Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. RCV088360. Barry L. Plotkin, Judge.
Law Offices of Glenn A. Brown, Jr., and Glenn A. Brown, Jr., for Plaintiff and Appellant.
Clausen Miller and Michael W. Goodin for Defendant and Respondent.
OPINION
Gaut, J.
1. Introduction
Plaintiff Carl Polage owns residential real property located in the City of Ontario and subject to flooding. The trial court granted Ontario’s summary judgment motion on Polage’s complaint for inverse condemnation, dangerous condition of public property, and nuisance. Polage appeals. We affirm the judgment on the grounds Polage’s suit is time-barred.
2. Factual and Procedural Background
In his complaint, Polage alleges his property was flooded in October 2004 by water runoff from public property and has continued after that date. Polage filed his complaint in June 2005. Polage repeatedly tries to characterize his complaint as seeking damages only for the October episode but a fair reading of the allegations is that he asked for damages sustained on October 20, 2004, for damages continuing after that date, for other general and special damages, and for injunctive relief to remedy the flooding problem.
Ontario filed a summary judgment motion based on Polage’s deposition testimony and his interrogatory responses. Polage testified in his deposition that he has lived at the property at 147 Geyer Court since 1988. The flooding episodes began occurring in 1992 and were repeated every year. The flooding was caused by drainage from Geyer Court, South Euclid Avenue, and State Highway 60 because Polage’s house is lower in elevation than those public improvements. In January 1997, Polage received a grant of $3,867 from Ontario for the installation of a new driveway and a concrete block wall to alleviate the flooding. In his interrogatory responses, he described the flooding that occurred during a storm on October 20, 2004.
According to public records, the correct name for Geyer is “Court” not “Street.”
In opposition to Ontario’s motion, Polage tried to characterize the foregoing facts as “disputed” based on legal arguments but not on contravening evidence. Polage did, however, present evidence in the form of a declaration by William Gabrielson, a civil engineer. Gabrielson offered his opinions that the flooding was caused by public improvements and the condition causing the flooding was not stabilized but could be abated at a cost of $176,576.40. Polage argued that—because the flooding was a continuing, not a permanent, nuisance—he was entitled to recover damages for the October 2004 episode.
Ontario replied to Polage’s opposition by objecting to large portions of Gabrielson’s declaration and submitting additional evidence contained in the declaration of Tim Mim Mack, a city engineer. In his declaration, Mim Mack asserted there had been no change in the drainage or public improvements affecting the subject property since June 1997, the month when the retaining wall was built on Polage’s property.
The court made a preliminary tentative ruling. It first ruled on Ontario’s evidentiary objections, permitting Gabrielson’s opinion that the flooding was caused by improper drainage but deciding there was no foundation for Gabrielson’s opinion that “the control of the surface water . . . has not stabilized and continues to be uncertain.” The court then indicated its intention to grant summary adjudication on the inverse condemnation claim, ruling that the applicable three-year statute of limitations began to run in June 1997. The court also tentatively granted summary adjudication of the second cause of action for dangerous condition of public property, subject to a six-month statute of limitations. (Gov. Code, § 911.2.) The court determined the third cause of action for nuisance was also subject to a three-year statute of limitations but it requested further briefing about whether the nuisance was permanent or continuing and whether it could be reasonably abated. The motion was continued for further briefing and argument.
In supplemental opposition, Polage challenged the content and use of the Mim Mack declaration.
Ultimately, the court granted Ontario’s summary judgment motion. It decided Gabrielson’s opinion about the cost and means of reasonable abatement lacked foundation. The court ruled the inverse condemnation claim was barred by the three-year statute of limitations set forth in Code of Civil Procedure section 338, subdivision (j), because flooding had been ongoing since 1992 and 1997. Polage’s claim for dangerous condition of public property was also barred by the six-month statute of limitations as provided by Government Code sections 911.2 and 945.6, subdivision (a)(1). The court further ruled the flooding was a permanent nuisance beginning in 1992 or 1997 and Polage’s nuisance claim was barred by another three-year statute of limitations. (Code Civ. Proc., § 338, subd. (b); Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228.) The court declined to rule on Ontario’s claim for a prescriptive easement.
The reference to Gabrielson’s declaration in the order granting summary judgment did not contradict the trial court’s ruling that portions of the declaration lacked foundation.
3. Standard of Review
The standard of review is well known: “We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has ‘shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,’ the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .’ (Code Civ. Proc., § 437c, subd. (o)(2); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.) A party may rely on a new legal issue on appeal. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 24.) A judgment may be affirmed based on any correct legal theory. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18-19; Howard S. Wright Const. Co. v. BBIC Investors, LLC (2006) 136 Cal.App.4th 228, 240.)
In his appeal, Polage defends his claims for nuisance and for inverse condemnation but does not expressly discuss his claim for dangerous condition of public property which we deem to have been waived. Polage objects to the court’s reliance on evidence that was not presented initially as part of Ontario’s motion and, instead, was presented in Ontario’s reply and supplemental submissions.
4. Discussion
The superior court treated Polage’s claims as a permanent nuisance with the limitations period accruing either in 1992 or no later than 1997 when the conditions causing the flooding became stabilized. Polage argues that he elected to treat his claim as a continuing, not a permanent, nuisance and, therefore, the limitations period did not begin to accrue until October 2004. Ontario maintains the court correctly determined the flooding was a permanent nuisance and the three-year limitations period barred Polage’s nuisance claim.
A three-year statute of limitations applies to a claim for nuisance and a claim for inverse condemnation arising out of nuisance. (Code Civ. Proc., § 338, subds. (b) & (j); Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1216 (Beck); Pierpont Inn, Inc. v. State of California (1969) 70 Cal.2d 282, 292 (Pierpont), citing United States v. Dickinson (1947) 331 U.S. 745.)
The accrual of a nuisance cause of action depends on whether the nuisance is permanent or continuing: “In general, a permanent nuisance is considered to be a permanent injury to property for which damages are assessed once and for all, while a continuing nuisance is considered to be a series of successive injuries for which the plaintiff must bring successive actions. (Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 868-869 (Baker).)
In Baker, the court held that airport noise was “[t]he classic example of a continuing nuisance.” (Baker, supra, 39 Cal.3d at p. 869.) But permanent structures and public improvements constituted permanent nuisances. (Ibid.) In an action on a permanent nuisance, the plaintiff will be permitted to recover both past and prospective damages while in an action on a continuing nuisance prospective damages are unavailable and recovery is limited to actual injury suffered prior to commencement of each action. (Ibid.) With respect to a permanent nuisance, the statute of limitations begins to run on the creation of the nuisance and bars all claims after its passage, while each repetition of a continuing nuisance is considered a separate wrong which commences a new period in which to bring an action for recovery based upon the new injury. [Citation.]” (Beck, supra, 44 Cal.App.4th at pp. 1216-1217.)
Another aspect of the analysis of whether a nuisance is permanent or continuing is whether a nuisance is stabilized and whether it can reasonably be abated. On the issue of stabilization, the courts have declared a rule that a cause of action does not begin to accrue until the nuisance and consequent damages are stabilized. (Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848, 857-858, citing Pierpoint, supra, 70 Cal.2d at pp. 291-294 and Stonewall Ins. Co. v. City of Palos Verdes Estates (1996) 46 Cal.App.4th 1810, 1843.)
On the issue of reasonable abatement, in a case involving a single episode of flooding of private property caused by a public entity, the Court of Appeal also reviewed the law on permanent or continuing nuisance and cited Baker’s statement that a continuing nuisance is one that can be discontinued or abated at any time. (Lyles v. State (2007) 153 Cal.App.4th 281, 291, citing Baker, supra, 39 Cal.3d at p. 869.) The Lyles court ruled: “Here, it is undisputed that plaintiffs suffered one-time damage in 1998 and no damage since 1998. Thus, assuming that defendants’ faulty drainage system constitutes a nuisance, it is of the permanent variety that requires plaintiffs to sue within three years of being damaged. This action is therefore untimely.” (Lyles, supra, at p. 291.)
Finally, although in doubtful cases, a plaintiff may elect to treat a nuisance as permanent or continuing and his election is entitled to deference, “that choice must nevertheless be supported by evidence that makes it reasonable under the circumstances. (See Wilshire Westwood Associates v. Atlantic Richfield Co. [(1993) 20 Cal.App.4th 732,] 744-745; Capogeannis v. Superior Court (1993) 12 Cal.App.4th 668, 682; Spar v. Pacific Bell (1991) 235 Cal.App.3d 1480, 1485-1486.) A plaintiff cannot simply allege that a nuisance is continuing in order to avoid the bar of the statute of limitations, but must present evidence that under the circumstances the nuisance may properly be considered continuing rather than permanent. (Ibid.) It is only where the evidence would reasonably support either classification that the plaintiff may choose which course to pursue. (Spar v. Pacific Bell, supra, 235 Cal.App.3d at p. 1486.) [¶] There is no short and all-inclusive rule for distinguishing between permanent and continuing nuisances. (Spar v. Pacific Bell, supra, 235 Cal.App.3d at p. 1484.) [E]ach case must be determined upon its own peculiar circumstances with guidance from, but not straightjacket conformance with, earlier decisions.” (Beck, supra, 44 Cal.App.4th at p. 1217.)
Here Polage complains of flooding that began in 1992 and continued every year, even after a remedy was attempted in 1997 when repairs were effected. It is not disputed that, since that date, there have been no changes or modifications of the public improvements. To the extent that the court relied on Mim Mack’s declaration, which was not part of Ontario’s original submission in support of its motion for summary judgment, we deem the trial court had the discretion to consider the additional evidence about the remedial efforts concluded in 1997. (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 437-438.) Polage was allowed to depose Mim Mack and to address the arguments based on his evidence. Therefore, Polage was not denied due process. (Ibid.) The undisputed evidence was the flooding was caused by a permanent condition of public property. Thus, the evidence demonstrated the nuisance is stabilized. The case of Baugh v. Garl (2006) 137 Cal.App.4th 737, 747, upon which Polage relies heavily does not apply because it involved a continuing nuisance.
Additionally, as to the issue of abatement, without Gabrielson’s declaration, Polage did not make any showing that the permanent nuisance could reasonably be abated: “Since a defendant could literally be ordered to move mountains to abate a nuisance, virtually everything can be said to be abatable if all other considerations are disregarded. [Citation.] Accordingly, ‘the discontinued-or-abated rubric should be regarded as no more than a convenient shorthand for the fundamental considerations’ that must enter into the determination. [Citation.] These considerations include such things as the feasible means of, and alternatives to, abatement, the time and expense involved, legitimate competing interests, and the benefits and detriments to be gained by abatement or suffered if abatement is denied. [Citation.]” (Beck, supra, 44 Cal.App.4th at p. 1220.)
The present case differs from Lyles in that Polage suffered ongoing yearly damage from 1992 until 2004. In his complaint he sought his 2004 damages, prospective damages, and injunctive relief. Nevertheless, we conclude that Beck and Lyles, and the cases they cite, support the trial court’s determination that it is undisputed the ongoing flooding of Polage’s residence is a permanent nuisance. Polage knew about the flooding for many years before he filed suit. Under the circumstances, the flooding cannot properly be considered a continuing nuisance under the abatability test.
We conclude the permanent nuisance came into existence in 1992, or no later than 1997 when the conditions leading to flooding became stabilized. When the next instance of annual flooding occurred in 1998, the three-year statute of limitations began to accrue. (Polin v. Cho (1970) 8 Cal.App.3d 673, 677, citing Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345; Brush v. Southern Pacific Co. (1920) 47 Cal.App. 54, 58.)
For the purpose of the statute of limitations, Polage cannot disregard the earlier flooding and elect to bring successive actions for damages beginning in 2004. Any nuisance claim brought more than three years after 1997 is barred by the three-year statute of limitations. The same analysis applies concerning the inverse condemnation claim.
In view of this conclusion it is unnecessary to consider the remaining points raised by Polage. We do not need to address the issue of the prescriptive easement because the inverse condemnation claims based on nuisance are barred.
Appellate counsel uses various spellings—“proscriptive,” “perspective,” and “perceptive”—which we understand to mean “prescriptive.”
5. Disposition
Because Polage’s claims are barred by the statute of limitations, we affirm the summary judgment in favor of Ontario. Ontario, as the prevailing party, shall recover its costs on appeal.
We concur: Hollenhorst, Acting P. J., Richli, J.