Opinion
NOT TO BE PUBLISHED.
Superior Court County of Santa Barbara Denise DeBellefeuille, Judge, Super. Ct. No. 1187154.
John P. Thorndike, in pro. per. for Plaintiff and Appellant.
Edmund G. Brown Jr., Attorney General, Marsha S. Miller, Supervising Deputy Attorney General, Kenneth G. Lake, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
John P. Thorndike, in propria persona, brought an action for damages against the California Department of Fish and Game (DFG). The action was apparently based on inverse condemnation. The trial court granted the DFG summary judgment. We affirm.
FACTS
Thorndike owns a parcel of real property in Santa Barbara County. He purchased the property in 1968 or 1969. Originally, he owned 34 acres. But he has sold portions of the property over the years. He now claims to own 2.4 acres, but county records show he owns 1.2 acres. There are no residential structures on the property.
Thorndike's property is located on Toro Creek. The creek eventually discharges into the Pacific Ocean. The creek is a major wildlife corridor and is in an environmentally sensitive habitat area.
There is a horizontal oil well on Thorndike's property drilled by Occidental Petroleum in 1886. Since that time, a mixture of oil and water percolates out of the ground. Without an oil-water separator, the mixture flows down hill and discharges into Toro Creek. Thorndike acknowledges that oil is a pollutant and that he is legally responsible for the discharge.
In 1993, Thorndike agreed with the State Water Quality Board in writing to allow outside parties to construct and operate a permanent separator on his property, and to allow regulatory agencies to enter his property to inspect the facility.
The Environmental Protection Agency (EPA) completed construction of a permanent separator on Thorndike's property in 1997. Thorndike acknowledges that the agreement authorizes the construction of the separator and entry onto his property for inspection purposes by agencies, such as the DFG.
In March of 2000, Thorndike wrote the EPA advising that he intends to take over oil disposal on the property in January of 2001. Thorndike noted that the price of oil was going up, and he believed the recovered oil had commercial value. The EPA responded that the cost of removing the oil from his property is approximately $50,000 per year, and that the oil has no commercial value.
In September of 2000, Thorndike cut a pipe coming from the separator. The pipe allowed clean water to flow into Toro Creek. He wanted to place a shutoff valve and meter on the pipe. His apparent plan was to charge his down stream neighbors for the water.
A DFG agent noticed the cut pipe, repaired it, and confiscated Thorndike's tools. The DFG left a letter to Thorndike telling him not to cut the pipe without obtaining a permit. By a different letter, the DFG advised Thorndike that a cutoff valve could cause water to back up into the separator resulting in an oil spill.
Thorndike never made an application for any permits. He said he gave up the idea of obtaining permits when he learned he would be required to post a $300,000 bond to take over the oil recovery on his property.
On December 29, 2005, Thorndike filed a complaint against the DFG. The complaint alleges: that the DFG violated its own regulations and the California Environmental Quality Act (CEQA) by issuing permits to alter a stream bed on Thorndike's property; that the DFG desires to have Thorndike's well water flow into the ocean at a cost to Thorndike and to hold Thorndike responsible when the water contains oil; and that the DFG objects to Thorndike placing a cutoff valve on the well. Thorndike alleged these actions constitute a taking of his property.
DISCUSSION
I
Summary judgment is properly granted only if all papers submitted show there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The court must draw all reasonable inferences from the evidence set forth in the papers except where such references are contradicted by other inferences or evidence which raise a triable issue of fact. (Ibid.) In examining the supporting and opposing papers, the moving party's affidavits or declarations are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19.)
The moving party has the initial burden of showing that one or more elements of a cause of action cannot be established. (Saelzer v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) Where the moving party has carried that burden, the burden shifts to the opposing party to show a triable issue of material fact. (Ibid.) Our review of the trial court's grant of the motion is de novo. (Id. at p. 767.)
II
Thorndike appears to contend he was denied a hearing on the DFG's motion for summary judgment.
Thorndike failed to file any opposition to the motion. Instead, when he appeared at the hearing on the motion, he requested more time to respond. He told the trial court he had a heart attack and was in the hospital. He offered no documentation to support his claim of illness. The trial court did not believe him. The court stated, "You look great." The court denied his request for a continuance.
Failure to include a separate statement of facts responding to each of the material facts contended by the moving party is alone grounds for granting the motion. (Code Civ. Proc., § 437c, subd. (b)(3).) Here Thorndike's failure to file any response was clearly grounds for granting the motion.
In any event, the undisputed facts show the motion was properly granted on the merits.
It is undisputed that Thorndike never submitted a government claim. (Gov. Code, §§ 905, 945.4.) To the extent his complaint seeks damages for other than inverse condemnation, the failure to submit a government claim is fatal to his cause of action. (Nguyen v. Los Angeles County/UCLA Medical Center (1992) 8 Cal.App.4th 729, 732.) Moreover, it is undisputed Thorndike failed to exhaust his administrative remedies. He never applied for any permits. Exhaustion of administrative remedies is a jurisdictional prerequisite to resort to the courts. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70.) The doctrine of exhaustion of administrative remedies applies to an inverse condemnation action. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 11-12.)
We need not discuss the additional reasons why the court properly granted the motion.
The judgment is affirmed. Costs are awarded to respondent.
We concur: YEGAN, J., COFFEE, J.