to Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Diversion of surface waters into a natural watercourse creates liability only if it causes an unreasonable risk of harm under Locklin factors and is a substantial cause of damage. Flood control system that “fails in heavy rain and causes damage to property that has historically been subject to flooding” governed by rule of reasonableness. City could be liable even if its storm drain pipe discharged into a private pipe and the damage occurred “downstream.” ”We conclude the critical inquiry is not whether the entire system was a public improvement, but rather whether the City acted reasonably in its maintenance and control over those portions of the drainage system it does own.” “Substantial cause-and-effect relationship” is enough for liability even for downstream flooding.
The Trial Court erred in ignoring Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. As cited to the Trial Court. “We conclude that in order to prove the type of governmental conduct that will support liability in inverse condemnation it is enough to show that the entity was aware of the risk posed by its public improvement and deliberately chose a course of action – or inaction – in the face of that known risk.” “Knowing that failure to properly maintain the Project channel posed a significant risk of flooding, Counties nevertheless permitted the channel to deteriorate over a long period of years by failing to take effective action to overcome the fiscal, regulatory, and environmental impediments to keeping the Project channel clear. This is sufficient evidence to support the trial court’s finding of a deliberate and unreasonable plan of maintenance.” State diversion or obstruction of surface water onto land “not historically subject to flooding” is not protected by reasonableness rule, but results in strict liability.
The Trial Court erred as exhibit #1757 in the index July 10, 2008 stated a March 13, 08 Agreement. "There exists an unsatisfactory drainage condition on State Route 1 at Mile Post 12.4" District contemplates the construction of a new fire station at this time, and has expressed a desire to participate in State's contemplated drainage improvement, to provide for additional drainage that will result from the construction of the new fire station." This exhibit P.109 is a March 13th, 1985, Agreement between the State and O.C.S.D. to correct a unsatisfactory drainage condition. The State of California took Oceano Residents money of $5,000.00 and full responsibility for this drainage at this time!---Arreola v. Monterey County (2002) Cal.App.4th-[2002 Cal. App. LEXIS 4319]. (An entity that has power to control a project is liable even if it does not actively participate in it. An entity with the power to control a project need not actively participate in it to suffer liability. Proof that an entity signed a contract assuming responsibility for the project, shared a common governance with an active participant, or provided an exclusive revenue source for the project, can establish control.) Arreola v. Monterey County (2002) Cal.App.4th-[2002 Cal. App. LEXIS 4319].
The Trial Court erred as exhibit #1790 P.58 July 10, 2008 showed Caltrans, County, OCSD and Southern Pacific responsibility as: "An entity that has power to control a project is liable even if it does not actively participate in it. An entity with the power to control a project need not actively participate in it to suffer liability. Proof that an entity signed a contract assuming responsibility for the project, shared a common governance with an active participant, or provided an exclusive revenue source for the project, can establish control." Arreola v. Monterey County (2002) Cal.App.4th-[2002 Cal. App. LEXIS 4319].
The Trial Court erred P. 13 as then stated: "Plaintiff has also failed to show the required connection between County's conduct and plaintiff's damages." Neither County, Caltrans, Railroad or OCSD have been unable to dispute the six substantial factors which have caused the flooding condition to exist!
The Trial Court erred with the sworn testimony of the Oceano Community Service District July 10, 2008 with the exhibits 1341-1343 of OCSD flooding State Highway 1 in their testimony Question P. 86-87 "The Photograph in 1341, is that a fairly -- is that an example of the discharging operation? Answer. YES Question Now, The pipe discharges at the culvert. There is a drainage channel I'm sure you're aware of that runs back to Highway 1? Anwswer. YES.
Judge Martin J. Tangeman P.6 in his August 5, 2008 decision erred with his theory of Date of Stabilization as seen above in his Statements. He admits OCSD construction in the drainage channel since the late 1970s. This goes against his written statement: "The "Date of Stabilization" approach does not apply in this case. The evidence showed that the last improvements made to the drainage system were constructed by Pismo Oceano Vegetable Exchange ("POVE") in the late 1970s. Fruther, the evidence demonstrated that the flooding problem was relatively consistent and static for several years prior to the date that Plaintiff purchased his property."
The Trial Court has unfairly blamed POVE saying that there has been no changes (Improvements) to this drainage system since the late 1970s???? County approved building permits pertaining to the retention pond used by Caltrans, County, Railroad and OCSD were presented and accepted by Judge Tangeman Exhibit # 1875! The County of San luis Obispo States: "12/13/84 Jak Floor Drain system drainage to sump + then to retention pond approved by Fred Norton, must have approval of this system by Health Dept."
The Trial Court erred P. 134 POVE acknowledged the County and the Regional Water Quality Control Board requiring drainage changes to the retention pond used by Caltrans, OCSD, Railroad and County as drainage change permits showed in 1984 presented to the trial court! The Trial Court erred P. 129 July 10, 2008 in Exhibit # 1776 May 24, 1985 involving County, Caltrans, POVE, RWQCB and the use of State Highway drainage mixed with produce drainage through Railroad property with Caltrans existing easments of use of this drainage system and their responsibility for drainage.
These are quotes from Exhibits presented to the Trial Court exhibit # 1785 May 14, 1987 This is after the County had required drainage improvement changes in 1985 on Railroad property for the retention pond used by the County, Caltrans and OCSD after issueing building permits to POVE! “We decided that there were two basic solutions to the problem. They are:” “# 2 Construct a detention or retention basin above the Railroad on their property and leave the existing culvert as is.” “Tim Smith and Glenn Priddy we discussed the flooding problems that would be created by passing the water under the railroad through a new culvert. That would require the County buy an easement south and west of the railroad to maintain a channel to protect the residences in the low lands.”Cal_Trans_Documents.pdf
OCSD at trial July 10, 2008 acknowledged that this type of discharge runs back to State Highway 1! View Photo Exhibit #1342 presented to Judge Tangeman of OCSD Drainage Improvements, changes and"obstacles" dredging 4500 Gallons of their Well #8 Water and debris into the Railroads Storm Water Drainage channel daily. This is a substantial cause of how debris gets packed into the Railroads storm water drainage system. The County Health Department has approved this according to OCSD P. 85 July 10, 2008 testimony. See Exhibit Evidence_presented_to_Judge Tangeman showing the effects of OCSD pipe during storms# 1278, 1337, 1338.1342..
Judge Tangeman erred in his August 5, 2008 decision regarding Cal Trans as he States: "There Was Insufficent Evidence To Hold The State of California Liable For Inverse Condemnation" The Court then States. "Nor was there substantial evidence that debris accumulated within the State's right-of-way (as opposed to the debris accumulated on private property outside the boundaries of the right-of -way) contributed in any meaningful way to the problems in the operation of the drainage facilities on Railroad and POVE properties." SeeTrial Exhibits seen by Judge Tangeman...
Employee Negligence & Vicarious Liability (Cal. Govt. Code 815.2)According to Government Code Section 815.2, a public entity may be held vicariously liable for the act or omission of an employee acting within the scope of employment, notwithstanding provisions of immunity.
Superior Court Judge Teresa Estrada-Mullaney in her February 2, 2009 Judgment Decision "Notice of Judgment" States: "Judge Tangeman determined the flooding problem was "static" for several years prior to Plaintiff's purchase of his property. Plaintiff contends the flooding is continuous and can be abated. Plaintiff argues Defendants negligent maintenance of the drainage system increases the frequency and severity of the flooding. That is inconsistent with Judge Tangeman's determination that the primary culprit was POVE's improvements, rather than negligent maintenance of the drainage system. There was no showing that Union's operation of Well No. 8 contributed to the blockage. There was no showing of the County's responsibility for maintaining the drainage channel. There was no evidence that any accumulated debris in State's right of way contributed to the problems in the operation of the drainage system. County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" "The situation has been stable and static such that all of plaintiff's remaining causes of action accrued prior to mid 2002 and therefore are barred by the applicable statute of limitations. (CCP &338)" Supplemental Expert Calculations presented to Judge Tangeman.pdf
The Trial Court erred in their belief that Union's operation of Well No. 8. This well is owned by and operated daily by the Oceano Community Service District! The County's Responsibility runs from above this drainage channel to the Pacific Ocean!
The Trial Court States: "Similar to his rulings as to the County and State, Judge Tangeman concluded Plaintiff's evidence was too speculative to support liability against OCSD for its drainage outfall from Well No. 8 or its improvement of real property. As to Union, Judge Tangeman determined the evidence failed to support a basis for liability for improvements made by POVE and found that the improvements were constructed without invoking powers of eminent domain. Judge Tangeman did , however, allude to Union's negligent omission to enlarge the culvert. Union is not entitled to judgment on the pleadings based upon causation issue preclusion. Nevertheless, the statute of limitations applies equally to all Defendents."
March 17, 2009 we have filled an appeal to the February 2, 2009 Judgement decision Supplemental Appeal Brief showing inverse Condemnation actions by Caltrans, County, OCSD and Railroad v3.pdf
See evidence presented to Judge tangeman...See drainage changes by Caltrans in December 2000 to present Exhibit Evidence_presented_to_Judge Tangeman showing the effects of OCSD Well # 8 pipe blocking accumulated debris during storms that could be abated with maintenance # 1278, 1337, 1338.1342.. This evidence presented to judge Tangeman shows no date of Stabilization with OCSD construction in the drainage channel, mixed with caltrans drainage changes since December 2000!
The Trial Court erred as to OCSD Improvements/Construction in the Storm Water Drainage Channel as this was invoking powers of eminent domain beginning in 1983 with OCSD maintaining this system! This is seen in photo exhibit # 579 UPRR withheld from discovery!
The Trial Court erred regarding exhibit # 1730 OCSD Prescriptive Easements over private property P. 10 in their decision statement "There was no evidence offered that the Railroad objected to any uses that were made of its property."The Railroad had warned OCSD on April 29, 1983 of the intended use of this channel. “ It would appear that the channel mentioned in your letter was probably created to handle storm water runoff, and not the purpose to which you now intend to utilize it.” See Photo Exhibit # 579 UPRR
Judge Teresa Estrada Mullaney-in her January 5, 2009 decision cited-Skoumbas v. City of Orinda "Substantial Cause-and effect relationship" and is enough for government liability. Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Diversion of surface waters into a natural watercourse creates liability only if it causes an unreasonable risk of harm under Locklin factors and is a substantial cause of damage. Flood control system that “fails in heavy rain and causes damage to property that has historically been subject to flooding” governed by rule of reasonableness. City could be liable even if its storm drain pipe discharged into a private pipe and the damage occurred “downstream.” ”We conclude the critical inquiry is not whether the entire system was a public improvement, but rather whether the City acted reasonably in its maintenance and control over those portions of the drainage system it does own.” “Substantial cause-and-effect relationship” is enough for liability even for downstream flooding.Caltrans, County Tort Liability Concerns Wests side of Oceano Baughman Property... Judge Tangemen cited in his decision Exhibits 1278, 1337, and 1338 showing OCSD dredging and damming debris with their Prescriptive Easement of this drainage channel from their construction and improvements in this drainage channel! Evidence_Exhibits_presented_to_Judge Tangeman of OCSD pipe in Railroad inlet daming and blocking debris!...
The County of San Luis Obispo withheld substantial evidence from discovery regarding inverse condemnation from Caltrans drainage maintenance changes showing no date of stabilization from Caltrans historic drainage channel maintenance in 2002 and prior. Caltrans after this documented maintenance in 2002 began shoveling and grading debis into this drainage system!
Caltrans stated July 28, 2008. "and no evidence was offered (by any qualified and credible testomony) to show that this pavement increased the height of the road bed." The Trial Court erred in their desision stating "First the evidence was mixed at best as to weather the absolute elevation of Highway 1 changed in a substantial way as a result of the "remove and replace" projects." Here the Trial Court admits the substantial evidence, that there has been no date of Stabilization thus making the State of California (Caltrans) liable for inverse condemnation! County withholding evidence from discovery of flooding before Hwy 1 Baughman The County of San Luis Obispo testimony July 10, 2008 P.40 shows their knowledge of channel maintenance as seen in evidence withheld from discovery of Caltrans maintaining this channel! UPRR photo Exhibit #579 Shows Caltrans accrual date raising Highway 1 changing the date of stabilization as they continued to make drainage changes to 2006. Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848.
It is unfortunate that I have had to be a whistle blower with local governments actions! The fact that my California Constitutional rights under Article I, Section 19 have been violated and public safety has been put in danger is not acceptable!
The County of San Luis Obispo making drainage changes downstream and then collecting $30,000.00 per year rental income from where this storm water was once stored is unacceptable! See County of San luis Obispo board of Supervisors knowledge in the 2004 drainage study.
By bringing this to the public's attention I have lost my business (Oceano Nursery) and I am now in the process of having to close and sale off my inventory at my other business Plumerias Garden and gifts to fund my appeal filed March 17, 2009. I am faced with $222,316.88 in government legal fees for a small drainage problem in the early eighties that only would have cost the County, Caltrans, OCSD, Railroad and POVE $43,295.00 to fix at the time!
This story with the video and photo evidence above and below, needs to be heard in the National News Media on 60 Minutes, 20/20, ABC News Night line, CBS, Fox News etc.
I would like to thank Dave Congalton and his guests for the first radio interview seen below Dave Congalton on News Talk 920 KVEC: The Public Continues to Turn ...04/02/2009 interview at 4pm Bill Bookout from the Oceano Nursery has fought Cal Trans and the Oceano CSD for years over flooding problems on his property. We'll hear his story. 04/02/2009
The News Media will need to understand the drainage changes west of State Highway 1 made by the State and the County of San Luis Obispo. View Caltrans_1953_Aerial_Photo_Knowledge of Hwy Drainage and Baughman Property!... of Caltrans and County drainage changes to this storm water drainage channel and the Pacific Ocean! The States Highway drainage when this problem is finally corrected will have to have the Storm water stored on County property west of State Highway 1 in order not to pollute the Pacific Ocean or flood properties West of State Highway 1 as has been Caltrans and the County of San Luis Obispo Concerns! This may have an impact on the Oceano Airport becoming wetlands and possibly having to change the State Parks Dunes entrenance south of its current location for environmental concerns! View
The video above from an OCSD Meeting January 10, 2005 Exhibit # 1804 explains the Oceano Community's drainage system and why State Highway 1 is flooding when it rains! Oceano residents in this video talk about the following photos of the OCSD white pipe being illegal with OCSD Stating: "that issue is being addressed"! OCSD States that they have no authority to put a pipe on someone elses property? OCSD talks about Paso Robles and thirteenth Streets flooding at the same time State Highway 1 Floods. OCSD talks about their observing the clearing out eucalyptus debris from the ditch on Railroad property and that it stops the flooding. OCSD talks about the benefits of no flooding by pressure washing out the culvert with the sand and debris in it along with OCSD Staff recommending putting a grate in front of the Railroad pipe!
The County Of San Luis Obispo January 10, 2005 talks about their recent requirements for curb gutter and sidewalk and problems this is causing. They mention the cost of Storing their water coming off of County streets on the west side of the State Highway 1 from a drainage study and that being about a Million Dollars. They mention the cost of the drainage study they had recently done. The County talks about their Liability. The County talks about regulations they had made just two or three years prior and then takes some blame, they then blame Cal Trans, the Railroad and the vegetable Exchange?
The County states in their Drainage Study "2.1.4.6" "Caltrans The California Department of Transportation (Caltrans) operates drainage facilities that are associated with the State Highway System. Highway 1 experiences flooding near 13th and 19th Street. Caltrans currently clears the drainage channel between 13th Street and the railroad."
Cal Trans States January 10, 2005 that by law they will not take the lead for a flood control problem. They state if they fix this drainage problem they would be responsible for this system from beginning to end, meaning to the Ocean? Cal Trans, talks about their elevation changes in December 2000 to the State Highway and correcting these changes in 2003 along with changes that need to be made to a Sidewalk they had recently installed. They State that they have communicated with the Railroad and that the Railroad would be willing to participate in a drainage solution. (This Leaves the only party that does not want to fix the unsafe and unsanitary Storm Water Drainage problem involving County Airport property west of highway 1 to be San Luis Obispo County? See Exhibit Quotes Below 1785,1795, 1786, 1788, 1789,1796 Please view this Oceano Community's Service District meeting video January 10, 2005. The First speaker is the County of San Luis Obispo pay close attention to the County's statements followed by Cal Trans. OCSD_FLOOD_MEETING_JANUARY_10__2...
The San Luis Obispo Superior Court erred when they mislabeled this substantial evidence of causation of flooding with these-33 photo Trial Exhibits seen by Judge Tangeman... Showing no Date Of Stabilization of the Oceano Storm Water drainage channel since Caltrans drainage changes in December 2000 and 2002. These photo documents stated "Photos Relating To O.C.S.D. Involvement" when they should of said Caltrans Negligence in raising a State Highway as seen in exhibit # 1470 and then #1516 of Caltrans supervision Shoveling and Grading Storm Water Debris into a Community's Storm Water Drainage Channel outside of their Right of Away! Exhibits 1463- 1516 Show Caltrans raising State Highway 1 beginning in 2000 while maintaining the Storm Water drainage channel removing debris at this time and then Grading and shoveling Debris into this channel since! This action by Caltrans since December 2000 violates Article I, Section 19 Of the California Constitution as this Evidence shows intentional negligence and is a Substantial Cause of the flooding of my property and State Highway 1!
The Trial Court erred regarding Substantial Factors/Causation Judge Tangeman States Regarding Caltrans: “Nor was there Substantial evidence that debris accumulated within the States right- of-way (as opposed to the debris accumulated on private property outside the boundaries of the right-of-way) contributed in any meaningful way to the problems in the operation of the drainage facilities on Railroad and POVE properties.” 1) Caltrans Raised State Highway 1 in December 2000 Exhibit # 1462, 1463, 1464, 1465, Caltrans photos Exhibit # 1468, 1469, 1470 of flooding east side of Highway 2) Caltrans changing drainage maintenance of drainage channel as exhibits in 2000 showed Caltrans maintenance of this channel. Exhibit # 1466, 1467, 3) Caltrans Railroad drainage inlet change December 2002 with Concrete bags installed at Railroad 24 inch pipe in channel outside of Caltrans Right-Away. Exhibit #1490, 1491 4) Caltrans Raising State highway 1 13th and Paso Robles Streets in 2003 Exhibit # 1471, 1472, 1473,1474, 5) Caltrans 2003 Drainage Change in removing a retaining wall on their property without removing debris behind wall, then allowing debris to wash into State Highway and then be graded into drainage channel as Exhibits presented to the trial court showed Exhibit #1463, 1464, 1475, 1476, 1477,1478,1479,1480, 1481,1482,1483, 1484,1485,1486,1487, 1488 6) Caltrans retaining wall Debris left in hwy and graded to side of State Highway not removed by Caltrans allowed to wash into drainage channel Exhibit # 1475, 1476, 1478, 12/29/04 Exhibit # 1479, 1477 12/31/04 Exhibit # 1480,1481, 1/1/05 Exhibit # 1482, 1/3/05 Exhibit # 1483 1/7/09 Exhibit # 1484, 1485, 1486, 1487, 1488 3/22/2005 1530, 1531, 1535 1/26/2006 , 1533,1536 1/27/08 1527 1/26/08 1520 2/8/2007 7) Caltrans Raising State highway 1 in 2006 Exhibit #1498, 1500, 1501, 15021503, 1504,1505, 1506,1507, 8) Caltrans shoveling debris into drainage channel 1/4/2007 Exhibit # 1516, 1517, 1518, 1519 of Caltrans supervisor shoveling debris into drainage channel. Exhibit 1513, 1514, 1515 of Caltrans employees shoveling debris into drainage channel 9) Caltrans Shoveling Debris into drainage channel Exhibit # 1541 10) Caltrans four foot Right away Exhibit # 1520 1527, 1530, 1537,1538,1539, 1540, 1543, 1542, 1525 Judge Tangeman States Regarding Oceano Community Service District: 11) OCSD Drainage Change 2001, 2002 Exhibit # 1768 Phil Davis Log Entries to Railroad drainage channel and inlet. 12) OCSD flushing debris from their property into drainage channel Exhibit # 1450 1/19/08 1541 6/7/08 13) OCSD POVE Pond Maintenance Exhibit # 1433, 1434, 1447, 1440, 1442, 1443, 1436,1437, 1439, 1444 1/3/2005 14) OCSD maintenance of their PVC pipe in Drainage Channel Exhibit # 1425, 1426, 1427 1/7/08 15) The Trial Court Erred with the July 10, 2008 Court Reporters Transcript regarding OCSD pipe being installed in 1985 Exhibit # 1758 As Caltrans Photos Exhibits # ?????? show P82 16) The Trial Court Erred P. 83-88 when they herd testimony of discharge into the storm water drainage system by OCSD P. 84 no permission. P85 Permission from the County Health Department exhibits 1331 and 1332 admitted. 1336-1337-1338 admitted and seen by the court 1336-1343 OCSD is seen to maintain this channel as the Trial Court saw 17) The Trial Court Erred P.96-1112 OCSD Maintaining pipe/drainage channel removing leaves and branches with the rest of the daily logs showing maintenance that did not exist prior to 2001! 18) The Trial Court from the OCSD Testimony P11 and 12 Of their August 5, 2008 decision ignored the real culprits using the drainage channel by altering the purpose of this channel! 19) The Trial Court erred with the minutes of Exhibit # 1764 p.110 July 10, 2008 20) The Trial Court Erred P 112 July 10, 2008 as they later admitted one Oceano Drainage Questionnaire showing the relevance of this exhibits from testimony by Caltrans! 21) The Trial Court Erred in their July 10, 2008 Statement P. 7 “In addition, Mr. Davis testified that plaintiff had a history of complaining about flooding prior to December 20, 2002, when he met the plaintiff on site and cut the Oceano Community Services District (“OCSD)” drainage pipe in the vicinity of the culvert.” Documents withheld from discovery showed flooding concerns on Fountain Ave and Airpark involving Mr. Davis. P. 102 “might flood his property” P.103 July 10, 2008 Answer “It is in – I think Mr. Bookout thought that possibly the pipe going inside the culvert was restricting the flow.” 22) The Trial Court Erred P7 in their August 5, 2008 in regards to Mr. Suttons Testimony as he was not employed by POVE in 2000. Mr. Sutton did not arrive in Oceano in 1996! 23) The Trial Court Erred P. 8 regarding testimony of Mr. Brebes who retired from Caltrans in 2002. Exhibits1766 and 1767 that the court sustain show brebes involvement in flooding on Fountain Ave and Airpark. Documents withheld from discovery by the County of San Luis Obispo show Caltrans Raising the Highway with Brebes involved in this drainage change. Judge Tangeman States Regarding the County of San Luis Obispo “there was no showing of the County’s responsibility for designing or maintaining the drainage channel or drainage facilities immediately downstream from Plaintiff’s property.” He ignores drainage changes P20 July 10, Statements by County!
The Trial Court erred in their statement regarding Inverse Condemnation. “In addition, however, there is substantial evidence which contradicts Plaintiff’s late proffered explanation. For example, substantial evidence was introduced by Plaintiff that this flooding problem had existed at this location for decades, going back at least to the 1980s.” This information came from the County of San Luis Obispo Attorney Clay Hall as provided to him by the County of San Luis Obispo, as the County chose to withhold additional information from discovery provided December 2, 2008. View County trying to make a Deal ignoring public Safety of County residents .pdf
The Trial Court erred as stated by Clay Hall February 6, 2007 “As to the “fix” the defendants did agree that it does not make sense to resolve the plaintiff’s damage claim unless the problem has bee rectified. Otherwise, subsequent flooding will cause subsequent litigation.” The February 2, 2009 Trial Court decision has taken away this ability to stand up to Constitutional Rights in California! 24) County Of San Luis Obispo Testimony P. 34 The Court: “The “Problem Area” Being Highway 1 And 13th And Paso Robles.” The Witness: The Problem – As Far as fixing the drainage on the lot, the – The problem was the impact of the fix on the downstream property owners, not that – not that something down there needed to be fixed in order to solve the problem upstream.” The Trial Court States P. 32 Yes. “And so why is flooding on Fountain Avenue relevant to this particular, given the witness’s answer that he’s not familiar with that issue?” Ms. Thurmond P. 33 “The Drainage problem, we haven’t even defined the drainage problem. Were getting hung up here. The problem is flooding of Bill Bookout’s property. The problem is not the overall Drainage problem in Oceano. We could go on for years on that. The Trial Court: “No, I understand. But I thought we had limited the questions to the Bookout Flooding problem. 25) Exhibit # 1769 Oceano Drainage and Flood Control Study. This Study explains the County’s Responsibility down stream. 26) Exhibit # 1769 shows County Changing of evidence Baughman property 2002 Community Drainage & Flood Control Study Questionnaire Withheld from discovery by County of San Luis Obispo. This Questionnaire was provided after trial and admitted into evidence. 27) Exhibit # 1875 Construction Permit 28) Exhibit # 1762 County Drainage Channel Behind Fountain Avenue next to Baughman Property Questionnaire withheld by County from Discovery! 29) Exhibits #1766 and 1767 1770 Judge Tangeman “Sustain”--- County’s responsibility for designing or maintaining the drainage west of State Hwy 1! 30) Exhibit # 1790 9/25/87 County’s responsibility for designing or maintaining the drainage West of State Highway 1! 31) Exhibit 1783 County Knowledge per P. 15 County Testomony letter dated 7/86? 32) Exhibit 1731 County Knowledge per P. 17 33) The Trial Court Erred stating Plaintiff has failed to prove defendants have acquired a prescriptive easement Exhibit # 1756 July 10, 2008 Court reporters transcript P.55 By Mr. Belsher “Seventeen fifty six, the first letter is a letter to the San Luis Obispo County Flood Control District and it relates to discharges at the problem area.” The Court “ So now there’s no objection. Seventeen Fifty Six will be received. Is this one page of three Pages? Mr. Belsher “Three pages your Honor.” The Court All Right. It’s Received.” To the County, POVE and Railroad notice of use of drainage channel 34) Exhibit 1787-1790 Caltrans Drainage responsibility for repair to drainage system proposal replacement of the drainage culvert. 35) Exhibit 1805 Curb Gutter and sidewalk drainage changes U.S.H.A. 36) Exhibit # 1874 Admitted P. 65 County Building permits 1875 construction permits 37) P66 July 10, 2008 County attorney admits County drainage system leading to State Hwy 1 38) The Trial Court erred July 10, 2008 P.75-76-77 when they took Mr. Priddy as an expert at the POVE pond into consideration
The Trial Court erred in “Date of Stabilization” with admitting into evidence Exhibit #579 UPRR as this document was withheld from discovery by the County of San Luis Obispo showing Caltrans drainage changes in 2001 as stated: “HWY 1 not adequate drainage on HWY 1 under the train track and overlay from Caltrans in 2001 on HWY 1” This overlay drainage change by Caltrans was not mentioned at trial and is directly linked to exhibit #1789 September 15, 1987 Caltrans Stated: “The State could raise the height of Highway one approximately one foot and leave both the County and the Oceano Community Services District the problem to solve on their own (P. Hom) Exhibit #1773-1774-1775-1777-1778-1779-1780-1781-1783-1784-1785-1786-1787-17881790-1791-1792-1793-1794-1795-1796-1797-1798and 1800 the OCSD meeting transcript testimony of Caltrans January 10, 2005 The Trial Court erred in “Date of Stabilization” with admitting into evidence Exhibit #579 UPRR as this document show a train derailment at the drainage channel inlet pipe for Union Pacific. Engineers for all defendants have never brought the train derailment into evidence? The Trial Court erred in “Date of Stabilization” with admitting into evidence Exhibit #579 UPRR that had not previously been disclosed with other documents showing OCSD knowledge from one of their Previous OCSD directors Concerns of drainage as seen in Caltrans documents exhibit # 1789-1773-1774-1775-1777-1778-1779-1780-1781-1783-1784-1785-1786-1787-17881790-1791-1792-1793-1794-1795-1796-1797-1798and 1800 the OCSD meeting transcript testimony of Caltrans January 10, 2005 (Caltrans Tort Liability concers of Flooding the Baughman property) The Trial Court erred in “Date of Stabilization” with admitting into evidence Exhibit #579 UPRR as the other 400 + documents withheld from discovery that went with the County’s possession of this documents showed the County’s drainage path and changes to the Pacific Ocean with whiteness’s Flooding west of State Highway 1. Exhibits dealing with #579 west of State highway 1 involving the County of San Luis Obispo 1792-1793-1794 Caltrans Brebes-1795-1789-1790-1791-1796-1797-1798-1799-1801-1802-1803-1815-1816-1761-1762-1764-1765-1766 Sustained by the Court 1767 Sustained by the Court1768-1770Sustained by the Court1774-1775-1776-1777-1778-1779-17801783-1785-1786- 1875-1877-1879-1880-1881-1882-1883-1884-1885- (Leaf, supra, 104 Cal.App.3d at pp. 408-409.)
If any of the above dispute the statements or evidence in this blog; please do not hesitate in contacting me or the News Media! It is my intentions to see this problem fixed once and for all! It is unfortunate to see Caltrans actions in these video's affecting public safety. I can be reached at 1-805-773-2089
Pay attention to Caltrans September 15, 1987 Department of Transportation Memorandum stating: “The State could raise the height of Highway one approximately one foot and leave both the County and the Oceano Community Services District the problem to solve on their own.” County Documents withheld from discovery show Caltrans raising State HWY 1 in 2002! Judge Tangeman admitted this new evidence in after our trial however chose to ignore this evidence in his decision!
The County of San Luis Obispo Attorney's chose to withhold evidence from Judge Martin J. Tangeman which we received after trial July 30, 2008 and December 2, 2008 showing County knowledge of Caltrans raising State Highway 1 6-10 inches since December 2000 and 2002 as Caltrans had stated they could raise the height of Highway one approximately one foot and leave both the County and the Oceano Community Services District the problem to solve on their own. View this video below December 10, 2006 from Caltrans no longer mainaining the Drainage channel since December 2002! Notice the dangers to public safety becouse Caltrans does not want to flood the Baughman property as seen in the documents withheld from discovery by the County admitted into evidence after trial!
From the Court Reporter Transcript July 10, 2008 of OCSD. Question Do you have any maintenance plan for the channel or the culvert with respect to debris? Answer. NO, WE DO NOT.
Question-Was that debris removed from the site or, as you said earlier, disposed at the top of the bank? Answer. I believe they Just threw it out with a pitch fork, on the bank.
There was no evidence presented by any of the defendents of State Highway 1 having any flooding problem other then the early 80's before Caltrans raised the State Highway in 2000-2002-along with OCSD, County and Caltrans making drainage changes in 2001 and 2002! OCSD testified "Are you concerned at all that the operation of this pipe could blow leaves and other debris into the pipe during its operation?" Answer. "Um, well we wanted to check and make sure it didn't happen." Question. "So what's your observation?" Answer. "We just look through the culvert. If you could see a culvert going a hundred feet, or whatever it goes, well it is fine"
From the Court reporter transcript Thursday July 10, 2008 The San Luis Obispo Court heard the following testimony placing the OCSD pipe directly in the Railroads Storm Water Drainage Channel and not in the Vicinity as the Court had stated in their August 5, 2008 decision! P. 83 Answer: We run the well— Right now, we’re running about five or six day a week. And we just start it in the morning, so it goes through a cycle – P.86 by Mr. Belsher: thirteen thirty-six and 1337, is this the same discharge pipe we discussed or saw in the previous photograph, only a different configuration? Answer. yes. Question. and this picture dated 2002, so does that seem as if that was the state of the – to your recollection, that the pipe was projecting into the culvert as of 2002? Answer. yes. Question: and did you oversee an extension of the pipe into the culvert that’s depicted there? Answer. yes. P. 85 Question: Are you aware of any permission sought by the district, itself for operating this pipe? Answer: Other then the Health Department, I don't know of any."
In the Court case cited by Judge Teresa Estrada -Mullaney and not Judge Tangeman Skoumbas v. City of Orinda this Diversion of surface waters into a natural watercourse creates liability. With discharge into a private pipe as seen above shows OCSD Liability. As this pipe has been in this channel over five years OCSD has obtained a prescriptive easement with Caltrans knowledge. View exhibit evidence presented to Judge Tangeman...showing no "Date of Stabilization" with Caltrans Grading and Shoveling debris into the Railroads storm water drainage channel and OCSD pipe blocking debris with their pipe in the Railroads inlet and drainage channel!
Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Diversion of surface waters into a natural watercourse creates liability only if it causes an unreasonable risk of harm under Locklin factors and is a substantial cause of damage. Flood control system that “fails in heavy rain and causes damage to property that has historically been subject to flooding” governed by rule of reasonableness. City could be liable even if its storm drain pipe discharged into a private pipe and the damage occurred “downstream.” ”We conclude the critical inquiry is not whether the entire system was a public improvement, but rather whether the City acted reasonably in its maintenance and control over those portions of the drainage system it does own.” “Substantial cause-and-effect relationship” is enough for liability even for downstream flooding.California’s Flood Liability
In Arreola v. County of Monterey (2002) Shows Caltrans, County and OCSD liability were all aware of this risk posed by its public improvement and deliberately chose a course of action- or inaction-in the face of a known risk." "Knowing that failure to properly maintain the Project channel posed a significant risk of flooding." "State diversion or obstruction of surface water onto land "not historically subject to flooding is not protected by reasonableness rule, but results in strict liability." JAMES ARREOLA et al., Plaintiffs and Respondents, v. --
Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. “We conclude that in order to prove the type of governmental conduct that will support liability in inverse condemnation it is enough to show that the entity was aware of the risk posed by its public improvement and deliberately chose a course of action – or inaction – in the face of that known risk.” “Knowing that failure to properly maintain the Project channel posed a significant risk of flooding, Counties nevertheless permitted the channel to deteriorate over a long period of years by failing to take effective action to overcome the fiscal, regulatory, and environmental impediments to keeping the Project channel clear. This is sufficient evidence to support the trial court’s finding of a deliberate and unreasonable plan of maintenance.” State diversion or obstruction of surface water onto land “not historically subject to flooding” is not protected by reasonableness rule, but results in strict liability. The above drainage changes by our local government are un acceptable knowing the safety problems that they would be creating on State Highway 1. When the Caltrans photo above was taken in 1988. Caltrans had drainage concerns west of State Highway 1 on the Baughman property as seen in the documents that the County of San Luis Obispo chose to withhold from discovery until aftet trial and December 2, 2009 five months after our trial!Caltrans_with_County_of_San_Luis... See Lagoon Changes by State and County State__Caltrans_County__RWQCB__D... PDF]
By standing up for my Constitutional Rights Judge Tangeman has ignored the evidence presented to him at trial and immediately after trial.Trial Exhibits seen by Judge Tangeman... As punishment I have now received bills from our local government of a total of $222,316.68 Caltrans $122,050.42 The County of San Luis Obispo of $31,321.18 The Oceano Community Service District $45,257.87 And Union Pacific Railroad $23,778.21 Trial_Costs_endangering_public_f... Attached in this PDF file County_trying_to_make_a_Deal.pdf is a County July 18, 2006 letter blaming Caltrans for dropping the ball with a permanent fix of State Highway 1 Drainage that would have only cost as written to Glenn Priddy of the County on September 25, 1987 $43,295.00. From these Caltrans documents it shows Caltrans does not want to fix this minor flooding problem at the time because of flooding the Baughman property and the County of San Luis Obispo does not want to purchase property to store the Highway 1 Storm Water west of State Highway 1
When the San Luis Obispo Superior Court States February 2, 2009 "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" then it is time to make the public aware that their Constitutional Rights have been taken away in San Luis Obispo County and its time to make this a National News Story!
The Trial Court erred regarding "Belair, Locklin, and Bunch embody policies that recognize that inverse condemnation recovery be equitable, that support the importance of public works projects, and that ensure that the public entity be liable only for the proportionate amount of damage caused by its actions. A conclusion furthers these policies and also has the further laudable effect of encouraging public entities to engage in flood control efforts while discouraging them from making uncompensated use of private property." (Odello Brothers v. County of Monterey (1998) 63 Cal.App.4th 778, 792.)
Exhibit # 1769 February 2004 San Luis Obispo County Oceano Drainage Flood Control Study Bookout_EstradaTentative_Ruling.... Blames POVE 100% even though Caltrans was caught shoveling and grading storm water debris into the Railroads storm water drainage channel, with OCSD using this channel to dredge 4500 gallons of well water daily? Trial Exhibits seen by Judge Tangeman... Showing Caltrans negligence! BOOKOUT_-_County_nonsuit_opp.pdf
Prescriptive easement notice by OCSD to County, POVE, And Railroad Exhibit #1758, 1730, 1729 to use drainage channel before OCSD installed their PVC pipe several Years latter! No Date of Stabilization with Caltrans Raising State Highway 1 in 2000, 2002 removing a retaining wall in 2003 grading and shoveling debris till November 26, 2008 and raising State Highway 1 again in 2006! BOOKOUT_-_Dec_of_Bookout_in_resp... October 16, 2008 County Discovery Letter!
Judge_Final_Ruling_by_County_Feb... Stating "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" Exhibit #1768 Phil Davis Log Entries. Exhibit # 1789 Caltrans Intentionally Raising State Highway 1 in December 2000 as the Had Stated in September 15, 1987 “The State could raise the height of Highway one approximately one foot and leave both the County and the Oceano Community Services District the problem to solve on their own.” Exhibit # 1800 January 10, 2005 OCSD Transcript of Drainage meeting showing flooding could be Abated--Exhibit #1804 January 10, 2005 Video of OCSD meeting! Exhibit 1816 Excerpts from Flooding video footage! P.7 Mr. Sutton was not employed by POVE in 2000! In 1996 Mr. Sutton did not live in Oceano! Mr. Brebes as County Documents withheld from discovery show his involvement with flooding of Fountain Avenue! Mr. Brebes is in the County's photo Documents withheld from discovery raising State Highway 1 in December 2000! Mr. Davis was involved in Fountain Avenue Flooding documents withheld from Discovery by County of San Luis Obispo Baughman Property!
Evidence_Exhibits_presented_to_Judge Tangeman Baughman Property flooding Exhibit # 1278, 1337, 1338... Exhibits presented to the Court 1278 shows a train de-railment with the OCSD pipe directly in the Railroads drainage pipe inlet! Exhibit #1337 dated during a storm event in 2002 shows the OCSD pvc pipe directly in the Railroad drainage inlet pipe with a water line on the pipe showing Oceano Nursery not flooding. Exhibit # 1338 is immediatly after a rain event showing debris blocked at the OCSD PVC pipe with the OCSD pipe in the Railroads storm water pipe inlet!
Bookout_-_Public_Record_Request_... After trial for documents withheld from discovery by County of San Luis Obispo. Photos of Caltrans maintaining Storm water drainage channel in 2002 and OCSD Director Baughman Property flooding west of State Highway 1 as stated in questionnaire redacted by County his name and address. County changed his statement in their drainage survey from 2002!
Judge_Mullaney_Judgement_Februar... Blames POVE 100%. Under Causation the Skoumbas case, citing Locklin v. Lafayette (1994) 7 Cal. 4th 327, 367 added --leaving out Belair, Lockilin and Bunch embody policies that recognize inverse condemnation!
Trial_Brief.pdf That the County of San Luis Obispo, Oceano Community Services District, and/or State of California - Department of Transportation owned or controlled the property which caused the dangerous condition; Supplemental_Trial_Brief_v3.pdf SUPPLMENTAL_Exhibit_List_07_07_0... Exhibit # 1878 Keith Crowe Causation. 1884, July 25, 1999 Letter to Supervisor Achadjian AMENDED_MASTER_EXHIBIT_LIST__JDP...
Exhibits into evidence showing OCSD drainage changes since December 2002. OCSD obtaining their prescriptive Easment Exhibit # 1729, #1730, OCSD told Southern Pacific Railroad April 21, 1983 in a letter
"This Channel has been protected by use of a culvert that would conduct surface waters under Southern Pacific tracks to what may be a bunker under the loading docks of the Pismo-Oceano Vegetable Exchange (POVE) . The water, then, might flow to a small retention basin maintained by POVE."
"Because this is an established drainage channel. The District feels that its full design capacity should be available for use. Research, however has not clearly revealed the agency responsible for the maintenance of the channel. Consequently, we have no idea the condition of the channel and weather, in its present state of maintenance; it can adequately carry the quantity of water that will be discharged."
Exhibit #1758 easment, along with Caltrans Drainage changes Exhibits 1554-1622, 1766, 1767, February 5, 1999 drainage meeting Fred Brebes Exhibit #1767 County_Discovery_Abuse_Baughman
Evidence_Exhibits_presented_to_Judge Tangeman Baughman Property flooding Exhibit # 1278, 1337, 1338... Exhibits presented to the Court 1278 shows a train de-railment with the OCSD pipe directly in the Railroads drainage pipe inlet! Exhibit #1337 as seen below during a storm event in December 2002 shows the OCSD pvc pipe directly in the Railroad drainage inlet pipe with a water line on the pipe showing Oceano Nursery not flooding. Exhibit # 1338 below is immediatly after a rain event showing debris blocked at the OCSD PVC pipe with the OCSD pipe in the Railroads storm water pipe inlet! As Judge Tangeman has commented on both of these photos; he was aware in his decision that this OCSD pipe does act as a dam and is directly in the Railroads drainage inlet!
Judge Martin J. Tangeman in his August 5, 2008 decision stated: "Plaintiff also alleged that OCSD should be liable because its outfall pipe acted as a dam to capture debris in times of flooding, and/or that at times of discharge from its outfall pipe, debris may have been pushed into the culvert." "In each of these cases, the Court finds that the evidence is too speculative to support liability for inverse condemnation. No studies were undertaken or evidence provided showing the effect, if any, of either of these factors during times of flooding." These photos evidence were presented to the Trial Court showing the Nursery not flooding in December 2002 with this OCSD pipe damming debris! The Trial Court Stated this Pipe was not in this drainage channel is wrong as seen in these photos. View exhibit evidence presented to Judge tangeman... Recent Developments in Inverse Condemnation Law
The Trial Court saw and heard testimony from Fred Brebes that Caltrans maintained the Oceano Community's Storm water Drainage Channel; as Caltrans documents from Fred Brebes of Caltrans Dated November 30, 1988 Shows Caltrans doing maintenance in 1983, 1984, 1985, 1986 and 1987! This photo and records were provided to the San Luis Obispo Court showing Caltrans Maintenance which Caltrans has not done since December 2002 other then push, plow and grade debris into the Oceano Community Storm Water Drainage channel as seen in prior videos and photos above. Judge Tangeman Blames POVE for the County of San Luis Obispo issuing them building permits in the 1970's! Please view these documents showing Caltrans prior maintenance, communication with the County and OCSD and their drainage changes that show why Caltrans is storing Contaminated Storm Water on State Highway 1.Caltrans, County_... This photo was taken by Caltrans in 1988 before OCSD made their Drainage changes; blocking debris in this channel!
Caltrans_with_County_of_San_Luis... OCSD_Attorney_Conflict_Phillips-... Hiring bookkeeper fiancee Judge_Final_Ruling_by_County_Feb... Decision February 2, 2009 The San Luis Obispo Court January 5, 2009 cited see Skoumbas v. City of Orinda (2008) which referenced a case (Keys V. Romley) The August 5, 2008 court decision cited Skoumas v. City of Orinda 2008. The Skoumbas case explains Government Liability! The August 5, 2008 Skoumas case is not a trial case? Judge Tangeman Saw these Video's of Caltrans shoveling debris into this drainage system during a rain storm and then blames POVE 100% for the flooding of State Highway 1! [PDF] Recent Developments in Inverse Condemnation Law Caltrans from the first video above and actions below needs to be aware from California Government Code 725 "it is unlawful for any person to do any of the following Acts: ("b")Obstruct any natural water course so as to: "(1) Prevent, impede or restrict the natural flow of waters from any State Highway into and through such water course, unless other adequate and proper drainage is provided." "(2)"Cause waters to be impounded within any State Highway, to the damage of the Highway.""(3)" "Cause interference with, or damage or hazard to public travel." See Evidence of Exhibits presented to Judge Tangeman of Caltrans grading and shoveling storm water debris into the Oceano Community's Storm Water Drainage Channel!... Caltrans has stated in an email to the Regional Water Quality Control Board January 12, 2009 as seen at the very bottom of this document--"Due to past litigation, the Department is no longer responsible or allowed to maintain the channel located off of the Caltrans right of way." Caltrans prior to this Supervisor in 2002 had maintained this Storm Water Drainage Channel as seen in these Caltrans documents presented to the San Luis Obispo Court-Cal_Trans_Documents.pdf --Caltrans, County Actions... This is negligent drainage system maintenance affecting public safety! 1985_RWQCB_Drainage_Change.pdf 1985 County/RWQCB Drainage Change-Pond OCSD Pipe-County permitsRWQCB_Public_Safety_Questions_Fe... February 18, 2009 OCSD dredging debris On February 13 and 16th 2009 State Highway 1 my property and the Oceano Community has flooded again. Caltrans according to KCOY 12 News has made a statement. "We are working with the County of San Luis Obispo and the Oceano Community Service District to find a long term solution to this flooding issue." Again please view Caltrans PDF file Cal_Trans_Documents.pdf showing why Caltrans is storing Storm Water on State Highway 1. If Pove was responsible as Judge Tangeman has stated then Caltrans would be requiring them to fix this problem instead of working with the County and OCSD! Pismo Oceano Vegetable Exchange does not shovel, dredge or Grade Debris into this Storm Water Drainage Channel as seen above and below and presented evidence to this Court! In the Santa Maria Times it was stated "The judge also wrote she followed Tangeman’s ruling that POVE was primarily responsible for the damage to Bookout’s property in her decision to throw out the remaining claims." (Dangerous Condition , Nuisance And Trespass) This Drainage Maintenance change by OCSD November 30, 2001 December 20, 2002 can not be legal in a Storm water drainage Channel? The substantial cause and effects from this pipe is the cause of State Highway 1 Flooding today. Not POVE as Stated above by Judge Tangeman. The County, Caltrans and OCSD installation; knowledge and unreasonable use of this drainage system affects public safety on State Highway 1. This pipe was installed for local Government use since the County of San Luis Obispo and the Regional Water Quality Control Board required the POVE pond raised in 1985. Caltrans maintained this drainage channel from 1983-2002 as Caltrans and County documents attached show. I am asking for the Public help in seeing that this OCSD pipe is removed along with the sedimentation and debris that has been graded, shoveled and Dredged into this County, Caltrans, OCSD Drainage system by Caltrans and OCSD.
The Trial Court erred in ignoring the Most recent Inverse Condemnation case filled July 31, 2008 Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Caltrans ownership and negligent, changing use of this drainage inlet as seen in this video is a substantial cause of the flooding of State Highway 1. Caltrans as seen in this video has changed the date of stabilization with their history of once removing this debris instead of shoveling it into this storm water drainage channel as seen by the Caltrans Supervisor above!
Superior Court Judge Martin J. Tangeman in his August 5, 2008 Trial Court decision regarding Caltrans Maintenance stated: "Mr. Fry testified that any work undertaken by Cal Trans employees in the channel to help clear the channel were most likely undertaken solely as a "good neighbor" practice by a "conscientious employee." The San Luis Obispo Superior Court misheard the testimony as truly stated by Caltrans in the Court Reporters Transcripts: “I would imagine that the loader was working in the area. The employee who was running the loader was probably a conscientious employee and wanted to try to help.” Court Reporters Transcripts showing Caltrans intentionally shoveling debris into this drainage channel... November 26, 2008 photos of Caltrans actions after trial.
Caltrans after Judge Tangeman's August 5, 2008 Decision has continued their practice of shoveling storm water debris into their four foot storm water drainage inlet as seen in this November 26, 2008 security video!
The State of California, Caltrans at trial Stated on page 920-921 of the Court Reportor's transcript, for July 14, 2008 regarding their shoveling dirt and debris inside the Oceano Community’s Storm Water drainage channel as seen above: “I’m not sure what they’re doing in this picture. It appears that they’re throwing dirt up on the bank at the base of the tree.” Question: “Is this anything related to the buildup of sediment at the mouth of the drainage channel?” Answer. “Well it’s more grass. Well, Yeah, sediment and grass.” Question: And where’s this material removed to when you engaged in this particular activity? Answer. “Based on the Mud behind me at the base of the tree, I would say we where throwing it up on the bank.” Question: So you were keeping it in the four feet that you consider to be Caltrans right-of-way? Answer. “YES” Question: And how often have you engaged – You or your staff engaged in the particular activity? Answer. “How often does it rain down there?” Question: Is it fairly often – Answer: “YES” Question: Based on the rainfall. Answer. “YES, just about every time it rains.” Judge Tangeman Exhibits presented to him during trial showing Caltrans endangering public Safety!... Notice in this video April 2, 2008 Caltrans emplyees actions in drainage channel outside of Caltrans 4 foot right of way?
View Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Arreola v. Monterey County (6th Dist. June 25, 2002) 99 Cal.App.4th 722 [122 Cal.Rptr.2d 38]. Caltrans actions as seen in the video above goes against California Streets and Highway code sections 720-734 particular, section 725 (Prejudical error) Arreola v. Monterey shows “An entity with the power to control a project need not actively participate in it to suffer liability. Proof that an entity signed a contract assuming responsibility for the project, shared a common governance with an active participant, or provided an exclusive revenue source for the project, can establish control.”Arreola v. Monterey County (2002) Cal.App.4th[2002 Cal. App. LEXIS 4319]. Superior Court Judge Martin J. Tangeman has stated: "The "Date of Stabilization" approach does not apply in this case. The evidence showed that the last improvements made to the drainage systems were constructed by Pismo Oceano Vegetable Exchange ("POVE") in the late 1970s”
These maintenance actions by Caltrans have changed the Stabilization of this drainage channel. Caltrans has intentionally raised the State Highway in December 2000 changing the Stabilization of this drainage channel. Caltrans has then raised and lowered this State Highway in 2001, 2002, 2003, 2006 again changing the Stabilization. Caltrans was well aware of their changing the drainage stabilization of this drainage system with exhibit # 1757 a March 13, 1985 signed agreement with OCSD. Please view this evidence presented to the San Luis Obispo Superior Court in this PDF file!Caltrans_intentionaly allowing State Highway 1 to flood instead of west side of Oceano Documents.pdf The Residents of Oceano at this time payed in full $5,000.00 Dollars for Caltrans to take full responsibility for this drainage system used by Caltrans.These actions go against California Appeals Arreola v. Monterey County (6th Dist. June 25, 2002) 99 Cal.App.4th 722 [122 Cal.Rptr.2d 38 ----Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. These two Appeal case's show this Trial Courts Prejudicial Errors.
The Trial Court erred having commented on this video below of the Oceano Community Service District use of this storm water drainage channel for other uses then storm water. This Community Service District PVC pipe use in a storm water drainage channel-(Public Improvement goes against the most recent California Appeals Court Case Law Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Notice Caltrans debris at inlet of drainage channel in video! Both Caltrans and OCSD are seen here to be substantial contributors along with the Railroad for these drainage obsticles. OCSD testified July 10, 2008 at trial to making drainage changes pictured below in 2001 and 2002 showing that their was no stabilization to this drainage system. OCSD when asked "Do you have a maintenance plan for the channel or the culvert with respect to debris?" Answered. NO, WE DO NOT. Judge Tangeman stated regarding this testimony. "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance"
Superior Court Judge Teresa Estrada-Mullaney in her February 2, 2009 Judgment Decision "Notice of Judgment" States: "Judge Tangeman determined the flooding problem was "static" for several years prior to Plaintiff's purchase of his property. Plaintiff contends the flooding is continuous and can be abated. Plaintiff argues Defendants negligent maintenance of the drainage system increases the frequency and severity of the flooding. That is inconsistent with Judge Tangeman's determination that the primary culprit was POVE's improvements, rather than negligent maintenance of the drainage system. There was no showing that Union's operation of Well No. 8 contributed to the blockage. There was no showing of the County's responsibility for maintaining the drainage channel. There was no evidence that any accumulated debris in State's right of way contributed to the problems in the operation of the drainage system. County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" View Judge Tangeman Exhibits presented to him during trial showing Caltrans, County and OCSD continuous and repeated conduct endangering public Safety, with no Stabilization in this drainage system pdf...
This Video December 19 2007 shows Caltrans at 3am in the morning after the State Highway had flooded shoveling and then grading storm water debris into the Oceano Community's Storm Water Drainage channel! This changes the stabilization of this intended use of this drainage system!
The Public can help by asking Questions of Governor Arnold Schwarzenegger, Senator.Maldonado@sen.ca.gov and Assemblymember.blakeslee@asm.ca.gov Caltrans and the County of San Luis Obispo could have abated the intentional flooding of California State Highway 1 at any time for a cost of $43,295.00 presented to the Trial Court Exhibit #1790 a September 25, 1987 Letter to the County of San Luis ObispoView
Assemblyman Blakeslee is taking action see his letter April 30, 2009 Assemblyman_Sam_Blakeslee. pdf... View Senator Abel_Maldonado. pdf knowledge. Please view the local News Media Knowledge with Senator.Maldonado and Assembly member Sam Blakeslee Knowledge as presented to them in this PDF file Senator Maldonado is now aware of Caltrans actions from his response May 12, 2009 calling this a very difficult situation.
State Assemblyman Sam Bakeslee and Senator Abel Maldonado--Skoumbas v. City of Orinda 2008 New Knowledge of State Highway 1 flooding June 5, 2009... News Media knowledge of flooding June 5, 2009 and Oceano Community Service District dredging OCSD well #8 water up to State highway 1 June 9, 2009.
Our Local News Media--San Luis Obispo Tribune, McClatchy News, New Times, Five Cities Times Press Recorder, Santa Maria Times are now aware of the County of San Luis Obispo, Caltrans and Oceano Community Service District documents showing that they could have abated a small drainage, ponding problem in the mid 80's before OCSD constructed their Well # 8 PVC pipe in this drainage channel a and Caltrans decided to raise State Highway 1 in December 2000 as Caltrans had stated September 15, 1987 Caltrans could do. News Media Knowledge of Oceano Residents Paying $5,000.00 To Caltrans for public Safety.pdf
Trial Court Trannscripts knowledge presented to the San Luis Obispo Tribune July 21, 2009 Public Safety with Freedom of Speach... for County Residents knowledge.
United States Senator Barbara Boxer and Congresswoman Lois Capps are now both aware of Caltrans and the County of San Luis Obispo Actions as they both have recently acknowledged documents presented to them.
Governor Arnold Schwarzenegger is aware of Caltrans Actions. See his-- _Response to State HWY 1 Flooding in Oceano...
Trial exhibits presented to Judge Tangeman showing no Stabilization from drainage changes in inverse condemnation with the Caltrans Maintenance Supervisor and his employee's shoveling debris into the Oceano Community's Storm Water Drainage Channel! Trial Exhibits seen by Judge Tangeman Exhibits 1516, 1513, 1514, 1468, 1469, 1470 PDF...notice dates on photos and that Caltrans is not removing debris from State Highway 1! Notice flooding of East side of State Highway 1 from Caltrans overlay as seen in Caltrans photos June 13, 2002. Exhibits 1466 and 1467 show Caltrans in 2000 doing proper maintenance to this drainage channel used by Caltrans. Exhibits 1464 and 1465 show Caltrans raising State highway 1 in 2000 before they removed their retaining wall in 2003. Appeal Brief reasons and facts showing Inverse Condemnation Caltrans, County, OCSD Railroad pdf Exhibit # 1488 of Caltrans grading storm water debris into this drainage channel while Caltrans continues to shovel debris into this storm water drainage channel Exhibit #1517.
The Trial Court erred regarding Inverse Condemnation and "date of Stabilization" with the evidence above. The San Luis Obispo Court has ignored our California Constitution (Property Rights Article I Section 19) The Trial Court Stated "Finally,the Court does not find a factual basis to impose liability based upon allegedly increasing elevations of Highway 1 resulting from overlay projects. First, the evidence was mixed at best as to weather the absolute elevation of Highway 1 changed in a substantial way as a result of the "remove and replace" projects." Caltrans had previously addressed their drainage at this location and were aware of their actions as seen in Exhibit # 579 "Overlay From Caltrans in 2001 on HWY 1." At Trial an in exhibits drainage changes by Caltrans are seen in 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008 showing no Stabilization! The County of San Luis Obispo withheld part of their knowledge of these drainage changes from discovery Exhibit # 579 states: "Caltrans raising Highway 1 at 13th Street (summer 2002) Contributing to elevated flooding (inability for water to cross roadway) on northeast side of Highway 1 (at Oceano Nursery)"County withholding evidence from discovery until December 2, 2008 of flooding before Hwy 1 Baughman
This maintenance practice by Caltrans is seen in the videos and photos; November 26, 2008, April 2, 2008, December 19, 2007, January 4, 2007, March 22, 2005. Caltrans Claims this is normal for Caltrans. View Caltrans January 10, 2005 OCSD meeting with Caltrans talking about drainage. See Caltrans Response to the Regional Water Quality Control Board January 12, 2009 Caltrans-D-5 Pete_Riegelhuth January 12, 2009 Statement mailto... Caltrans Pete Riegelhuth Stated to the RWQCB "it was determined that Department roadway maintenance operations at this location are in compliance with requirements set forth in Department Stormwater Quality Guidance Manuals."
Caltrans shoveling debris into the Oceano Community's Storm Water Drainage channel as recently as November 26, 2008. These photos show the Caltrans 4-Foot Right A Way with Caltrans ownership of the Eucylptus trees.
In this video below the RWQCB has allowed the Oceano Community Service District to dredge 4500 gallons of Well water daily through this storm water drainage system from their December 2002 drainage changes.
The San Luis Obispo Superior Court has stated after viewing the evidence. "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance"
View the video below of the Oceano Community Service District Use of this Storm Water Drainage Channel, then remember the quote above by the San Luis Obispo Superior Court "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance"
The Trial Court in their quote "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" Erred in ignoring P. 55 of the July 10, 2008 trial transcript with Oceano Community Service District requesting of the County of San Luis Obispo to change the drainage system used by the County, Caltrans and Railroad Exhibit # 1756 The Oceano Community Service District Letter to The County of San Luis Obispo and Southern Pacific Railroad April 21, 1983 stated in Quotes "This Channel has been protected by use of a culvert that would conduct surface waters under Southern Pacific tracks to what may be a bunker under the loading docks of the Pismo-Oceano Vegetable Exchange (POVE) . The water, then, might flow to a small retention basin maintained by POVE."Caltrans and County using State Hwy 1 for a storm water retention basin Exhibit #1756 OCSD Prescriptive Easment. "Because this is an established drainage channel. The District feels that its full design capacity should be available for use. Reserch, however has not clearly revealed the agency responsible for the maintenance of the channel. Consequently , we have no idea the condition of the channel and wheather, in its present state of maintenance, it can adequately carry the quantity of water that will be discharged. The District is therefore notifying all those agencies that may be involved in the channel's maintenance of its possible impending use and the degree to which it may be used."
The Trial Court Erred as: An entity that has power to control a project is liable even if it does not actively participate in it. August 2002 Supplement to the Law of Inverse Condemnation. An entity with the power to control a project need not actively participate in it to suffer liability. Proof that an entity signed a contract assuming responsibility for the project, shared a common governance with an active participant, or provided an exclusive revenue source for the project, can establish control. Arreola v. Monterey County (2002) __Cal.App.4th__ [2002 Cal. App. LEXIS 4319].
The Trial Court erred 5.2.3 Liability for Improper Maintenance Plan Failure to act can trigger inverse condemnation liability. A levee project failed during a heavy rainstorm, flooding plaintiffs' properties. Defendant counties' refusal to keep the channel clear, in clear violation of Army Corps of Engineers guidelines, caused the breach. Their inaction amounted to a deliberate policy because they had known about the flood hazard for over 20 years. Despite the danger, they allowed the channel to fill, in order to meet Fish and Game regulations. The court held for plaintiffs, explaining that, to support inverse condemnation liability, a plaintiff need only show that an "entity was aware of the risk posed by its public improvement and deliberately chose a course of action--or inaction--in the face of that known risk." Arreola v. Monterey County (2002) __Cal.App.4th__ [2002 Cal. App. LEXIS 4319].
The Trial Court erred 6.5.3 Property Historically Subject to Flooding "Public projects not related to flood control trigger strict liability when they cause water damage to property, even if it is historically subject to flooding. A state highway backed up flood water onto plaintiffs' property. The appellate court concluded that the two sources of the rule of reasonableness--traditional private water law, and Professor Van Alstyne's balancing analysis--both weighed towards strict liability. First, traditional water law does not privilege downstream obstruction of flood water, as in the instant case. Second, Van Alstyne's public policy analysis only permits a reasonableness approach where a project's primary purpose is to protect plaintiffs' property. Here, the State's purpose in building the highway was to benefit the traveling public." Arreola v. Monterey County (2002) __Cal.App.4th__ [2002 Cal. App. LEXIS 4319].
The Court Stated at trial: “I have not yet read Arreola. I understand the argument that’s going on as to strict liability versus standard of reasonableness, in addition to the other arguments raised in Locklin in terms of substantial factor and appointment, Causation. I understand the argument with regard to specific events or nonspecific events. I was just meaning to focus in on Mr. Gregger’s specific arguments that I have not yet read anything on.”
The Trial Court erred with Exhibits 1874 and 1875--County Building and Construction Permits-This is where the County of San luis Obispo required the Oceano Community's Storm Water Retention pond changed March 27, 1985 after the County approved POVE to use the retention pond December 13, 1984 after OCSD had informed the County that POVE could not use the Sanitary Sewer system for wash water from POVE vegetables. The County's letter December 26, 1984 talks about County of San Luis Obispo hazard to health toxic pesticide in a storm water retention. "To be sure there is no hazard to health from possible concentrated amounts of toxic pesticide, we will require a written approval by the County health Department of this on-site retention basin." Please ask questions of Regional Water Quality Control Board?
The Trial Court erred when they stated "The "Date of Stabilization" approach does not apply in this case. The evidence showed that the last improvements made to the drainage systems were constructed by Pismo Oceano Vegetable Exchange ("POVE") in the late 1970s." This Drainage change/construction below was done by OCSD and Caltrans in December 2002. OCSD has stated that they discharge 4500 Gallons of their well water out of this pipe daily. Notice the debris in front of this pipe! OCSD has testified that they do not maintain this drainage channel!
Regional Water Quality Control Board Questions affecting California residents Health and Safety to the Pacific Ocean that need to be answered pdf Caltrans workers plowing and shoveling flood-related debris from Highway 1 into a roadside ditch as the Regional Water Quality Control Board states below.
"John, Pete, As we spoke about earlier today John, here is the blog that Oceano businessman Bill Bookout has shared with Water Board staff and other agencies: http://www.oceanonurseryflooding.blogspot.com/
This blog includes photos and videos of Caltrans maintenance workers plowing and shoveling flood-related debris from Highway 1 into a roadside ditch. Mr. Bookout says the Caltrans maintenance supervisor is David Fry (sp?). Mr. Bookout asserts that this activity is causing a nearby culvert beneath the railroad tracks to become clogged with debris, which exacerbates flooding of his property.
Caltrans' NPDES stormwater permit prohibits the discharge of wastes or wastewater from road sweeping vehicles or from other maintenance or construction activities to any surface waters or to any storm drain leading to surface water bodies. This maintenance activity appears to violate this prohibition. Please direct your maintenance staff to immediately discontinue this activity. Any flood-related debris should be scooped up and properly disposed of in an appropriate location. If we receive any further complaints regarding this activity, we may find Caltrans in violation of its NPDES requirements and pursue formal enforcement action. Thank you for your attention to this matter. --Matt Thompson Regional Water Quality Control Board Central Coast Region 895 Aerovista Place, Suite 101 San Luis Obispo, California 93401 V (805) 549-3159 F (805) 788-3572"
The Regional Water Quality Control Board was able to understand Caltrans maintenance Staff illegal actions as seen by the trial court. Unfortunatly, the trial court has stated. "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" Caltrans D-5 Pete Riegelhtuth NPDES Coordinator January 12, 2009 E-Mail Statement!...
The Trial Court erred as Caltrans' NPDES stormwater permit prohibits the discharge of wastes or wastewater from road sweeping vehicles or from other maintenance or construction activities to any surface waters or to any storm drain leading to surface water bodies. The Trial Court viewed the Videos and Photos of Caltrans actions! See Judge Tangeman Exhibits presented to him during trial showing Caltrans endangering public Safety!...
As in Arreola v. County of Monterey County trying to make a Deal ignoring public Safety of County residents .pdf County of San Luis Obispo knowing of theirs and Caltrans responsibilities for their drianage changes! This is a question for our State Representatives and news media to make public as seen in these documents.
The Trial Court erred as seen in the County's February 6, 2007 letter above. “As to the “fix” the defendants did agree that it does not make sense to resolve the plaintiff’s damage claim unless the problem has bee rectified. Otherwise, subsequent flooding will cause subsequent litigation.” The County's Attorney's previously stated July 18, 2006 "It remains my position that the County has a Right to allow its water to flow downhill and it is the responsibility of the downhill property owners to dispose of that water in an appropriate fashion." See Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. As to government liability! The February 2, 2009 Trial Court decision has taken away this ability to stand up to Constitutional Rights in California!
The Trial Court has erred Ullery v. County of Conta Costa, supra 2002 Cal.3d 562, It was shown at trial that County of San Luis Obispo, Caltrans and OCSD have all designed, Improved, Maintained, altered and repaired this man made drainage channel since installing the Oceano sanitation line in the late 1960's.Caltrans 1953 Aerial Photo Exhibit #1871 Knowledge of Hwy Drainage changes and Baughman Property!...
The Trial Court erred with allowing the County of San Luis Obispo withholding and changing of evidence Defendant_County August 22, 2008_of_SLO_Oppositi... County of San Luis obispo chose not to provide all requested information in discovery until December 2, 2008 several months after trial showing why the County and Caltrans were using State Highway 1 13th and Paso Robles Streets along with Oceano Nursery for storing contaminated storm water.
This is Caltrans Response to the RWQCB that now affects all of California residents as seen in their September 15, 1987 quote above. "Due to past litigation, the Department is no longer responsible or allowed to maintain the channel located off of the Caltrans right of way. If you would like further information about the drainage situation and the maintenance effort at this location, which has a history beyond what can be detailed in an e-mail, please let me know so that I can arrange a meeting with Department staff familiar with the drainage challenges and restrictions at this site. Respectfully, Pete Riegelhuth D-5 NPDES Coordinator" Office 805-549-3375 Cell 805-305-7726 Fax 805-542-4746" john_papathakis@dot.ca.gov Marissa Nishikawa" marissa nishikawa@dot.ca.gov Pete Riegelhuth pete_riegelhuth@dot.ca.gov
In Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. As cited to the Trial Court. “We conclude that in order to prove the type of governmental conduct that will support liability in inverse condemnation it is enough to show that the entity was aware of the risk posed by its public improvement and deliberately chose a course of action – or inaction – in the face of that known risk.”Judge Tangeman Exhibits presented to him during trial showing Caltrans County and OCSD aware of the risk posed by their improvements Safety!...
The Trial Court erred as cited by the Trial Court as in Skoumbas v. City of Orinda, where Arreola v. County of Monterey is mentioned. "Where a public improvement is unreasonably a substantial cause of the plaintiff’s damage, a public agency may be liable for its role in diverting surface water in order to protect urban areas from flooding. (See Bunch v. Coachella Valley Water Dist., supra, 15 Cal.4th 432; Locklin v. City of Lafayette, supra, 7 Cal.4th 327; Belair v. Riverside County Flood Control Dist., supra, 47 Cal.3d 550; Arreola v. County of Monterey, supra, 99 Cal.App.4th 722.) In such cases, “[t]he reasonableness of the public agency’s conduct must be determined on the facts of each individual case, taking into consideration the public benefit and the private damages in each instance.” (Belair, supra, at p. 566.)" The documents withheld from discovery show why Caltrans, County and OCSD have diverted storm water to state Highway 1 instead of to the Baughman property as shown in Caltrans documents!
The Trial Court erred in exhibit #1816 showing Caltrans shoveling storm water debris into the Oceano Community's Storm Water drainage Channel outside of Catrans 4 FT Right of way changing the date of Stabilization with Caltrans Maintenance changes. As stated by the Trial Court "Mr. Fry testified that any work undertaken by Cal Trans employees in the channel to help clear the channel were most likely undertaken solely as a "good neighbor" practice by a "conscientious employee." Exhibit #579 withheld from discovery shows photo Exhibits of Caltrans removing debris until 2002! See PDF of Exhibits.County withholding evidence from discovery until December 2, 2008 of flooding before Hwy 1 Baughman Read the Baughman Questionnaire of County Drainage
Caltrans has stated to the RWQCB regarding the videos and photos seen above and below. "Department personnel maintain the entrance to the drainage channel by shoveling sediment out of the channel and onto the banks. When the rain event is over, Department staff return to remove the shoveled material."Caltrans-D-5 Pete_Riegelhuth January 12, 2009 Statement mailto...
Notice the two Caltrans workers April 2, 2008 above outside of Caltrans Right-Away shoveling storm water debris into the Oceano Community's Storm Water Drainage Channel! The State of California Caltrans District 5 regards this as proper maintenance according to the RWQCB response by Caltrans! Notice the next two security videos December 19, 2007 at 3am in the morning and November 26, 2008. Caltrans is not seen removing debris from their actions as stated by Caltrans-D-5-Pete Riegelhulth!
The Trial Court erred in Caltrans maintenance plan exhibit #100 as Caltrans actions goes against Caltrans Stormwater Manuals and Handbooks Caltrans has stated to the RWQCB. "it was determined that Department roadway maintenance operations at this location are in compliance with requirements set forth in Department Stormwater Quality Guidance Manuals."
Caltrans now after Judge Tangeman's August 5, 2008 trial decision have a legal right in California to shovel debris into this and other drainage systems as seen in the video above November 26, 2008 !Caltrans-D-5 Pete Riegelhuth January 12, 2009 Statement the RWQCB Harvey Packard/Roger Briggs mailto...
The Trial Court has erred as Caltrans, County, OCSD and Railroads continuous and repeated actions have not stabilized as seen in the video above November 26, 2008 after the video of their same actions April 4, 2008. Caltrans is seen again shoveling contaminated storm water debris outside of their four foot right of way into the Railroads storm water drainage channel. Lee v. Los Angelas County Metropolitan Transportation Authority (2003) as cited by the Trial Court February 2, 2009 (Notice of Entry Of Judgement)
The County of San Luis Obispo Attorney's withheld evidence until December 2, 2008 after trial from POVE, Caltrans, OCSD, Union Pacific Railroad and us showing the County of San Luis Obispo drainage invlovement through the Baughman property. This withholding of evidence would have shown Judge Tangeman why Caltrans choose to raise State Highway 1 in December 2000 and why Caltrans and the County have been using State Highway 1 as a retention basin.County withholding evidence from discovery of flooding before Hwy 1 Baughman
The Trial Court Erred in ignoring P. 55 of the July 10, 2008 trial transcript with OCSD requesting of the County of San Luis Obispo to change the drainage system used by the County, Caltrans and Railroad Exhibit # 1756 The Oceano Community Service District Letter to The County of San Luis Obispo and Southern Pacific Railroad April 21, 1983 stated in Quotes "This Channel has been protected by use of a culvert that would conduct surface waters under Southern Pacific tracks to what may be a bunker under the loading docks of the Pismo-Oceano Vegetable Exchange (POVE) . The water, then, might flow to a small retention basin maintained by POVE."Caltrans and County using State Hwy 1 for a storm water retention basin Exhibit #1756 OCSD Prescriptive Easment.
"Because this is an established drainage channel. The District feels that its full design capacity should be available for use. Reserch, however has not clearly revealed the agency responsible for the maintenance of the channel. Consequently , we have no idea the condition of the channel and wheather, in its present state of maintenance, it can adequately carry the quantity of water that will be discharged. The District is therefore notifying all those agencies that may be involved in the channel's maintenance of its possible impending use and the degree to which it may be used."
The Trial Court erred with the Substantial evidence presented at trial showing Railroad, Caltrans, County and OCSD making substantial design and construction to the drainage system beginning in 1983. Plaintiff produced substantial evidence that defendants had all acted unreasonably in their design, construction and maintenance of this drainage system used by defendants unlike Belair v. Riverside County Flood Control District ( 1988) 47 Cal.3d 550,559. In affirming of this cited judgment (4) and (6) are different as evidence produced and whiteness testimony of residency of land where drainage channel is today showed no history of flooding. (6) Caltrans, County and OCSD drainage changes since December 2000-2008 increased the risk of damage and a burden on Plaintiffs property. Law of Inverse Condemnation -- Pollak, Vida, & Fisher The Trial Court erred in citing Belair v. Riverside County Flood Control District ( 1988) 47 Cal.3d 550,559 as a Substantial Cause-and-effect is found in evidence produced of drainage changes by OCSD Exhibits #1756 1983 OCSD had been warned April 29, 1983 that their drainage changes are not the intended use of this drainage system!
The Trial Court erred as with the OCSD Daner Law Firm July 28, 2008 presenting Exhibit #1729 BOOKOUT Exhibit #1729 April 21, 1983 letter.... Exhibit # 1729 is the same as Exhibit #1756. This Exhibit takes all liability away from POVE with OCSD taking the community's storm water drainage channel for other use's then storm water! Exhibit # 1768 OCSD Log Entries show that OCSD could have abated the flooding of State Highway 1
Superior Court Judge Teresa Estrada-Mullaney in her February 2, 2009 Judgment Decision "Notice of Judgment" States: "Judge Tangeman determined the flooding problem was "static" for several years prior to Plaintiff's purchase of his property. Plaintiff contends the flooding is continuous and can be abated. Plaintiff argues Defendants negligent maintenance of the drainage system increases the frequency and severity of the flooding. That is inconsistent with Judge Tangeman's determination that the primary culprit was POVE's improvements, rather than negligent maintenance of the drainage system. There was no showing that Union's operation of Well No. 8 contributed to the blockage. There was no showing of the County's responsibility for maintaining the drainage channel. There was no evidence that any accumulated debris in State's right of way contributed to the problems in the operation of the drainage system. County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" (In ruling on a motion for judgment, a trial court must decide questions of credibility, must weigh the evidence and must make findings of fact. Liengenfelter v County of Fresno (2007) 154 Cal.App.4th 198.)
The Trial Court erred in blaming POVE for construction in the late 1970's as Judge Tangeman recieved Exhibit #1756 showing OCSD construction in the Drainage channel. Judge Tangeman stated regarding the letter to the County of San Luis Obispo quoted above. "So there's no objection. Seventeen Fifty Six will be recieved. Is this one page or three pages? Mr. Belsher: Three pages, your Honor. The Court: All Right. It's Recieved.Caltrans and County using State Hwy 1 for a storm water retention basin. Judge Tangeman then after Trial took into evidence from the Danor Law Firm/OCSD exhibit #1729 showing OCSD Construction in the Drainage Channel!
Judge Martin J. Tangeman Stated in his August 5, 2008 Decision regarding this video and photo evidence above P11. "In the case of OCSD, the evidence largely consisted of the construction of the drainage outfall from Well No. 8 In the vicinity of the culvert. While there was evidence of substantial amounts of water being discharged from well # 8, there was an absence of evidence that such discharges occurred contemporaneously with heavy rains and flooding problems." (Leaf, supra, 104 Cal.App.3d at pp. 408-409.)
This video above was taken showing State Highway 1 Flooding in a non-rain event January 13, 2007 caused by OCSD Well #8 construction in the Railroads drainage channel! Remember the Courts Statement "The Date of stabilization" approach does not apply in this case. The evidence showed that the last improvements made to the drainage systems were constructed by Pismo Oceano Vegetable Exchange ("POVE") in the late 1970s."
The Trial Court erred with their Acknowledgment of OCSD construction in the Storm water drainage channel and the Substantial amounts of water being discharged daily into this storm water drainage system from this OCSD construction . This shows no date of Stabilization with the OCSD drainage changes since 2001 as viewed in OCSD daily logs presented as evidence to Judge Tangeman Exhibit s #1768.
The trial Court erred on p.82 of the July 10, 2008 trial when exhibit # 1758 was entered into evidence OCSD September 11, 1985 meeting minutes showing OCSD again changing the drainage channel. They state: "To take the discharge line which runs underneath Highway 1 and use it to discharge water near the Railroad Station. GM Hill stated that this would require obtaining easements from the Depot Association and Southern Pacific."
The Trial Court then Erred in Exhibit # 1332 P. 84 of a Caltrans photo dated 1-88 G.M.R. showing the drainage channel in 1988 before OCSD made fruther drainage changes that would block and dredge debris into the Railroads storm water drainage system. The Trial Court admitted into evidence Exhibits # 1331 and 1332 p. 86 as stated by the Court. "Thirteen Thirty-One And 1332 Will Be Recieved. Overruled."
The Trial Court erred when Judge Martin J. Tangeman States P.11: "Plaintiff also alleged that OCSD should be liable because its outfall pipe acted as a dam to capture debris in times of flooding, and/or that at times of discharge from its outfall pipe, debris may have been pushed into the culvert." "In each of these cases, the Court finds that the evidence is too speculative to support liability for inverse condemnation. No studies were undertaken or evidence provided showing the effect, if any, of either of these factors during times of flooding." (Leaf, supra, 104 Cal.App.3d at pp. 408-409.)
The Trial Court erred in ignoring expert testomony "OCSD well pipe adding silt and debris during well operation" as OCSD has testified to discharging 4500 gallons of well water daily into this storm water drainage system!Judge Tangeman Exhibits presented to him during trial showing Caltrans County and OCSD aware of the risk posed by their improvements Safety!...
The Trial Court erred as the public entity’s were unable disprove the identified six substantial factors which have caused this flooding condition to exist. These factors are as presented to the trial court: (1) Blocking the natural drainage way with a pipe too small for the conditions, (2) OCSD Well #8 Discharge Pipe adding silt and debris during normal well operation, (3) Pipe capacity compromised by poorly designed extension, (4) Upstream watershed conditions worsened, (5) Decrease in storage volume at inlet, and (6) Lack of maintenance. These six factors were present during all twelve flooding events and form the basis for expert opinion. If plaintiff identifies the substantial factors which cause PLAINTIFF’S SUPPLEMENTAL TRIAL BRIEF RE: INVERSE CONDEMNATION the injury, the burden shifts to the public entity to produce evidence that would show that other forces alone produced the injury. California State Automobile Assn. v City of Palo Alto (2006) 138 Cal.App.4th 474, 483. The defendants or the Trial Court in this case have not! View the studies presented to the Trial Court inwhich the Trial Court could not dispute from any evidence presented by the public enitities. Additional_Calculations.pdf see liability Supplemental_Expert Calculations.pdf see Recent Developments in Inverse Condemnation Law The debris as seen in the photo above being dredged into the Railroads storm water drainage inlet pipe is coming from Caltrans trees in their four foot Right of way.
The Trial Court erred p. 12 in their August 5, 2008 decision regarding Skoumas v. City of Orinda 2008 DJDAR 12042, quoting from Belair v. Riverside County Flood Control District (1988) 47 Cal.3d 550,559 "Plaintiff has failed to prove that OCSD's conduct has a "substantial cause-and effect relationship" to Plaintiff's property damage, especially given the likelhood that "other forces alone produced the injury." The Trial Courts should have paid attention to Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Diversion of surface waters into a natural watercourse creates liability only if it causes an unreasonable risk of harm under Locklin factors and is a substantial cause of damage. Flood control system that “fails in heavy rain and causes damage to property that has historically been subject to flooding” governed by rule of reasonableness. City could be liable even if its storm drain pipe discharged into a private pipe and the damage occurred “downstream.” ”We conclude the critical inquiry is not whether the entire system was a public improvement, but rather whether the City acted reasonably in its maintenance and control over those portions of the drainage system it does own.” “Substantial cause-and-effect relationship” is enough for liability even for downstream flooding.
The Trial Court erred in ignoring Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. As cited to the Trial Court. “We conclude that in order to prove the type of governmental conduct that will support liability in inverse condemnation it is enough to show that the entity was aware of the risk posed by its public improvement and deliberately chose a course of action – or inaction – in the face of that known risk.” “Knowing that failure to properly maintain the Project channel posed a significant risk of flooding, Counties nevertheless permitted the channel to deteriorate over a long period of years by failing to take effective action to overcome the fiscal, regulatory, and environmental impediments to keeping the Project channel clear. This is sufficient evidence to support the trial court’s finding of a deliberate and unreasonable plan of maintenance.” State diversion or obstruction of surface water onto land “not historically subject to flooding” is not protected by reasonableness rule, but results in strict liability.
The Trial Court erred as exhibit #1757 in the index July 10, 2008 stated a March 13, 08 Agreement. "There exists an unsatisfactory drainage condition on State Route 1 at Mile Post 12.4" District contemplates the construction of a new fire station at this time, and has expressed a desire to participate in State's contemplated drainage improvement, to provide for additional drainage that will result from the construction of the new fire station." This exhibit P.109 is a March 13th, 1985, Agreement between the State and O.C.S.D. to correct a unsatisfactory drainage condition. The State of California took Oceano Residents money of $5,000.00 and full responsibility for this drainage at this time!---Arreola v. Monterey County (2002) Cal.App.4th-[2002 Cal. App. LEXIS 4319]. (An entity that has power to control a project is liable even if it does not actively participate in it. An entity with the power to control a project need not actively participate in it to suffer liability. Proof that an entity signed a contract assuming responsibility for the project, shared a common governance with an active participant, or provided an exclusive revenue source for the project, can establish control.) Arreola v. Monterey County (2002) Cal.App.4th-[2002 Cal. App. LEXIS 4319].
The Trial Court erred as exhibit #1790 P.58 July 10, 2008 showed Caltrans, County, OCSD and Southern Pacific responsibility as: "An entity that has power to control a project is liable even if it does not actively participate in it. An entity with the power to control a project need not actively participate in it to suffer liability. Proof that an entity signed a contract assuming responsibility for the project, shared a common governance with an active participant, or provided an exclusive revenue source for the project, can establish control." Arreola v. Monterey County (2002) Cal.App.4th-[2002 Cal. App. LEXIS 4319].
The Trial Court erred P. 13 as then stated: "Plaintiff has also failed to show the required connection between County's conduct and plaintiff's damages." Neither County, Caltrans, Railroad or OCSD have been unable to dispute the six substantial factors which have caused the flooding condition to exist!
The Trial Court erred with the sworn testimony of the Oceano Community Service District July 10, 2008 with the exhibits 1341-1343 of OCSD flooding State Highway 1 in their testimony Question P. 86-87 "The Photograph in 1341, is that a fairly -- is that an example of the discharging operation? Answer. YES Question Now, The pipe discharges at the culvert. There is a drainage channel I'm sure you're aware of that runs back to Highway 1? Anwswer. YES.
Judge Martin J. Tangeman P.6 in his August 5, 2008 decision erred with his theory of Date of Stabilization as seen above in his Statements. He admits OCSD construction in the drainage channel since the late 1970s. This goes against his written statement: "The "Date of Stabilization" approach does not apply in this case. The evidence showed that the last improvements made to the drainage system were constructed by Pismo Oceano Vegetable Exchange ("POVE") in the late 1970s. Fruther, the evidence demonstrated that the flooding problem was relatively consistent and static for several years prior to the date that Plaintiff purchased his property."
The Trial Court has unfairly blamed POVE saying that there has been no changes (Improvements) to this drainage system since the late 1970s???? County approved building permits pertaining to the retention pond used by Caltrans, County, Railroad and OCSD were presented and accepted by Judge Tangeman Exhibit # 1875! The County of San luis Obispo States: "12/13/84 Jak Floor Drain system drainage to sump + then to retention pond approved by Fred Norton, must have approval of this system by Health Dept."
The Trial Court erred P. 134 POVE acknowledged the County and the Regional Water Quality Control Board requiring drainage changes to the retention pond used by Caltrans, OCSD, Railroad and County as drainage change permits showed in 1984 presented to the trial court! The Trial Court erred P. 129 July 10, 2008 in Exhibit # 1776 May 24, 1985 involving County, Caltrans, POVE, RWQCB and the use of State Highway drainage mixed with produce drainage through Railroad property with Caltrans existing easments of use of this drainage system and their responsibility for drainage.
These are quotes from Exhibits presented to the Trial Court exhibit # 1785 May 14, 1987 This is after the County had required drainage improvement changes in 1985 on Railroad property for the retention pond used by the County, Caltrans and OCSD after issueing building permits to POVE! “We decided that there were two basic solutions to the problem. They are:” “# 2 Construct a detention or retention basin above the Railroad on their property and leave the existing culvert as is.” “Tim Smith and Glenn Priddy we discussed the flooding problems that would be created by passing the water under the railroad through a new culvert. That would require the County buy an easement south and west of the railroad to maintain a channel to protect the residences in the low lands.”Cal_Trans_Documents.pdf
OCSD at trial July 10, 2008 acknowledged that this type of discharge runs back to State Highway 1! View Photo Exhibit #1342 presented to Judge Tangeman of OCSD Drainage Improvements, changes and"obstacles" dredging 4500 Gallons of their Well #8 Water and debris into the Railroads Storm Water Drainage channel daily. This is a substantial cause of how debris gets packed into the Railroads storm water drainage system. The County Health Department has approved this according to OCSD P. 85 July 10, 2008 testimony. See Exhibit Evidence_presented_to_Judge Tangeman showing the effects of OCSD pipe during storms# 1278, 1337, 1338.1342..
Judge Tangeman erred in his August 5, 2008 decision regarding Cal Trans as he States: "There Was Insufficent Evidence To Hold The State of California Liable For Inverse Condemnation" The Court then States. "Nor was there substantial evidence that debris accumulated within the State's right-of-way (as opposed to the debris accumulated on private property outside the boundaries of the right-of -way) contributed in any meaningful way to the problems in the operation of the drainage facilities on Railroad and POVE properties." SeeTrial Exhibits seen by Judge Tangeman...
Employee Negligence & Vicarious Liability (Cal. Govt. Code 815.2)According to Government Code Section 815.2, a public entity may be held vicariously liable for the act or omission of an employee acting within the scope of employment, notwithstanding provisions of immunity.
Superior Court Judge Teresa Estrada-Mullaney in her February 2, 2009 Judgment Decision "Notice of Judgment" States: "Judge Tangeman determined the flooding problem was "static" for several years prior to Plaintiff's purchase of his property. Plaintiff contends the flooding is continuous and can be abated. Plaintiff argues Defendants negligent maintenance of the drainage system increases the frequency and severity of the flooding. That is inconsistent with Judge Tangeman's determination that the primary culprit was POVE's improvements, rather than negligent maintenance of the drainage system. There was no showing that Union's operation of Well No. 8 contributed to the blockage. There was no showing of the County's responsibility for maintaining the drainage channel. There was no evidence that any accumulated debris in State's right of way contributed to the problems in the operation of the drainage system. County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" "The situation has been stable and static such that all of plaintiff's remaining causes of action accrued prior to mid 2002 and therefore are barred by the applicable statute of limitations. (CCP &338)" Supplemental Expert Calculations presented to Judge Tangeman.pdf
The Trial Court erred in their belief that Union's operation of Well No. 8. This well is owned by and operated daily by the Oceano Community Service District! The County's Responsibility runs from above this drainage channel to the Pacific Ocean!
The Trial Court States: "Similar to his rulings as to the County and State, Judge Tangeman concluded Plaintiff's evidence was too speculative to support liability against OCSD for its drainage outfall from Well No. 8 or its improvement of real property. As to Union, Judge Tangeman determined the evidence failed to support a basis for liability for improvements made by POVE and found that the improvements were constructed without invoking powers of eminent domain. Judge Tangeman did , however, allude to Union's negligent omission to enlarge the culvert. Union is not entitled to judgment on the pleadings based upon causation issue preclusion. Nevertheless, the statute of limitations applies equally to all Defendents."
March 17, 2009 we have filled an appeal to the February 2, 2009 Judgement decision Supplemental Appeal Brief showing inverse Condemnation actions by Caltrans, County, OCSD and Railroad v3.pdf
See evidence presented to Judge tangeman...See drainage changes by Caltrans in December 2000 to present Exhibit Evidence_presented_to_Judge Tangeman showing the effects of OCSD Well # 8 pipe blocking accumulated debris during storms that could be abated with maintenance # 1278, 1337, 1338.1342.. This evidence presented to judge Tangeman shows no date of Stabilization with OCSD construction in the drainage channel, mixed with caltrans drainage changes since December 2000!
The Trial Court erred as to OCSD Improvements/Construction in the Storm Water Drainage Channel as this was invoking powers of eminent domain beginning in 1983 with OCSD maintaining this system! This is seen in photo exhibit # 579 UPRR withheld from discovery!
The Trial Court erred regarding exhibit # 1730 OCSD Prescriptive Easements over private property P. 10 in their decision statement "There was no evidence offered that the Railroad objected to any uses that were made of its property."The Railroad had warned OCSD on April 29, 1983 of the intended use of this channel. “ It would appear that the channel mentioned in your letter was probably created to handle storm water runoff, and not the purpose to which you now intend to utilize it.” See Photo Exhibit # 579 UPRR
Judge Teresa Estrada Mullaney-in her January 5, 2009 decision cited-Skoumbas v. City of Orinda "Substantial Cause-and effect relationship" and is enough for government liability. Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Diversion of surface waters into a natural watercourse creates liability only if it causes an unreasonable risk of harm under Locklin factors and is a substantial cause of damage. Flood control system that “fails in heavy rain and causes damage to property that has historically been subject to flooding” governed by rule of reasonableness. City could be liable even if its storm drain pipe discharged into a private pipe and the damage occurred “downstream.” ”We conclude the critical inquiry is not whether the entire system was a public improvement, but rather whether the City acted reasonably in its maintenance and control over those portions of the drainage system it does own.” “Substantial cause-and-effect relationship” is enough for liability even for downstream flooding.Caltrans, County Tort Liability Concerns Wests side of Oceano Baughman Property... Judge Tangemen cited in his decision Exhibits 1278, 1337, and 1338 showing OCSD dredging and damming debris with their Prescriptive Easement of this drainage channel from their construction and improvements in this drainage channel! Evidence_Exhibits_presented_to_Judge Tangeman of OCSD pipe in Railroad inlet daming and blocking debris!...
The County of San Luis Obispo withheld substantial evidence from discovery regarding inverse condemnation from Caltrans drainage maintenance changes showing no date of stabilization from Caltrans historic drainage channel maintenance in 2002 and prior. Caltrans after this documented maintenance in 2002 began shoveling and grading debis into this drainage system!
Caltrans stated July 28, 2008. "and no evidence was offered (by any qualified and credible testomony) to show that this pavement increased the height of the road bed." The Trial Court erred in their desision stating "First the evidence was mixed at best as to weather the absolute elevation of Highway 1 changed in a substantial way as a result of the "remove and replace" projects." Here the Trial Court admits the substantial evidence, that there has been no date of Stabilization thus making the State of California (Caltrans) liable for inverse condemnation! County withholding evidence from discovery of flooding before Hwy 1 Baughman The County of San Luis Obispo testimony July 10, 2008 P.40 shows their knowledge of channel maintenance as seen in evidence withheld from discovery of Caltrans maintaining this channel! UPRR photo Exhibit #579 Shows Caltrans accrual date raising Highway 1 changing the date of stabilization as they continued to make drainage changes to 2006. Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848.
It is unfortunate that I have had to be a whistle blower with local governments actions! The fact that my California Constitutional rights under Article I, Section 19 have been violated and public safety has been put in danger is not acceptable!
The County of San Luis Obispo making drainage changes downstream and then collecting $30,000.00 per year rental income from where this storm water was once stored is unacceptable! See County of San luis Obispo board of Supervisors knowledge in the 2004 drainage study.
By bringing this to the public's attention I have lost my business (Oceano Nursery) and I am now in the process of having to close and sale off my inventory at my other business Plumerias Garden and gifts to fund my appeal filed March 17, 2009. I am faced with $222,316.88 in government legal fees for a small drainage problem in the early eighties that only would have cost the County, Caltrans, OCSD, Railroad and POVE $43,295.00 to fix at the time!
This story with the video and photo evidence above and below, needs to be heard in the National News Media on 60 Minutes, 20/20, ABC News Night line, CBS, Fox News etc.
I would like to thank Dave Congalton and his guests for the first radio interview seen below Dave Congalton on News Talk 920 KVEC: The Public Continues to Turn ...04/02/2009 interview at 4pm Bill Bookout from the Oceano Nursery has fought Cal Trans and the Oceano CSD for years over flooding problems on his property. We'll hear his story. 04/02/2009
The News Media will need to understand the drainage changes west of State Highway 1 made by the State and the County of San Luis Obispo. View Caltrans_1953_Aerial_Photo_Knowledge of Hwy Drainage and Baughman Property!... of Caltrans and County drainage changes to this storm water drainage channel and the Pacific Ocean! The States Highway drainage when this problem is finally corrected will have to have the Storm water stored on County property west of State Highway 1 in order not to pollute the Pacific Ocean or flood properties West of State Highway 1 as has been Caltrans and the County of San Luis Obispo Concerns! This may have an impact on the Oceano Airport becoming wetlands and possibly having to change the State Parks Dunes entrenance south of its current location for environmental concerns! View
The video above from an OCSD Meeting January 10, 2005 Exhibit # 1804 explains the Oceano Community's drainage system and why State Highway 1 is flooding when it rains! Oceano residents in this video talk about the following photos of the OCSD white pipe being illegal with OCSD Stating: "that issue is being addressed"! OCSD States that they have no authority to put a pipe on someone elses property? OCSD talks about Paso Robles and thirteenth Streets flooding at the same time State Highway 1 Floods. OCSD talks about their observing the clearing out eucalyptus debris from the ditch on Railroad property and that it stops the flooding. OCSD talks about the benefits of no flooding by pressure washing out the culvert with the sand and debris in it along with OCSD Staff recommending putting a grate in front of the Railroad pipe!
The County Of San Luis Obispo January 10, 2005 talks about their recent requirements for curb gutter and sidewalk and problems this is causing. They mention the cost of Storing their water coming off of County streets on the west side of the State Highway 1 from a drainage study and that being about a Million Dollars. They mention the cost of the drainage study they had recently done. The County talks about their Liability. The County talks about regulations they had made just two or three years prior and then takes some blame, they then blame Cal Trans, the Railroad and the vegetable Exchange?
The County states in their Drainage Study "2.1.4.6" "Caltrans The California Department of Transportation (Caltrans) operates drainage facilities that are associated with the State Highway System. Highway 1 experiences flooding near 13th and 19th Street. Caltrans currently clears the drainage channel between 13th Street and the railroad."
Cal Trans States January 10, 2005 that by law they will not take the lead for a flood control problem. They state if they fix this drainage problem they would be responsible for this system from beginning to end, meaning to the Ocean? Cal Trans, talks about their elevation changes in December 2000 to the State Highway and correcting these changes in 2003 along with changes that need to be made to a Sidewalk they had recently installed. They State that they have communicated with the Railroad and that the Railroad would be willing to participate in a drainage solution. (This Leaves the only party that does not want to fix the unsafe and unsanitary Storm Water Drainage problem involving County Airport property west of highway 1 to be San Luis Obispo County? See Exhibit Quotes Below 1785,1795, 1786, 1788, 1789,1796 Please view this Oceano Community's Service District meeting video January 10, 2005. The First speaker is the County of San Luis Obispo pay close attention to the County's statements followed by Cal Trans. OCSD_FLOOD_MEETING_JANUARY_10__2...
The San Luis Obispo Superior Court erred when they mislabeled this substantial evidence of causation of flooding with these-33 photo Trial Exhibits seen by Judge Tangeman... Showing no Date Of Stabilization of the Oceano Storm Water drainage channel since Caltrans drainage changes in December 2000 and 2002. These photo documents stated "Photos Relating To O.C.S.D. Involvement" when they should of said Caltrans Negligence in raising a State Highway as seen in exhibit # 1470 and then #1516 of Caltrans supervision Shoveling and Grading Storm Water Debris into a Community's Storm Water Drainage Channel outside of their Right of Away! Exhibits 1463- 1516 Show Caltrans raising State Highway 1 beginning in 2000 while maintaining the Storm Water drainage channel removing debris at this time and then Grading and shoveling Debris into this channel since! This action by Caltrans since December 2000 violates Article I, Section 19 Of the California Constitution as this Evidence shows intentional negligence and is a Substantial Cause of the flooding of my property and State Highway 1!
The Trial Court erred regarding Substantial Factors/Causation Judge Tangeman States Regarding Caltrans: “Nor was there Substantial evidence that debris accumulated within the States right- of-way (as opposed to the debris accumulated on private property outside the boundaries of the right-of-way) contributed in any meaningful way to the problems in the operation of the drainage facilities on Railroad and POVE properties.” 1) Caltrans Raised State Highway 1 in December 2000 Exhibit # 1462, 1463, 1464, 1465, Caltrans photos Exhibit # 1468, 1469, 1470 of flooding east side of Highway 2) Caltrans changing drainage maintenance of drainage channel as exhibits in 2000 showed Caltrans maintenance of this channel. Exhibit # 1466, 1467, 3) Caltrans Railroad drainage inlet change December 2002 with Concrete bags installed at Railroad 24 inch pipe in channel outside of Caltrans Right-Away. Exhibit #1490, 1491 4) Caltrans Raising State highway 1 13th and Paso Robles Streets in 2003 Exhibit # 1471, 1472, 1473,1474, 5) Caltrans 2003 Drainage Change in removing a retaining wall on their property without removing debris behind wall, then allowing debris to wash into State Highway and then be graded into drainage channel as Exhibits presented to the trial court showed Exhibit #1463, 1464, 1475, 1476, 1477,1478,1479,1480, 1481,1482,1483, 1484,1485,1486,1487, 1488 6) Caltrans retaining wall Debris left in hwy and graded to side of State Highway not removed by Caltrans allowed to wash into drainage channel Exhibit # 1475, 1476, 1478, 12/29/04 Exhibit # 1479, 1477 12/31/04 Exhibit # 1480,1481, 1/1/05 Exhibit # 1482, 1/3/05 Exhibit # 1483 1/7/09 Exhibit # 1484, 1485, 1486, 1487, 1488 3/22/2005 1530, 1531, 1535 1/26/2006 , 1533,1536 1/27/08 1527 1/26/08 1520 2/8/2007 7) Caltrans Raising State highway 1 in 2006 Exhibit #1498, 1500, 1501, 15021503, 1504,1505, 1506,1507, 8) Caltrans shoveling debris into drainage channel 1/4/2007 Exhibit # 1516, 1517, 1518, 1519 of Caltrans supervisor shoveling debris into drainage channel. Exhibit 1513, 1514, 1515 of Caltrans employees shoveling debris into drainage channel 9) Caltrans Shoveling Debris into drainage channel Exhibit # 1541 10) Caltrans four foot Right away Exhibit # 1520 1527, 1530, 1537,1538,1539, 1540, 1543, 1542, 1525 Judge Tangeman States Regarding Oceano Community Service District: 11) OCSD Drainage Change 2001, 2002 Exhibit # 1768 Phil Davis Log Entries to Railroad drainage channel and inlet. 12) OCSD flushing debris from their property into drainage channel Exhibit # 1450 1/19/08 1541 6/7/08 13) OCSD POVE Pond Maintenance Exhibit # 1433, 1434, 1447, 1440, 1442, 1443, 1436,1437, 1439, 1444 1/3/2005 14) OCSD maintenance of their PVC pipe in Drainage Channel Exhibit # 1425, 1426, 1427 1/7/08 15) The Trial Court Erred with the July 10, 2008 Court Reporters Transcript regarding OCSD pipe being installed in 1985 Exhibit # 1758 As Caltrans Photos Exhibits # ?????? show P82 16) The Trial Court Erred P. 83-88 when they herd testimony of discharge into the storm water drainage system by OCSD P. 84 no permission. P85 Permission from the County Health Department exhibits 1331 and 1332 admitted. 1336-1337-1338 admitted and seen by the court 1336-1343 OCSD is seen to maintain this channel as the Trial Court saw 17) The Trial Court Erred P.96-1112 OCSD Maintaining pipe/drainage channel removing leaves and branches with the rest of the daily logs showing maintenance that did not exist prior to 2001! 18) The Trial Court from the OCSD Testimony P11 and 12 Of their August 5, 2008 decision ignored the real culprits using the drainage channel by altering the purpose of this channel! 19) The Trial Court erred with the minutes of Exhibit # 1764 p.110 July 10, 2008 20) The Trial Court Erred P 112 July 10, 2008 as they later admitted one Oceano Drainage Questionnaire showing the relevance of this exhibits from testimony by Caltrans! 21) The Trial Court Erred in their July 10, 2008 Statement P. 7 “In addition, Mr. Davis testified that plaintiff had a history of complaining about flooding prior to December 20, 2002, when he met the plaintiff on site and cut the Oceano Community Services District (“OCSD)” drainage pipe in the vicinity of the culvert.” Documents withheld from discovery showed flooding concerns on Fountain Ave and Airpark involving Mr. Davis. P. 102 “might flood his property” P.103 July 10, 2008 Answer “It is in – I think Mr. Bookout thought that possibly the pipe going inside the culvert was restricting the flow.” 22) The Trial Court Erred P7 in their August 5, 2008 in regards to Mr. Suttons Testimony as he was not employed by POVE in 2000. Mr. Sutton did not arrive in Oceano in 1996! 23) The Trial Court Erred P. 8 regarding testimony of Mr. Brebes who retired from Caltrans in 2002. Exhibits1766 and 1767 that the court sustain show brebes involvement in flooding on Fountain Ave and Airpark. Documents withheld from discovery by the County of San Luis Obispo show Caltrans Raising the Highway with Brebes involved in this drainage change. Judge Tangeman States Regarding the County of San Luis Obispo “there was no showing of the County’s responsibility for designing or maintaining the drainage channel or drainage facilities immediately downstream from Plaintiff’s property.” He ignores drainage changes P20 July 10, Statements by County!
The Trial Court erred in their statement regarding Inverse Condemnation. “In addition, however, there is substantial evidence which contradicts Plaintiff’s late proffered explanation. For example, substantial evidence was introduced by Plaintiff that this flooding problem had existed at this location for decades, going back at least to the 1980s.” This information came from the County of San Luis Obispo Attorney Clay Hall as provided to him by the County of San Luis Obispo, as the County chose to withhold additional information from discovery provided December 2, 2008. View County trying to make a Deal ignoring public Safety of County residents .pdf
The Trial Court erred as stated by Clay Hall February 6, 2007 “As to the “fix” the defendants did agree that it does not make sense to resolve the plaintiff’s damage claim unless the problem has bee rectified. Otherwise, subsequent flooding will cause subsequent litigation.” The February 2, 2009 Trial Court decision has taken away this ability to stand up to Constitutional Rights in California! 24) County Of San Luis Obispo Testimony P. 34 The Court: “The “Problem Area” Being Highway 1 And 13th And Paso Robles.” The Witness: The Problem – As Far as fixing the drainage on the lot, the – The problem was the impact of the fix on the downstream property owners, not that – not that something down there needed to be fixed in order to solve the problem upstream.” The Trial Court States P. 32 Yes. “And so why is flooding on Fountain Avenue relevant to this particular, given the witness’s answer that he’s not familiar with that issue?” Ms. Thurmond P. 33 “The Drainage problem, we haven’t even defined the drainage problem. Were getting hung up here. The problem is flooding of Bill Bookout’s property. The problem is not the overall Drainage problem in Oceano. We could go on for years on that. The Trial Court: “No, I understand. But I thought we had limited the questions to the Bookout Flooding problem. 25) Exhibit # 1769 Oceano Drainage and Flood Control Study. This Study explains the County’s Responsibility down stream. 26) Exhibit # 1769 shows County Changing of evidence Baughman property 2002 Community Drainage & Flood Control Study Questionnaire Withheld from discovery by County of San Luis Obispo. This Questionnaire was provided after trial and admitted into evidence. 27) Exhibit # 1875 Construction Permit 28) Exhibit # 1762 County Drainage Channel Behind Fountain Avenue next to Baughman Property Questionnaire withheld by County from Discovery! 29) Exhibits #1766 and 1767 1770 Judge Tangeman “Sustain”--- County’s responsibility for designing or maintaining the drainage west of State Hwy 1! 30) Exhibit # 1790 9/25/87 County’s responsibility for designing or maintaining the drainage West of State Highway 1! 31) Exhibit 1783 County Knowledge per P. 15 County Testomony letter dated 7/86? 32) Exhibit 1731 County Knowledge per P. 17 33) The Trial Court Erred stating Plaintiff has failed to prove defendants have acquired a prescriptive easement Exhibit # 1756 July 10, 2008 Court reporters transcript P.55 By Mr. Belsher “Seventeen fifty six, the first letter is a letter to the San Luis Obispo County Flood Control District and it relates to discharges at the problem area.” The Court “ So now there’s no objection. Seventeen Fifty Six will be received. Is this one page of three Pages? Mr. Belsher “Three pages your Honor.” The Court All Right. It’s Received.” To the County, POVE and Railroad notice of use of drainage channel 34) Exhibit 1787-1790 Caltrans Drainage responsibility for repair to drainage system proposal replacement of the drainage culvert. 35) Exhibit 1805 Curb Gutter and sidewalk drainage changes U.S.H.A. 36) Exhibit # 1874 Admitted P. 65 County Building permits 1875 construction permits 37) P66 July 10, 2008 County attorney admits County drainage system leading to State Hwy 1 38) The Trial Court erred July 10, 2008 P.75-76-77 when they took Mr. Priddy as an expert at the POVE pond into consideration
The Trial Court erred in “Date of Stabilization” with admitting into evidence Exhibit #579 UPRR as this document was withheld from discovery by the County of San Luis Obispo showing Caltrans drainage changes in 2001 as stated: “HWY 1 not adequate drainage on HWY 1 under the train track and overlay from Caltrans in 2001 on HWY 1” This overlay drainage change by Caltrans was not mentioned at trial and is directly linked to exhibit #1789 September 15, 1987 Caltrans Stated: “The State could raise the height of Highway one approximately one foot and leave both the County and the Oceano Community Services District the problem to solve on their own (P. Hom) Exhibit #1773-1774-1775-1777-1778-1779-1780-1781-1783-1784-1785-1786-1787-17881790-1791-1792-1793-1794-1795-1796-1797-1798and 1800 the OCSD meeting transcript testimony of Caltrans January 10, 2005 The Trial Court erred in “Date of Stabilization” with admitting into evidence Exhibit #579 UPRR as this document show a train derailment at the drainage channel inlet pipe for Union Pacific. Engineers for all defendants have never brought the train derailment into evidence? The Trial Court erred in “Date of Stabilization” with admitting into evidence Exhibit #579 UPRR that had not previously been disclosed with other documents showing OCSD knowledge from one of their Previous OCSD directors Concerns of drainage as seen in Caltrans documents exhibit # 1789-1773-1774-1775-1777-1778-1779-1780-1781-1783-1784-1785-1786-1787-17881790-1791-1792-1793-1794-1795-1796-1797-1798and 1800 the OCSD meeting transcript testimony of Caltrans January 10, 2005 (Caltrans Tort Liability concers of Flooding the Baughman property) The Trial Court erred in “Date of Stabilization” with admitting into evidence Exhibit #579 UPRR as the other 400 + documents withheld from discovery that went with the County’s possession of this documents showed the County’s drainage path and changes to the Pacific Ocean with whiteness’s Flooding west of State Highway 1. Exhibits dealing with #579 west of State highway 1 involving the County of San Luis Obispo 1792-1793-1794 Caltrans Brebes-1795-1789-1790-1791-1796-1797-1798-1799-1801-1802-1803-1815-1816-1761-1762-1764-1765-1766 Sustained by the Court 1767 Sustained by the Court1768-1770Sustained by the Court1774-1775-1776-1777-1778-1779-17801783-1785-1786- 1875-1877-1879-1880-1881-1882-1883-1884-1885- (Leaf, supra, 104 Cal.App.3d at pp. 408-409.)
If any of the above dispute the statements or evidence in this blog; please do not hesitate in contacting me or the News Media! It is my intentions to see this problem fixed once and for all! It is unfortunate to see Caltrans actions in these video's affecting public safety. I can be reached at 1-805-773-2089
Pay attention to Caltrans September 15, 1987 Department of Transportation Memorandum stating: “The State could raise the height of Highway one approximately one foot and leave both the County and the Oceano Community Services District the problem to solve on their own.” County Documents withheld from discovery show Caltrans raising State HWY 1 in 2002! Judge Tangeman admitted this new evidence in after our trial however chose to ignore this evidence in his decision!
The County of San Luis Obispo Attorney's chose to withhold evidence from Judge Martin J. Tangeman which we received after trial July 30, 2008 and December 2, 2008 showing County knowledge of Caltrans raising State Highway 1 6-10 inches since December 2000 and 2002 as Caltrans had stated they could raise the height of Highway one approximately one foot and leave both the County and the Oceano Community Services District the problem to solve on their own. View this video below December 10, 2006 from Caltrans no longer mainaining the Drainage channel since December 2002! Notice the dangers to public safety becouse Caltrans does not want to flood the Baughman property as seen in the documents withheld from discovery by the County admitted into evidence after trial!
From the Court Reporter Transcript July 10, 2008 of OCSD. Question Do you have any maintenance plan for the channel or the culvert with respect to debris? Answer. NO, WE DO NOT.
Question-Was that debris removed from the site or, as you said earlier, disposed at the top of the bank? Answer. I believe they Just threw it out with a pitch fork, on the bank.
There was no evidence presented by any of the defendents of State Highway 1 having any flooding problem other then the early 80's before Caltrans raised the State Highway in 2000-2002-along with OCSD, County and Caltrans making drainage changes in 2001 and 2002! OCSD testified "Are you concerned at all that the operation of this pipe could blow leaves and other debris into the pipe during its operation?" Answer. "Um, well we wanted to check and make sure it didn't happen." Question. "So what's your observation?" Answer. "We just look through the culvert. If you could see a culvert going a hundred feet, or whatever it goes, well it is fine"
From the Court reporter transcript Thursday July 10, 2008 The San Luis Obispo Court heard the following testimony placing the OCSD pipe directly in the Railroads Storm Water Drainage Channel and not in the Vicinity as the Court had stated in their August 5, 2008 decision! P. 83 Answer: We run the well— Right now, we’re running about five or six day a week. And we just start it in the morning, so it goes through a cycle – P.86 by Mr. Belsher: thirteen thirty-six and 1337, is this the same discharge pipe we discussed or saw in the previous photograph, only a different configuration? Answer. yes. Question. and this picture dated 2002, so does that seem as if that was the state of the – to your recollection, that the pipe was projecting into the culvert as of 2002? Answer. yes. Question: and did you oversee an extension of the pipe into the culvert that’s depicted there? Answer. yes. P. 85 Question: Are you aware of any permission sought by the district, itself for operating this pipe? Answer: Other then the Health Department, I don't know of any."
In the Court case cited by Judge Teresa Estrada -Mullaney and not Judge Tangeman Skoumbas v. City of Orinda this Diversion of surface waters into a natural watercourse creates liability. With discharge into a private pipe as seen above shows OCSD Liability. As this pipe has been in this channel over five years OCSD has obtained a prescriptive easement with Caltrans knowledge. View exhibit evidence presented to Judge Tangeman...showing no "Date of Stabilization" with Caltrans Grading and Shoveling debris into the Railroads storm water drainage channel and OCSD pipe blocking debris with their pipe in the Railroads inlet and drainage channel!
Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. Diversion of surface waters into a natural watercourse creates liability only if it causes an unreasonable risk of harm under Locklin factors and is a substantial cause of damage. Flood control system that “fails in heavy rain and causes damage to property that has historically been subject to flooding” governed by rule of reasonableness. City could be liable even if its storm drain pipe discharged into a private pipe and the damage occurred “downstream.” ”We conclude the critical inquiry is not whether the entire system was a public improvement, but rather whether the City acted reasonably in its maintenance and control over those portions of the drainage system it does own.” “Substantial cause-and-effect relationship” is enough for liability even for downstream flooding.California’s Flood Liability
In Arreola v. County of Monterey (2002) Shows Caltrans, County and OCSD liability were all aware of this risk posed by its public improvement and deliberately chose a course of action- or inaction-in the face of a known risk." "Knowing that failure to properly maintain the Project channel posed a significant risk of flooding." "State diversion or obstruction of surface water onto land "not historically subject to flooding is not protected by reasonableness rule, but results in strict liability." JAMES ARREOLA et al., Plaintiffs and Respondents, v. --
Arreola v. County of Monterey(2002) 99 Cal.App.4th 722. “We conclude that in order to prove the type of governmental conduct that will support liability in inverse condemnation it is enough to show that the entity was aware of the risk posed by its public improvement and deliberately chose a course of action – or inaction – in the face of that known risk.” “Knowing that failure to properly maintain the Project channel posed a significant risk of flooding, Counties nevertheless permitted the channel to deteriorate over a long period of years by failing to take effective action to overcome the fiscal, regulatory, and environmental impediments to keeping the Project channel clear. This is sufficient evidence to support the trial court’s finding of a deliberate and unreasonable plan of maintenance.” State diversion or obstruction of surface water onto land “not historically subject to flooding” is not protected by reasonableness rule, but results in strict liability. The above drainage changes by our local government are un acceptable knowing the safety problems that they would be creating on State Highway 1. When the Caltrans photo above was taken in 1988. Caltrans had drainage concerns west of State Highway 1 on the Baughman property as seen in the documents that the County of San Luis Obispo chose to withhold from discovery until aftet trial and December 2, 2009 five months after our trial!Caltrans_with_County_of_San_Luis... See Lagoon Changes by State and County State__Caltrans_County__RWQCB__D... PDF]
By standing up for my Constitutional Rights Judge Tangeman has ignored the evidence presented to him at trial and immediately after trial.Trial Exhibits seen by Judge Tangeman... As punishment I have now received bills from our local government of a total of $222,316.68 Caltrans $122,050.42 The County of San Luis Obispo of $31,321.18 The Oceano Community Service District $45,257.87 And Union Pacific Railroad $23,778.21 Trial_Costs_endangering_public_f... Attached in this PDF file County_trying_to_make_a_Deal.pdf is a County July 18, 2006 letter blaming Caltrans for dropping the ball with a permanent fix of State Highway 1 Drainage that would have only cost as written to Glenn Priddy of the County on September 25, 1987 $43,295.00. From these Caltrans documents it shows Caltrans does not want to fix this minor flooding problem at the time because of flooding the Baughman property and the County of San Luis Obispo does not want to purchase property to store the Highway 1 Storm Water west of State Highway 1
When the San Luis Obispo Superior Court States February 2, 2009 "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" then it is time to make the public aware that their Constitutional Rights have been taken away in San Luis Obispo County and its time to make this a National News Story!
The Trial Court erred regarding "Belair, Locklin, and Bunch embody policies that recognize that inverse condemnation recovery be equitable, that support the importance of public works projects, and that ensure that the public entity be liable only for the proportionate amount of damage caused by its actions. A conclusion furthers these policies and also has the further laudable effect of encouraging public entities to engage in flood control efforts while discouraging them from making uncompensated use of private property." (Odello Brothers v. County of Monterey (1998) 63 Cal.App.4th 778, 792.)
Exhibit # 1769 February 2004 San Luis Obispo County Oceano Drainage Flood Control Study Bookout_EstradaTentative_Ruling.... Blames POVE 100% even though Caltrans was caught shoveling and grading storm water debris into the Railroads storm water drainage channel, with OCSD using this channel to dredge 4500 gallons of well water daily? Trial Exhibits seen by Judge Tangeman... Showing Caltrans negligence! BOOKOUT_-_County_nonsuit_opp.pdf
Prescriptive easement notice by OCSD to County, POVE, And Railroad Exhibit #1758, 1730, 1729 to use drainage channel before OCSD installed their PVC pipe several Years latter! No Date of Stabilization with Caltrans Raising State Highway 1 in 2000, 2002 removing a retaining wall in 2003 grading and shoveling debris till November 26, 2008 and raising State Highway 1 again in 2006! BOOKOUT_-_Dec_of_Bookout_in_resp... October 16, 2008 County Discovery Letter!
Judge_Final_Ruling_by_County_Feb... Stating "County, State, Union or OCSD could not have abated the nuisance by undertaking any maintenance" Exhibit #1768 Phil Davis Log Entries. Exhibit # 1789 Caltrans Intentionally Raising State Highway 1 in December 2000 as the Had Stated in September 15, 1987 “The State could raise the height of Highway one approximately one foot and leave both the County and the Oceano Community Services District the problem to solve on their own.” Exhibit # 1800 January 10, 2005 OCSD Transcript of Drainage meeting showing flooding could be Abated--Exhibit #1804 January 10, 2005 Video of OCSD meeting! Exhibit 1816 Excerpts from Flooding video footage! P.7 Mr. Sutton was not employed by POVE in 2000! In 1996 Mr. Sutton did not live in Oceano! Mr. Brebes as County Documents withheld from discovery show his involvement with flooding of Fountain Avenue! Mr. Brebes is in the County's photo Documents withheld from discovery raising State Highway 1 in December 2000! Mr. Davis was involved in Fountain Avenue Flooding documents withheld from Discovery by County of San Luis Obispo Baughman Property!
Evidence_Exhibits_presented_to_Judge Tangeman Baughman Property flooding Exhibit # 1278, 1337, 1338... Exhibits presented to the Court 1278 shows a train de-railment with the OCSD pipe directly in the Railroads drainage pipe inlet! Exhibit #1337 dated during a storm event in 2002 shows the OCSD pvc pipe directly in the Railroad drainage inlet pipe with a water line on the pipe showing Oceano Nursery not flooding. Exhibit # 1338 is immediatly after a rain event showing debris blocked at the OCSD PVC pipe with the OCSD pipe in the Railroads storm water pipe inlet!
Bookout_-_Public_Record_Request_... After trial for documents withheld from discovery by County of San Luis Obispo. Photos of Caltrans maintaining Storm water drainage channel in 2002 and OCSD Director Baughman Property flooding west of State Highway 1 as stated in questionnaire redacted by County his name and address. County changed his statement in their drainage survey from 2002!
Judge_Mullaney_Judgement_Februar... Blames POVE 100%. Under Causation the Skoumbas case, citing Locklin v. Lafayette (1994) 7 Cal. 4th 327, 367 added --leaving out Belair, Lockilin and Bunch embody policies that recognize inverse condemnation!
Trial_Brief.pdf That the County of San Luis Obispo, Oceano Community Services District, and/or State of California - Department of Transportation owned or controlled the property which caused the dangerous condition; Supplemental_Trial_Brief_v3.pdf SUPPLMENTAL_Exhibit_List_07_07_0... Exhibit # 1878 Keith Crowe Causation. 1884, July 25, 1999 Letter to Supervisor Achadjian AMENDED_MASTER_EXHIBIT_LIST__JDP...
Exhibits into evidence showing OCSD drainage changes since December 2002. OCSD obtaining their prescriptive Easment Exhibit # 1729, #1730, OCSD told Southern Pacific Railroad April 21, 1983 in a letter
"This Channel has been protected by use of a culvert that would conduct surface waters under Southern Pacific tracks to what may be a bunker under the loading docks of the Pismo-Oceano Vegetable Exchange (POVE) . The water, then, might flow to a small retention basin maintained by POVE."
"Because this is an established drainage channel. The District feels that its full design capacity should be available for use. Research, however has not clearly revealed the agency responsible for the maintenance of the channel. Consequently, we have no idea the condition of the channel and weather, in its present state of maintenance; it can adequately carry the quantity of water that will be discharged."
Exhibit #1758 easment, along with Caltrans Drainage changes Exhibits 1554-1622, 1766, 1767, February 5, 1999 drainage meeting Fred Brebes Exhibit #1767 County_Discovery_Abuse_Baughman
Evidence_Exhibits_presented_to_Judge Tangeman Baughman Property flooding Exhibit # 1278, 1337, 1338... Exhibits presented to the Court 1278 shows a train de-railment with the OCSD pipe directly in the Railroads drainage pipe inlet! Exhibit #1337 as seen below during a storm event in December 2002 shows the OCSD pvc pipe directly in the Railroad drainage inlet pipe with a water line on the pipe showing Oceano Nursery not flooding. Exhibit # 1338 below is immediatly after a rain event showing debris blocked at the OCSD PVC pipe with the OCSD pipe in the Railroads storm water pipe inlet! As Judge Tangeman has commented on both of these photos; he was aware in his decision that this OCSD pipe does act as a dam and is directly in the Railroads drainage inlet!
Judge Martin J. Tangeman in his August 5, 2008 decision stated: "Plaintiff also alleged that OCSD should be liable because its outfall pipe acted as a dam to capture debris in times of flooding, and/or that at times of discharge from its outfall pipe, debris may have been pushed into the culvert." "In each of these cases, the Court finds that the evidence is too speculative to support liability for inverse condemnation. No studies were undertaken or evidence provided showing the effect, if any, of either of these factors during times of flooding." These photos evidence were presented to the Trial Court showing the Nursery not flooding in December 2002 with this OCSD pipe damming debris! The Trial Court Stated this Pipe was not in this drainage channel is wrong as seen in these photos. View exhibit evidence presented to Judge tangeman... Recent Developments in Inverse Condemnation Law
The Trial Court saw and heard testimony from Fred Brebes that Caltrans maintained the Oceano Community's Storm water Drainage Channel; as Caltrans documents from Fred Brebes of Caltrans Dated November 30, 1988 Shows Caltrans doing maintenance in 1983, 1984, 1985, 1986 and 1987! This photo and records were provided to the San Luis Obispo Court showing Caltrans Maintenance which Caltrans has not done since December 2002 other then push, plow and grade debris into the Oceano Community Storm Water Drainage channel as seen in prior videos and photos above. Judge Tangeman Blames POVE for the County of San Luis Obispo issuing them building permits in the 1970's! Please view these documents showing Caltrans prior maintenance, communication with the County and OCSD and their drainage changes that show why Caltrans is storing Contaminated Storm Water on State Highway 1.Caltrans, County_... This photo was taken by Caltrans in 1988 before OCSD made their Drainage changes; blocking debris in this channel!
Caltrans_with_County_of_San_Luis... OCSD_Attorney_Conflict_Phillips-... Hiring bookkeeper fiancee Judge_Final_Ruling_by_County_Feb... Decision February 2, 2009 The San Luis Obispo Court January 5, 2009 cited see Skoumbas v. City of Orinda (2008) which referenced a case (Keys V. Romley) The August 5, 2008 court decision cited Skoumas v. City of Orinda 2008. The Skoumbas case explains Government Liability! The August 5, 2008 Skoumas case is not a trial case? Judge Tangeman Saw these Video's of Caltrans shoveling debris into this drainage system during a rain storm and then blames POVE 100% for the flooding of State Highway 1! [PDF] Recent Developments in Inverse Condemnation Law Caltrans from the first video above and actions below needs to be aware from California Government Code 725 "it is unlawful for any person to do any of the following Acts: ("b")Obstruct any natural water course so as to: "(1) Prevent, impede or restrict the natural flow of waters from any State Highway into and through such water course, unless other adequate and proper drainage is provided." "(2)"Cause waters to be impounded within any State Highway, to the damage of the Highway.""(3)" "Cause interference with, or damage or hazard to public travel." See Evidence of Exhibits presented to Judge Tangeman of Caltrans grading and shoveling storm water debris into the Oceano Community's Storm Water Drainage Channel!... Caltrans has stated in an email to the Regional Water Quality Control Board January 12, 2009 as seen at the very bottom of this document--"Due to past litigation, the Department is no longer responsible or allowed to maintain the channel located off of the Caltrans right of way." Caltrans prior to this Supervisor in 2002 had maintained this Storm Water Drainage Channel as seen in these Caltrans documents presented to the San Luis Obispo Court-Cal_Trans_Documents.pdf --Caltrans, County Actions... This is negligent drainage system maintenance affecting public safety! 1985_RWQCB_Drainage_Change.pdf 1985 County/RWQCB Drainage Change-Pond OCSD Pipe-County permitsRWQCB_Public_Safety_Questions_Fe... February 18, 2009 OCSD dredging debris On February 13 and 16th 2009 State Highway 1 my property and the Oceano Community has flooded again. Caltrans according to KCOY 12 News has made a statement. "We are working with the County of San Luis Obispo and the Oceano Community Service District to find a long term solution to this flooding issue." Again please view Caltrans PDF file Cal_Trans_Documents.pdf showing why Caltrans is storing Storm Water on State Highway 1. If Pove was responsible as Judge Tangeman has stated then Caltrans would be requiring them to fix this problem instead of working with the County and OCSD! Pismo Oceano Vegetable Exchange does not shovel, dredge or Grade Debris into this Storm Water Drainage Channel as seen above and below and presented evidence to this Court! In the Santa Maria Times it was stated "The judge also wrote she followed Tangeman’s ruling that POVE was primarily responsible for the damage to Bookout’s property in her decision to throw out the remaining claims." (Dangerous Condition , Nuisance And Trespass) This Drainage Maintenance change by OCSD November 30, 2001 December 20, 2002 can not be legal in a Storm water drainage Channel? The substantial cause and effects from this pipe is the cause of State Highway 1 Flooding today. Not POVE as Stated above by Judge Tangeman. The County, Caltrans and OCSD installation; knowledge and unreasonable use of this drainage system affects public safety on State Highway 1. This pipe was installed for local Government use since the County of San Luis Obispo and the Regional Water Quality Control Board required the POVE pond raised in 1985. Caltrans maintained this drainage channel from 1983-2002 as Caltrans and County documents attached show. I am asking for the Public help in seeing that this OCSD pipe is removed along with the sedimentation and debris that has been graded, shoveled and Dredged into this County, Caltrans, OCSD Drainage system by Caltrans and OCSD.
