Opinion
Page 308d
114 Cal.App.4th 308d __ Cal.Rptr.3d __ PETER PATERNO et al., Plaintiffs and Appellants, v. STATE OF CALIFORNIA et al., Defendants and Respondents. C040553 California Court of Appeal, Third District December 24, 2003APPEAL from judgment of the Judicial Council Coordination Proceeding. Yuba County, John J. Golden, Judge. CJJP No. 2104, Affirmed in part and reversed in part.
Desmond, Nolan, Livaich & Cunningham, Gary Livaich, David Collins, and Richard F. Desmond and Law Office of Clifford E. Hirsch; Howard, Rice, Nemerovski, Canady, Falk & Rabkin, Jerome B. Falk, Jr., and Simon J. Frankel for First Union Real Estate Equity & Mortgage Investments; Kronick, Moskovitz, Tiedemann & Girard and Lloyd Hinkelman; Law Offices Of Stanley Bell, Sally G. Bergman; Robins, Kaplan, Miller & Ciresi, and Scott G. Johnson; and Frederick A. Jacobsen for Plaintiffs and Appellants.
Bill Lockyer, Attorney General, Andrea Hoch, Chief Assistant Attorney General, Darryl Doke, Supervising Deputy Attorney General, Sterling A. Smith, Deputy Attorney General, for State of California; G. Steven Jones, and Carl R. Lindmark for Reclamation District 784, Defendants and Respondents.
ORDER MODIFYING OPINION AND DENYING REHEARING; NO CHANGE IN JUDGMENT
THE COURT:
SIMS, Acting P.J., NICHOLSON, J., MORRISON, J.
The opinion filed herein on November 26, 2003, is modified as follows:
1. On page 3, line 4 from bottom on page [113 Cal.App.4th 1003, advance report, 2d full par., line 3 from bottom], insert the following language after " -- would violate Locklin. " and before the sentence commencing with "We do not separately address":
A basic part of the State's flood plan was to accept existing levees as much as possible, to reduce the cost of an extensive, coordinated, flood-control system. The People benefited from that cost-saving feature. However, the record shows the State never tested the Linda levee, or reviewed the records of its construction, to see if it was as strong as the global plans assumed it was, and the State even ignored specific warnings about the levee's weaknesses. In such circumstance, the costs of the levee failure must be deemed part of the deferred costs of the project.
2. On page 9, line 1 of last paragraph [113 Cal.App.4th 1007, advance report, 1st full par., line 1], insert the words "to the proposed statement of decision," between the words "objections" and "Paterno" so that line reads:
In his objections to the proposed statement of decision, Paterno partly complained that there was
3. On page 31, line 8 of second full paragraph [113 Cal.App.4th 1021, advance report, 3d par., lines 6 & 7], delete the phrase "three-quarters of a century" and insert the word "decades" in its place so that line reads:
built. It operated the levee for decades
4. On page 33, lines 3 and 4 from the bottom of first full paragraph [113 Cal.App.4th 1022, advance report, line 3 from bottom of 3d full par.], delete the phrase "for the preceding 60 years" and insert the phrase "up to that point" so the lines read:
Page 308e
was ignorant of the condition of its own levee up to that point, after this letter the State had 15 years to
5. On page 47, lines 4 and 5 from top of page [113 Cal.App.4th 1030, advance report, 2d full par., last sentence], delete the phrase "The 75 years" and insert the phrase "The many years" so the lines read:
that the only relevant shift of risk took place in 1904. The many years the State operated the levee is also relevant.
This modification does not change the judgment. Respondent's petition for rehearing is denied.