Opinion
G048609
06-11-2015
MARIAN KEEGAN, Plaintiff and Appellant, v. CHARLES VIVIANI et al., Defendants and Respondents. MARIAN KEEGAN, Plaintiff and Appellant, v. THREE ARCH BAY COMMUNITY SERVICES DISTRICT, Defendant and Respondent. CHARLES KINNEY, Plaintiff and Appellant, v. THREE ARCH BAY COMMUNITY SERVICES DISTRICT et al., Defendants and Respondents.
Marian Keegan, in pro. per.; and Charles G. Kinney (now involuntarily inactive) for Plaintiff and Appellant Marian Keegan. William M. Rubendall; and Sarah Nowels for Plaintiff and Appellant Charles G. Kinney. Berger Kahn and Alan H. Boon for Defendants and Respondents Charles Viviani and Greg Viviani. The Beggs Law Firm and Robert M. Beggs for Defendants and Respondents John Chaldu, Lynn Chaldu and the John Chaldu Trust. Daley & Heft, Lee H. Roistacher, Richard J. Schneider and Reece A. Roman for Defendant and Respondent Three Arch Bay Community Services District.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115 . (Super. Ct. No. 30-2010-00409507) OPINION (Super. Ct. No. 30-2011-00529377) (Super. Ct. No. 30-2011-00529382) Appeal from judgments and orders of the Superior Court of Orange County, Linda S. Marks, Judge. Affirmed. Request for judicial notice denied. Marian Keegan, in pro. per.; and Charles G. Kinney (now involuntarily inactive) for Plaintiff and Appellant Marian Keegan. William M. Rubendall; and Sarah Nowels for Plaintiff and Appellant Charles G. Kinney. Berger Kahn and Alan H. Boon for Defendants and Respondents Charles Viviani and Greg Viviani. The Beggs Law Firm and Robert M. Beggs for Defendants and Respondents John Chaldu, Lynn Chaldu and the John Chaldu Trust. Daley & Heft, Lee H. Roistacher, Richard J. Schneider and Reece A. Roman for Defendant and Respondent Three Arch Bay Community Services District.
* * *
These are the seventh and eighth appeals arising out of the knock-down drag-out saga engulfing what must surely be a residential area bereft of neighborly pleasantries. The gaping wounds associated with this particular appeal arise from drainage and parking problems on a street laid out decades ago. (See Kinney v. Overton (2007) 153 Cal.App.4th 482, 488-489.)
In their respective consolidated lawsuits, plaintiffs and appellants Marian Keegan and Charles Kinney alleged that the owner of Virginia Way in Laguna Beach, the street on which they each own property, is a suspended corporation that has failed to address significant drainage problems on the street. Looking for an alternate defendant, Keegan and Kinney sued the Three Arch Bay Community Services District (TAB) for aggravating the drainage problem. They also sued their neighbors, Charles Viviani, and John and Lynn Chaldu (and their trust), for their failure to alter their properties to alleviate flooding on the street. While she was at it, Keegan took the opportunity to sue over parking problems on the street, including as a defendant Greg Viviani, the son of Charles Viviani. The trial court granted summary judgment motions for all defendants, collectively disposing of the litigation.
From time to time we refer to Charles and Greg Viviani by their first names, for ease of reference. We mean no disrespect. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1513, fn. 2.)
Keegan and Kinney appeal. They have not met their burdens to show error. We affirm.
I
FACTS
Keegan filed an amended complaint against the Chaldus and the Vivianis in Case No. 30-2010-00409507. She asserted causes of action for nuisance, continuing nuisance, trespass and continuing trespass. The nuisance causes of action were based on the "free use" of her property and the "free use" of Virginia Way—issues apparently arising out of flooding and parking problems. The trespass causes of action were based on the deposit of water, mud and debris due to flooding.
Thereafter, Keegan filed a complaint against TAB in Case No. 30-2011-00529377. In that case, she again asserted causes of action for nuisance, continuing nuisance, trespass and continuing trespass, based on the flooding of her residential property.
Kinney filed a first amended complaint in Case No. 30-2011-00529382 against TAB, Charles Viviani, and the Chaldus. He asserted causes of action for permanent nuisance, continuing nuisance, permanent trespass, continuing trespass, and inverse condemnation, based on flooding issues. The inverse condemnation cause of action was directed to TAB only.
The court ordered the consolidation of the three lawsuits. It disposed of some of the causes of action through rulings on various motions. It ultimately resolved the remaining causes of action on motions for summary judgment.
II
DISCUSSION
A. Appealable Judgments and Orders:
(1) Introduction
At the outset, we must pause to consider whether we should hear these appeals at all. Each of the notices of appeal exposes issues bearing upon the jurisdiction of this court. By order of April 1, 2015, we requested the parties to file supplemental briefing on the issues. Each party, other than Keegan, filed supplemental briefing.
In their supplemental briefing, TAB and the Chaldus notified this court that Kinney had been placed on involuntary inactive status by the State Bar of California. Consequently, we sent out an order directing Keegan to file a substitution of attorney and we gave her an additional opportunity to file supplemental briefing on the possibility of dismissal. However, she did not do so.
(2) Rulings for TAB
By minute order of May 29, 2013, the court granted TAB's motions for summary judgment as against both Keegan and Kinney. On June 19, 2013, the court entered a judgment in favor of TAB and against Keegan and Kinney.
On June 17, 2013, before judgment was entered in favor of TAB, Keegan filed her notice of appeal from: (1) "the order(s) granting summary judgment and the judgment(s) thereon in favor of Defendant THREE ARCH BAY COMMUNITY SERVICES DISTRICT . . . entered on or about May 29, 2013." So, Keegan filed what would have been a timely appeal from a May 29, 2013 order granting summary judgment, were an order granting summary judgment appealable. But it is not. (Saben, Earlix & Associates v. Fillet (2005) 134 Cal.App.4th 1024, 1030.) To the extent we characterize Keegan's appeal as taken from the subsequent judgment, entered June 19, 2013, her June 17, 2013 notice of appeal was clearly premature.
TAB argues in its supplemental letter briefing, as it did in its respondent's brief, that this court should not exercise its discretion to "save" Keegan's appeal. (Cal. Rules of Court, rule 8.104(d)(2).) It cites case authority to the effect that the trend is away from saving defective appeals and towards compelling parties to learn to comply with the rules. (See, e.g., Jordan v. Malone (1992) 5 Cal.App.4th 18, 22.) TAB also says that when it pointed out the defective appeal in its respondent's brief Keegan did not bother to address the point and did not ask the court to exercise its discretion to save her appeal. It also observes that Kinney managed to file an appeal from the correct document in his own notice of appeal, so he ought to have been able to file a proper notice of appeal for Keegan as his client. (Of course, Kinney's notice of appeal was ostensibly filed by his own attorney rather than himself.) Finally, TAB points out that in her opening brief on appeal Keegan falsely represented to the court that she had filed an appeal from the June 19, 2013 judgment.
We are greatly disturbed by Kinney's failure to comply with procedural rules. This court has warned him of such failures previously. (See, e.g., Kinney v. Overton, supra, 153 Cal.App.4th at pp. 488, fn. 2, 497 & fn. 7.) And we must say, we find it particularly disturbing that Kinney, as Keegan's lawyer, filed an opening brief in which he represented that she had filed an appeal from the June 19, 2013 judgment. She clearly had not. However, inasmuch as we will hear the appeal of Kinney, as appellant, with respect to the June 19, 2013 judgment in favor of TAB, there would be no judicial economy in dismissing Keegan's premature appeal from that same judgment. Consequently, we reluctantly choose to exercise our discretion to treat Keegan's June 17, 2013 appeal with respect to the ruling in favor of TAB to have been filed immediately after the June 19, 2013 entry of judgment in favor of TAB. (Cal. Rules of Court, rule 8.104(d)(2).)
(3) Rulings for Chaldus and Charles Viviani
By minute order of May 29, 2013, the court granted the motion for summary judgment brought by Charles Viviani and the Chaldus as against both Keegan and Kinney. It ordered the prevailing parties to prepare orders and judgments. On May 31, 2013, the Chaldus filed a notice of rulings pertaining to the minute order on the summary judgment motion.
On June 17, 2013, Keegan filed a notice of appeal from, inter alia, "the order(s) granting summary judgment and the judgment(s) thereon in favor of [the Viviani and Chaldu] Defendants . . . entered on or about May 29, 2013."
Thereafter, on June 19, 2013, a formal "ORDER GRANTING SUMMARY JUDGMENT" in favor of Charles Viviani, John and Lynn Chaldu, and the Trust of John Chaldu as against both Keegan and Kinney was filed. The order stated that the summary judgment motion of Charles Viviani and the Chaldus was granted and that "[j]udgment shall be entered in favor of" Charles Viviani and the Chaldus and against Keegan and Kinney.
On August 5, 2013, Charles Kinney filed a notice of appeal from an "order granting summary judgment for which a notice of entry of judgment was given in favor of Defendant CHARLES VIVIANI . . . and [the Chaldu] Defendants . . . entered on or about June 19, 2013 . . . ."
Charles Viviani requests that this court dismiss the appeals of both Keegan and Kinney with respect to the rulings in his favor. He emphasizes that they both have purported to appeal from nonappealable orders granting summary judgment (Saben, Earlix & Associates v. Fillet, supra, 134 Cal.App.4th at p. 1030), rather than from "the appealable summary judgments in favor of Charles Viviani (and the Chaldu respondents) against Keegan and Kinney that were entered on June 19, 2013 as items 803 and 806 in the register of actions . . . ."
The register of actions reflects that, on June 19, 2013, item 805 was entered stating: "Order Granting (Summary Judgment) filed by Chaldu, John; Chaldu, Lynn; Trust of John Chaldu; Viviani, Charles; Viviani, Greg on 6/19/2013[.]" The register of actions also contains entries 803 and 806, each of which is dated June 19, 2013 and reads: "The Court enters judgment as to Amended Complaint."
The Chaldus agree that the appeals should be dismissed as taken from nonappealable orders, although they make no mention of the entries in the register of actions. They, too, point out that the appeals have been taken from nonappealable orders granting summary judgment. They also emphasize that appellate courts lack the jurisdiction to hear appeals from nonappealable orders. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) In addition, the Chaldus, like Charles Viviani, note the trend away from saving defective appeals. Finally, the Chaldus point out that Keegan misled the court when stating in her opening brief that she had appealed from a summary judgment in favor of them and Charles Viviani; "Kinney did not even attempt to appeal the judgment itself; and," Keegan and Kinney did not "include the judgment in the record on appeal[.]"
Yet according to Kinney, "[n]o judgment was signed for Chaldu and Viviani . . . ." We take this to mean that Kinney concedes no formal judgment was entered, although Charles Viviani characterizes the entries in the register of actions as being judgments. Kinney says the June 19, 2013 order granting summary judgment should be construed as a judgment because Charles Viviani and the Chaldus treated it as though it were one. He observes that Charles Viviani and the Chaldus each filed memoranda of costs vis-à-vis both Keegan and Kinney. Therefore, he reasons, citing California Rules of Court, rule 3.1700, that Charles Viviani and the Chaldus themselves must have believed judgment had been entered already.
We are displeased that Keegan filed a premature appeal from a minute order granting summary judgment motions and Kinney filed an appeal from a formal order granting summary judgment. However, we also are displeased that the prevailing parties, having been directed "to prepare orders and judgments," prepared only formal orders, apparently relying on the register of actions to supply the requisite judgments. And we note, no action or agreement of the parties can create jurisdiction in this court where none exists. (Sy First Family Ltd. Partnership v. Cheung (1999) 70 Cal.App.4th 1334, 1344-1345.) However, inasmuch as the register of actions reflects entry of judgment, and the trial court apparently ruled on the memoranda of costs, it would appear that court accepted the formal orders as including judgments and proceeded accordingly. This being the case, we too will deem the formal orders to include judgments and will further treat Keegan's premature appeal as having been filed after the judgments were entered. We commend to counsel for all parties a familiarization with the rules of appellate procedure, lest they suffer a greater misadventure on another appeal.
By order of April 14, 2015, we informed the parties that we intended to take judicial notice of the record in the companion appeal of Marian Keegan v. Three Arch Bay Community Services District, Case No. G050032 (Evid. Code, §§ 452, subd. (d), 459), and gave the parties an opportunity to object. No objection having been filed, this court hereby takes judicial notice of that record.
(4) Ruling for Greg Viviani
A formal "ORDER GRANTING SUMMARY JUDGMENT" in favor of Greg Viviani was filed on April 16, 2013. It stated: "IT IS ORDERED that: [¶] 1. The motion of defendant Greg Viviani for summary judgment be granted. [¶] 2. Judgment be entered in favor of defendant Greg Viviani and against plaintiff Marian Keegan."
In her notice of appeal, Keegan appealed from "the order(s) granting summary judgment and the judgment(s) thereon in favor of Defendant GREG VIVIANI . . . entered on or about April 16, 2013 and/or . . . May 29, 2013." As we have seen, the formal order granting summary judgment was filed on April 16, 2013. We do not have a copy of a judgment in favor of Greg Viviani in the record on appeal. However, as Greg Viviani points out in his supplemental letter brief, an April 16, 2013 entry in the register of actions states: "The Court enters judgment as to Amended Complaint." That entry immediately follows an April 16, 2013 entry reading, "Order Granting (Motion for Summary Judgment) filed by Viviani, Charles; Viviani, Greg on April 04/16/2013."
Greg Viviani argues that this court should dismiss Keegan's appeal because she appealed from a nonappealable order "granting summary judgment rather than the appealable summary judgment . . . that was entered on April 16, 2013 as item 688 in the register of actions . . . ." We take this to mean that Greg construes the item 688 entry in the register of actions as the judgment, rather than any formal judgment. Indeed, he does not state that a formal judgment was ever filed. Taken in this light, he would appear to quibble only with Keegan's wording in her notice of appeal. Distilled to its essence, she said she was appealing from "the order(s) granting summary judgment and the judgment(s) thereon . . . entered on or about April 16, 2013 . . . ." (Italics added.) To the extent Greg views the judgment as being the item 688 entry on the register of actions, he cannot complain about Keegan's notice of appeal.
Indeed, in Greg's April 22, 2013 notice of entry of judgment, he stated "that on April 16, 2013 the order granting summary judgment in favor of Defendant Greg Viviani and against Plaintiff Marian Keegan was filed, and that judgment was entered by the clerk of the above-referenced court pursuant to said order." Given that Greg Viviani, at the time he sent out his notice of entry of judgment, represented that judgment had been entered, we deem the formal order granting summary judgment to include a formal judgment. (Cf. Saben, Earlix & Associates v. Fillet, supra, 134 Cal.App.4th at p. 1030.) We suggest that, in the future, Greg's counsel make certain a formal summary judgment is entered after an order granting summary judgment is filed, to avoid ambiguities in the record and the risk of adverse procedural consequences.
B. Summary Judgment Principles:
"'Under summary judgment law, any party to an action, whether plaintiff or defendant, "may move" the court "for summary judgment" in his [or her] favor on a cause of action . . . or defense (Code Civ. Proc., § 437c, subd. (a))—a plaintiff "contend[ing]. . . that there is no defense to the action," a defendant "contend[ing] that the action has no merit" (ibid.). The court must "grant[]" the "motion" "if all the papers submitted show" that "there is no triable issue as to any material fact" (id., § 437c, subd. (c))—that is, there is no issue requiring a trial as to any fact that is necessary under the pleadings and, ultimately, the law [citations]—and that the "moving party is entitled to a judgment as a matter of law" (Code Civ. Proc., § 437c, subd. (c)).' [Citation.]" (Willemsen v. Mitrosilis (2014) 230 Cal.App.4th 622, 626.)
"'[I]n moving for summary judgment, a "defendant . . . has met" his [or her] "burden of showing that a cause of action has no merit if" he [or she] "has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. . . ." (Code Civ. Proc., § 437c, subd. [(p)(2)].)' [Citation.]" (Willemsen v. Mitrosilis, supra, 230 Cal.App.4th at p. 626, fn. omitted.) "The plaintiff . . . may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto." (Code Civ. Proc., § 437c, subd. (p)(2).)
"On review of a summary judgment, we 'examine the record de novo and independently determine whether [the] decision is correct. [Citation.]' [Citation.]" (Willemsen v. Mitrosilis, supra, 230 Cal.App.4th at p. 626.) "'But this de novo review does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed. [Citations.]' [Citations.]" (Gunn v. Mariners Church, Inc. (2008) 167 Cal.App.4th 206, 212.)
C. Actions against TAB:
(1) Causes of Action
The court sustained without leave to amend TAB's demurrers to Kinney's causes of action for trespass, continuing trespass and inverse condemnation. Consequently, when TAB filed its motion for summary judgment as to Kinney, only his causes of action for permanent nuisance and continuing nuisance remained. At the same time, all of Keegan's causes of action were still in play.
(2) Allegations of Amended Complaints
In our summary judgment review, we first "'"'identify the issues raised by the pleadings, since it is these allegations to which the motion must respond . . . . [Citations.]"' [Citation.]' [Citation.]" (Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182-1183.)
In her complaint in Case No. 30-2011-00529377, Keegan asserted that her property on Virginia Way was subjected to periodic flooding during rains due at least in part to storm water runoff that came from the uphill community of Three Arch Bay and was managed by TAB. She alleged that, in 2010, TAB made at least two improvements affecting the surface water runoff on Virginia Way. It "built a large drainage funnel at least 10 feet deep in the Virginia swale . . . (in the Three Arch Bay community), and installed a 24 inch diameter pipe from that funnel down to just behind 32132-32134 [Virginia Way], thereby changing the stormwater drainage characteristics of surface waters going toward Virginia Way." It also reconfigured an 8-inch underground pipe to move certain surface water runoff into the Virginia swale. Keegan further alleged that after the improvements were built, "the surface water runoff arrive[d] on Virginia Way much more quickly than before, and often arrive[d] with substantial amounts of mud, which [was] deposited on Virginia Way and sometimes on [her] property." (Boldface and underscoring omitted.)
In her cause of action for continuing nuisance, Keegan alleged that the use of her property, and her free passage on Virginia Way, were impaired from time-to-time during medium or heavy rains, and would so continue unless prevented by the court. In her cause of action for continuing trespass, Keegan asserted that "water, mud, and debris [were] deposited on [her] property . . . at random intervals, during each rainy season; [and that] this [would] continue unless prevented by [the] Court."
The allegations of Kinney's first amended complaint against TAB were substantially similar concerning the building of improvements in 2010 and the resultant increase in surface water runoff, with "substantial amounts of mud and silt, which [was] of a finer consistency than before, and which [was] deposited in [his] property . . . ." He reiterated that because of the 2010 "improvements, the surface water runoff from the Three Arch Bay community floods Virginia Way and leaves mud, silt and debris during medium and/or heavy rains . . . ." He asserted that the random flooding that occurred with medium and heavy rains constituted a continuing nuisance that would not end without court intervention.
(3) Motions for Summary Judgment
In its two motions for summary judgment, TAB asserted that it was immune from liability for nuisance under Government Code section 830.6. With respect to Keegan's complaint, TAB further asserted that, as a public entity, it could not be held liable for common law trespass.
(a) Nuisance causes of action
Government Code section 830.6 provides in pertinent part that a public entity is not liable "for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor."
"In other words, a public entity claiming design immunity must establish three elements: (1) a causal relationship between the plan or design and the [injury]; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design. [Citations.]" (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 69.)
TAB argued in its motions that all three elements were satisfied. Where the first element is concerned, TAB pointed out that Keegan and Kinney themselves alleged that the 2010 improvements caused the increased flooding on Virginia Way.
Turning to the second element, TAB acknowledged that in a prior lawsuit (Three Arch Bay Community Services District v. City of Laguna Beach (Super. Ct. Orange County, 2008, No. 01CC15035)), the court found its diversion of certain storm water into the Virginia Ravine was unreasonable. Consequently, TAB retained an engineering firm "to design a drainage system that would return drainage . . . to its historical path and further mitigate the effects of storm water drainage." The engineering firm conducted hydrology and debris production studies, and prepared plans for the project. Those plans were then submitted to Registered Professional Engineer Jene Lyle, TAB's retained storm drain engineer, for review. Lyle approved the plans and presented them for consideration at a June 25, 2009 TAB Board of Directors meeting. The Board of Directors considered the plans at that meeting and approved the solicitation of bids for the construction of the improvements. At a July 29, 2009 meeting, TAB's Board of Directors approved the award of a contract for the construction of the plans. These assertions were supported by the minutes of the June 25, 2009 and July 29, 2009 meetings, as well as the declarations of Dan Villines, a registered professional engineer and vice-president of VA Consulting, Inc., and Nicki Roknifard, Executive Director of TAB.
Continuing on, TAB cited Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, which states: "The third element of design immunity, substantial evidence of reasonableness of design, requires only substantial evidence. '[A]s long as reasonable minds can differ concerning whether a design should have been approved, then the governmental entity must be granted immunity. The statute does not require that property be perfectly designed, only that it be given a design which is reasonable under the circumstances.' [Citation.] Generally, a civil engineer's opinion regarding reasonableness is substantial evidence sufficient to satisfy this element. [Citation.] . . . That a plaintiff's expert may disagree does not create a triable issue of fact. [Citations.]" (Id. at p. 941.) As TAB duly observed, the plans were prepared by a third party engineering firm, under the auspices of a registered professional engineer, and further approved by Lyle, who was also a registered professional engineer as well as TAB's storm drain engineer.
Given the foregoing, TAB met its burden to show that it had a complete defense of design immunity. The burden then shifted to Keegan and Kinney to raise a triable issue of material fact.
In their respective oppositions, Keegan and Kinney argued that TAB was not entitled to design immunity. They asserted that while both Lyle and the engineering consultants approved the plans, there was no evidence that they were officers of TAB. However, Government Code section 830.6 does not require that an employee, officer or director approve the plans. The plan approval requirement of the statute is satisfied if the "legislative body or other body" of the public entity approved the plans.
Where that is concerned, Keegan and Kinney further asserted that TAB's Board of Directors never approved the design; it only approved soliciting construction bids for the project. Indeed, in their separate statements of undisputed fact, Keegan and Kinney cited the June 25, July 29, and August 27, 2009 minutes of the TAB Board of Directors meetings as evidence to show that no member of TAB's Board of Directors approved the plans.
The June 25, 2009 minutes show that "Lyle reviewed his monthly Storm Drain Engineer's Report with the Board of Directors." They further show that his report included a discussion of the VA Consulting plans and the scheduled implementation thereof, including bidding procedures. In addition, the minutes show that TAB's engineering committee had reviewed the plans and "recommended that the Board continue with the plans for construction of the project[]."
The July 29, 2009 minutes show that Lyle briefed the Board of Directors on the bids received for construction of the project and the board resolved to accept a bid from G.C.I., Inc. for the construction of the project and directed the execution of a construction contract. The August 27, 2009 minutes show the Board approved two additional contracts with respect to the project—a project management contract with Abacus Project Management, Inc. and a construction services contract with VA Consulting. In addition, the minutes show that, at the August 27, 2009 meeting, the board also discussed the G.C.I. construction contract and the issuance of the notice to proceed.
While we see nothing in the cited minutes which states "the Board of Directors approved the plans," it is implicit in those minutes that the Board of Directors did indeed approve of the construction of the project in accordance with the plans. That is tantamount to the approval of the plans by TAB's legislative body. Indeed, as Roknifard, the Executive Director of TAB, specifically declared: "Engineer Lyle . . . presented the Project's design plans to TAB's Board of Directors at its June 29, 2009 [sic] meeting. The Board considered the design plans and approved moving forward with the Project as designed. [¶] . . . TAB's Board of Directors also considered the design plans at Board Meetings Dated July 29, 2009 and August 27, 2009, and approved moving forward with the Project as designed."
Given that the evidence Keegan and Kinney cited showed the TAB Board of Directors approved of the construction of the project in accordance with the plans, they failed to raise a triable issue of material fact to show that TAB was not entitled to design immunity. We turn then to their apparent assertion that any design immunity was lost.
Keegan argued that "TAB had ample warning(s) from rains occurring in Nov. 2010 that its recent modifications were unreasonable, defective, and/or ineffective as to flooding and/or mud, but TAB did not take the necessary actions and/or remedies to prevent the Dec. 22, 2010 flooding and mud event, which caused damage to plaintiff(s)." She further asserted: "Rains in Nov. 2010 presented changed conditions which caused the loss of TAB's design immunity because of inaction by TAB before Dec. 2010." Kinney argued the same. In short, they argued that TAB lost any design immunity once it knew of the continued flooding. They also contended that whether TAB had lost its design immunity was a question for jury determination.
As TAB said in its reply briefs, the Supreme Court has stated that "to demonstrate loss of design immunity a plaintiff must establish three elements: (1) the plan or design has become dangerous because of a change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous condition thus created; and (3) the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings." (Cornette v. Department of Transportation, supra, 26 Cal.4th at p. 72.)
Keegan and Kinney as "plaintiffs bore the burden of production in opposition to the motion for summary judgment 'to make a prima facie showing of the existence of a triable issue of material fact' [citation] with respect to the loss of the design immunity. Since it is necessary to establish all three elements of the loss of the design immunity [citation], plaintiffs needed to make a prima facie showing of the existence of a triable issue of fact with respect to each of those elements to overcome [TAB's] motion for summary judgment." (Mirzada v. Department of Transportation (2003) 111 Cal.App.4th 802, 806-807.) On appeal, "we must determine whether plaintiffs successfully produced evidence establishing a triable issue of material fact concerning whether [TAB] lost the design immunity . . . ." (Id. at p. 807.)
Here, Keegan and Kinney asserted that the changed physical conditions were that it rained in November 2010. In support of this assertion, they offered the declaration of Kinney. Kinney declared that TAB's improvements were completed in October or November 2010 and that the first of the fall rains occurred after November 16, 2010. He opined that the surface water runoff was coming down faster in speed and in greater amounts than before. He also declared that he had a mechanical engineering degree from UC Berkeley and he described why he felt TAB's improvements were inadequate.
In other words, the evidence that Keegan and Kinney offered to support their assertion of changed physical conditions was that it had rained and that Kinney believed the 2010 improvements were inadequate to control surface water runoff. However, they cited no authority for the proposition that either rainfall, or the success of the as-built improvements, constitutes a changed condition for the purposes of loss of design immunity (just as they cite none on appeal).
"Plaintiffs failed to produce evidence establishing a triable issue of material fact concerning whether the design had become dangerous due to changed physical conditions. This defeats their arguments that the trial court erred in granting summary judgment to [TAB], even without discussion concerning whether [TAB] was on actual or constructive notice of a dangerous condition and whether there was sufficient time and means to [take corrective action]." (Mirzada v. Department of Transportation, supra, 111 Cal.App.4th at p. 810, fn. omitted.)
(b) Trespass cause of action
Turning to Keegan's trespass cause of action, we recall TAB asserted that, as a public entity, it could not be held liable for common law trespass. It cited Odello Brothers v. County of Monterey (1998) 63 Cal.App.4th 778, 792-793 in support of this proposition.
As Odello provides, "[t]he California Tort Claims Act was intended to '[abolish] all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution, e.g., inverse condemnation. In the absence of a constitutional requirement, public entities may be held liable only if a statute . . . is found declaring them to be liable. . . . [T]he practical effect of this section is to eliminate any common law governmental liability for damages arising out of torts.' [Citation.]" (Odello Brothers v. County of Monterey, supra, 63 Cal.App.4th at p. 792.) "[A]pellants' trespass cause of action is a tort claim." (Id. at p. 793.) There is no government liability for that tort. (Ibid.)
In her opposition to TAB's motion, Keegan did not argue otherwise. In short, she did not raise a triable issue of material fact to show TAB could be held liable for trespass. On appeal, Keegan again mentions her trespass cause of action, but fails to address TAB's legal authority. She has failed to meet her burden to show error.
D. Actions against Chaldus and Vivianis:
(1) Causes of Action
Kinney, in his first amended complaint, and Keegan, in her first amended complaint in Case No. 30-2010-00409507, each asserted causes of action for permanent nuisance, continuing nuisance, permanent trespass and continuing trespass against the Vivianis and the Chaldus. Kinney's causes of action were based on flooding on Virginia Way. Keegan's causes of action pertained to both flooding and parking on Virginia Way.
The Vivianis' and the Chaldus' demurrers to Kinney's causes of action for permanent nuisance and permanent trespass were sustained without leave to amend, as barred by the statute of limitations. The Vivianis' and the Chaldus' motions to strike Keegan's causes of action for permanent nuisance and permanent trespass were granted without leave to amend, also on the basis of the statute of limitations. The court granted summary adjudication in favor of the Chaldus and the Vivianis on Keegan's parking claims. The rulings on the parties' summary judgment motions disposed of the remaining causes of action for continuing nuisance and continuing trespass, in favor of the Vivianis and the Chaldus.
(2) Flooding Issues
(a) Allegations of amended complaints re flooding
In his first amended complaint, Kinney alleged that there was a flooding problem on Virginia Way, where his property was located. He further alleged that the Chaldus, on the one hand, and Charles Viviani, on the other, also owned property on Virginia Way, on the west or downhill side of the street, across from Kinney's property. Kinney said that a prior owner of the Chaldu property had built a pipe and drain box in the 1960's, thereby altering the historic drainage pattern. He claimed the land on which the Chaldu and Viviani properties are situated "is too high in elevation where it abuts Virginia Way to allow for surface water overflow toward the west because of the asphalt surface paved on the properties . . . , a single top course of 8 . . . inch concrete blocks which forms the top of a retaining wall on the properties, a planter box abutting CHALDU's attached garage, and some easily-removable dirt underneath."
Kinney further asserted "CHALDU and VIVIANI unreasonably impede and block the westward flow of that surface water runoff because: (a) easily-removable structures on their lands have been elevated by them and/or their prior owners so as to block the runoff, impeding its unrestricted flow to the west; and (b) they refuse to lower their lands so as to allow the surface overflow of water from Virginia Way to the west even though they know the surface water runoff cannot be accommodated by the existing 10 . . . inch diameter drain box and underground pipe in Virginia Way."
Kinney asserted that the obstructions on the Chaldu and Viviani properties constituted a continuing nuisance because Virginia Way would continue to flood when it rained. He further asserted that the resultant deposit of water, mud and debris on his property following a rain storm constituted a continuing trespass.
Keegan's allegations were similar. She alleged that she owned property on Virginia Way to the south of the Chaldu and Viviani properties. She claimed Charles Viviani "intentionally built up structures, dirt, asphalt and/or concrete on his property (near his garage, near his stairway, and near the drainage path) to block the path of the historic flow of storm water runoff and/or to block the current path of the flow of storm water runoff, so that the runoff creates a pond which ultimately floods Plaintiff's property on a regular basis." In short, Keegan alleged that the Chaldus and Charles Viviani had intentionally failed to take corrective action to prevent flooding and had acted unreasonably by not removing obstructions which resulted in flooding.
In addition to asserting her causes of action against Charles Viviani and the Chaldus, she also asserted them against Greg Viviani, the son of property owner Charles Viviani. It is unclear in her allegations how Greg Viviani was supposed to be blamed for flooding on Virginia Way.
(b) Flooding Arguments of Charles Viviani and Chaldus
Charles Viviani and the Chaldus filed a joint motion for summary judgment against Keegan and Kinney. They argued: (1) no structure, dirt, asphalt or concrete on the Viviani or Chaldu properties caused the flooding on Virginia Way; (2) Viviani had no duty to alter his property to redirect the course of storm water drainage; and (3) the remaining nuisance and trespass causes of action were barred by the statute of limitations. The court agreed with the first and third assertions.
In the June 19, 2013 order granting summary judgment, the court found there was no triable issue of material fact because: "1. There [was] no causal relationship between any feature of the Chaldu Property or the Viviani Property and the Virginia Way stormwater ponding and alleged flooding that underlies Plaintiffs' nuisance and trespass causes of action (i.e., the moving defendants are not contributing to the alleged flooding); and, [¶] 2. Plaintiffs have mislabeled their nuisance and trespass causes of action against moving defendants as 'continuing,' when in reality the nuisance and trespass for which Plaintiffs claim moving defendants are responsible have been present for more than a decade, are 'permanent' in nature, and thus, are barred by the statute of limitations." To review this holding, we turn to the evidence provided by Viviani and the Chaldus.
(i) Englert declaration/topographical survey
In support of their motion, Viviani and the Chaldus provided the declaration of Sean Englert, a professional land surveyor. Englert performed a boundary and topographic survey of a portion of Virginia Way, including the properties belonging to Keegan, Kinney, Viviani and the Chaldus. The survey included "approximately 700 specific elevation measurements along Virginia Way and at various points along and within the boundaries of the subject properties."
At the low contour line of Englert's survey, the 227.79-foot mark, water ponding will span the width of Virginia Way, cover 5.5 feet of Kinney's property, just reach the boundary of the Viviani property, and not reach the boundary of the Chaldu property at all. Englert declared that "even if the Chaldu Property and the Viviani Property were cut [away] from the downslope side of Virginia Way, leaving a sheer cliff along the boundary between the respective properties and Virginia Way, ponding [would] continue until the water exceed[ed] 227.79 feet. At that level, water [would] have entered onto . . . the Kinney property [already] . . . ."
At the mid-contour line, the 228-foot mark, water ponding will reach the lowest elevation of the Chaldu property, but will not enter the Chaldu property. Once the water meets the mid-contour line, the water will cover approximately 8.5 feet of Kinney's property and will crest over the asphalt berm where Keegan's property adjoins Virginia Way. Water cresting over the asphalt berm will flow down onto Keegan's property, which is built below the grade of Virginia Way.
At the same time, Englert noted that the top of the retaining wall between the Chaldu and the Viviani property was at an elevation of 227.96 feet. If water rose to this elevation, it would cover approximately 8.5 feet of Kinney's property. If the top course of the brick retaining wall were removed, the elevation of the retaining wall would be reduced to 227.34 feet, at which elevation the water would cover only about 1.5 feet of Kinney's property.
Finally, the high contour line of Englert's survey, the 229.30-foot mark, depicts the highest elevation of the Chaldu property adjoining Virginia Way. It shows that, in order for water to enter the Chaldu property, the water needs to first cover approximately 40 feet of Kinney's property. At the high contour line, the water will already be draining over the top of a retaining wall separating the Chaldu property and the Viviani property and into a swale between the Viviani garage and the Viviani property boundary with the Chaldu property. Englert declared that, "because at this elevation water will drain off the top of the retaining wall into the swale, ponding on Virginia Way should never enter the Chaldu Property along the boundary with Virginia Way."
Englert declared that the drain in the center of Virginia Way was not located on either the Chaldu or the Viviani property, but in the street. The drainage pipe ran underneath Virginia Way from the drain in the center of the street to the boundary of the Chaldu property, then underneath the Chaldu property, until it emerged into the concrete swale running between the Chaldu and Viviani properties.
Englert concluded: "[I]n order to completely relieve ponding on Virginia Way, at or about the subject properties, modifications in Virginia Way itself would be necessary and would require civil engineering analysis. [¶] . . . Similarly, removing the asphalt surface on either the Chaldu Property or the Viviani Property, or the planter box at the southeasterly corner of the Chaldu Property, or the top course of 8-inch concrete blocks forming the [retaining wall] on the properties, will not eliminate the ponding problems on Virginia Way or prevent water from entering onto the Kinney Property."
(ii) opposing evidence
In opposition, Keegan and Kinney asserted that the flooding on Virginia Way constituted a continuing nuisance that could be abated by Charles Viviani and the Chaldus. They asserted: "Flooding could be reduced and/or eliminated by lowering VIVIANI's and CHALDU's lands on the west side of Virginia Way, lowering Virginia Way itself with a shallow swale, and/or eliminating any extra water from TAB."
In support of their opposition, Keegan and Kinney provided the declarations of Kinney himself and Robert Meckauer. Kinney declared he had a mechanical engineering degree from UC Berkeley. He opined that, based on Englert's survey, "lowering VIVIANI's land . . . to the height of the nearby street would eliminate all flooding of KEEGAN; and by lowering the private street . . . along with lowering VIVIANI's land and CHALDU's land to about 226.67 feet in elevation . . . , all flooding of my land would stop . . . ."
Meckauer declared that he was a licensed building contractor. He opined, inter alia: (1) the drain in the middle of Virginia Way was inadequate to handle the runoff water flow; (2) "the current flow of runoff water from TAB is partially blocked by the height of Virginia Way on the westerly side of that street which had been modified in about the 1960s by a predecessor of CHALDU from an unknown existing configuration of the street;" (3) the current flow of the runoff water is directed "into an open concrete V-ditch swale" between the Chaldu and Viviani garages; (4) the runoff water flow was partially blocked by the height of the Chaldu and Viviani properties near their garages; (4) "without touching the garages of CHALDU and VIVIANI, the land near the garages could be modified to lower the asphalt, the dirt, and the block wall all by about 8 to 10 inches to allow westerly overflow. . . ; in addition, the planter box by CHALDU's garage (which sits on land elevated by CHALDU's predecessor) could also be removed and replaced . . . , so as to provide for the westerly overflow without changing any functionality of this area; the above would reduce the flooding of KEEGAN's and KINNEY's properties and the street . . . ."
The Chaldus and Charles Viviani filed objections to the declarations of Kinney and Meckauer. The court sustained the objections to the declarations in their entireties. Therefore, the opposition of Keegan and Kinney was unsupported by opposing evidence.
On appeal, Keegan and Kinney do not challenge this ruling, except to the extent of some vague comments under the general topic heading "Errors by the Lower Court." (Capitalization and underscoring omitted.) However, any point unsupported by cogent argument and legal authority, as well as any argument not raised under a separate topic heading, is waived. (R. A. Stuchbery & Others Syndicate 1096 v. Redland Ins. Co. (2007) 154 Cal.App.4th 796, 801-802, fn. 3 [cogent legal argument required]; accord, G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 619; Roden v. AmerisourceBergen Corp. (2007) 155 Cal.App.4th 1548, 1575-1576 [applicable legal authority required]; Conservatorship of Hume (2006) 139 Cal.App.4th 393, 395, fn. 2 [separate topic headings required]; accord, Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4.) Consequently, the ruling on the declarations of Kinney and Meckauer stands unchallenged on appeal.
Nonetheless, as Keegan and Kinney pointed out in their opposition, Englert's declaration itself could be interpreted to mean that Kinney's property might be subjected to less flooding if the retaining wall between the Chaldu property and the Viviani property were lowered. But we have no evidence to show that lowering the retaining wall was feasible. Even assuming it were feasible, it would beg the question whether the Chaldus and Viviani could be compelled, via a nuisance cause of action, to improve the drainage of Kinney's property. This brings us to the statute of limitations issue.
(iii) statute of limitations
In their motion, the Chaldus and Viviani argued that the statute of limitations had run on any action to compel them to alter their properties because of continuing trespass or continuing nuisance. "[G]enerally the principles governing the permanent or continuing nature of a trespass or nuisance are the same and the cases discuss the two causes of action without distinction. [Citations.]" (Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583, 594.)
"An action for trespass upon or injury to real property" is subject to a three-year statute of limitations. (Code Civ. Proc., § 338, subd. (b).) This includes a cause of action for nuisance. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1216.) "If a nuisance is permanent, the plaintiff ordinarily must bring one action for all past, present and future damage within three years after the permanent nuisance is created. [Citation.] If on the other hand the nuisance is continuing, every repetition of the continuing nuisance is a separate wrong, subject to a new and separate limitation period for which the plaintiff may bring successive actions for damages until the nuisance is abated even though an action based on the original wrong may be barred. [Citations.]" (KFC Western, Inc. v. Meghrig (1994) 23 Cal.App.4th 1167, 1180.)
In their motion for summary judgment, Charles Viviani and the Chaldus argued that the remaining causes of action, though labeled "continuing" nuisance and "continuing" trespass, were nonetheless of the permanent variety. That is, Keegan and Kinney contended that the configuration of solid, permanent structures on the Chaldu and Charles Viviani properties caused the drainage problem on Virginia Way and that the removal or alteration of such structures was required to alleviate the flooding problem. Consequently, Charles Viviani and the Chaldus asserted, the causes of action arose out of alleged permanent nuisances, based on structures built long ago, and those causes of action were thus barred by the statute of limitations.
The question here is whether the remaining causes of action for nuisance and trespass, despite being labeled "continuing," are in reality causes of action for redress with respect to a permanent nuisance/trespass. "'[T]he crucial test of the permanency of a trespass or nuisance is whether the trespass or nuisance can be discontinued or abated.' [Citation.]" (Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087, 1097.) A nuisance/trespass is "abatable" if it "can be remedied at a reasonable cost by reasonable means." (Id. at p. 1103.)
In their opposition, Keegan and Kinney argued that the nuisance was a continuing one because it could be abated at any time by the alteration of the Chaldu and Viviani properties. However, the fact that it might be possible to abate, in whole or in part, the alleged nuisance by removing permanent structures on the Chaldu and Viviani properties is not determinative. "'[I]t would be a rare case in which an alleged nuisance could not be abated were countervailing considerations (such as expense, time, and legitimate competing interests) disregarded. Thus, for example, in a strictly literal sense even a nuisance represented by an encroaching building or an underlying public utility pipeline might be discontinued or abated, "at any time," by tearing down the building or digging up the pipeline. But . . . , it was for just such situations that the concept of permanent nuisance, as an exception to the preexisting rule that all nuisances should be treated as abatable and thus continuing, was developed: Regardless of literal abatability, where as a practical matter either abatement or successive lawsuits would be inappropriate or unfair then the nuisance may be regarded as permanent and the plaintiff relegated to a single lawsuit, subject to a single limitation period, for all past and anticipated future harms. . . ." (Mangini v. Aerojet-General Corp., supra, 12 Cal.4th at p. 1100.)
"[I]n attempting to avoid the bar of the statute of limitations by demonstrating that the nuisance is 'continuing' (or 'temporary') rather than 'permanent,' the plaintiff must present substantial evidence that the . . . condition is one that is both subject to [abatement] . . . and that the cost of [abatement] is 'reasonable.'" (Mangini v. Aerojet-General Corp., supra, 12 Cal.4th at p. 1090.) Here, Keegan and Kinney failed to do so.
Englert, in his declaration, stated that even if the structures on the Chaldu and Viviani properties were completely removed, it would not eliminate ponding on Virginia Way. Although Englert, a surveyor, also suggested the possibility that flooding on Kinney's property might be reduced if part of the Chaldu/Viviani retaining wall were removed, he did not opine whether it was feasible to remove a portion of that wall. In response, Keegan and Kinney offered no admissible evidence to show either that it would be feasible to remove a portion of the retaining wall or that removal would be reasonable in cost. Consequently, they did not meet their burden to show abatability. Indeed, cases in which abatability of a nuisance have been shown tend to be those in which a particular use of land can be abated easily, such as when the nuisance arises from activities on the land giving rise to noise or odor concerns, rather than cases in which the nuisance arises out of the location of the defendant's structures on the land. (See, e.g., Beck Development Co. v. Southern Pacific Transportation Co., supra, 44 Cal.App.4th at p. 1218; Lyles v. State of California (2007) 153 Cal.App.4th 281, 291.)
Keegan and Kinney, in their opposition, also argued that the nuisance was a "new nuisance" because TAB had made substantial uphill changes in 2010 that changed the amount of flooding and mud on Virginia Way. That assertion pertains only to whether TAB created a new nuisance in 2010, not to whether the Chaldus and Charles Viviani did. Assuming TAB's 2010 improvements increased the amount of storm water runoff reaching Virginia Way in any given storm, they nonetheless did not change the way the improvements in and around Virginia Way handle the water received.
In short, Keegan and Kinney failed to raise a triable issue of material fact to show the alleged nuisance/trespass was of the continuing variety. They thus failed to raise a triable issue of material fact to show their causes of action were not barred by the statute of limitations.
On appeal, Keegan and Kinney claim the Chaldus and Charles Viviani own the western half of Virginia Way, to the centerline thereof, citing Civil Code sections 831 and 1112. This, they say, means that the Chaldus own the undersized drainage system in Virginia Way and have a duty to abate the nuisance. They further maintain this issue has never been tried.
Civil Code section 831 provides: "An owner of land bounded by a road or street is presumed to own to the center of the way, but the contrary may be shown." Similarly, section 1112 states: "A transfer of land, bounded by a highway, passes the title of the person whose estate is transferred to the soil of the highway in front to the center thereof, unless a different intent appears from the grant."
The Chaldus retort that Keegan and Kinney make this argument for the first time on appeal and, furthermore, that it is contrary to their own pleadings. The Chaldus correctly observe Kinney alleged in his first amended complaint that Virginia Way was owned by Three Arch Investment Company, a suspended corporation. Indeed, Kinney further alleged the Chaldus had an easement across Virginia Way, "but they [did] not own the street." In her amended complaint Keegan stated, "there is no viable owner to the private street Virginia Way because the owner of record is a suspended California corporation known as Three Arch Investment Company . . . ." Keegan and Kinney reiterated this position in their separate statement of undisputed material fact in opposition to the summary judgment motions. Consequently, they did not raise a triable issue of material fact based on the ownership of the street, and the arguments based on Civil Code sections 831 and 1112 may not be raised for the first time on appeal. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163; American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1281.)
(c) Flooding arguments of Greg Viviani
In his motion for summary judgment, Greg Viviani observed that he was not alleged to own property on Virginia Way and he was not alleged to have committed any act or omission to contribute to flooding on Virginia Way. His motion was supported by, inter alia, the declaration of his father, Charles Viviani, to the effect that Charles was the owner of the property, not Greg, and that Greg had never built or modified any structures or improvements on the property.
In her opposition to the motion for summary judgment, Keegan responded that the way Greg parked his vehicle on the street or on his father's property could obstruct the storm water overflow runoff. She claimed this was a continuing nuisance, not a permanent nuisance, because it was something that happened only periodically. Greg replied by stating, inter alia, that the court had already ordered summary adjudication in his favor with respect to parking issues and that Keegan could not, in opposition to the motion for summary judgment, attempt to raise a triable issue by asserting a completely new flooding theory based on parking.
The court granted Greg's motion. In its minute order, the court explained that Keegan's allegations against Greg were based only on his parking and nowhere did her allegations suggest that his parking was a cause of flooding. It further stated that summary adjudication had already been granted in favor of Greg with respect to the parking issues. Finally, the court observed that Keegan could not raise a triable issue of material fact by endeavoring to raise a new theory in opposition to the summary judgment motion.
On appeal, Keegan devotes her discussion under her "NUISANCE" topic heading to drainage issues allegedly caused by TAB and the property owners. Her last sentence under that topic heading states: "TAB, CHALDU, GREG and VIVIANI each cause a 'continuing' nuisance since a 'remedy' could be done inexpensively by each." Likewise, Keegan focuses her discussion under the "TRESPASS" topic heading on drainage issues allegedly caused by TAB and the property owners. Her last sentence under that topic heading states: "TAB, GREG, CHALDU and VIVIANI each cause a 'continuing' trespass since a 'remedy' could be done inexpensively by each." In neither case does she provide any discussion as to why the court's ruling with respect Greg was incorrect.
Under her topic heading "SUMMARY JUDGMENT MOTIONS," Keegan argues her "cause of action for 'nuisance' on the street versus on her own land was based on a primary right so there was no 'new theory' being alleged as it relates to interference with her 'use' of the street due to sideways parking, flooding or mud (compared to the [']use' of her own land)." She essentially repeats this argument under her topic heading "ERRORS BY THE LOWER COURT." She expounds at length upon a primary rights theory, but does not state where in her amended complaint she alleged that Greg's parking somehow caused or exacerbated flooding. She cites only expanses of the reporter's transcript of the hearing on Greg's summary judgment motion.
We did notice that at the hearing, Kinney, arguing on behalf of Keegan, stated "at the time the amended complaint was prepared, Greg Viviani was always parking on the south of the property which meant, of course, he wasn't in the drainage path." The court responded that Kinney's argument on Keegan's behalf was "completely disregarding her own binding responses to the contention interrogatories. She set[] forth the factual basis of her nuisance cause of action against Greg Viviani on three separate occasions, and never once [did] she contend that the manner in which Greg Viviani parks his vehicle causes flooding on Virginia Way and on her property."
Given that Keegan failed to allege that Greg's parking contributed to flooding, she failed to raise a triable issue of material fact on the point by simply making the assertion after the summary judgment motion was filed.
(3) Parking Issues
(a) Keegan's allegations re parking
Keegan asserted that Charles Viviani, his guests and invitees, and his son Greg, parked their vehicles perpendicularly to the flow of traffic on Virginia Way, so their vehicles extended about 12 to 15 feet into the normal flow of traffic on the street. She estimated that this blocked about 66 percent of the available space to pass through Virginia Way. She further stated it impeded her ingress and egress, as well as the delivery of her mail and the pickup of her trash. She emphasized that from 2001 forward, the vehicles in question had gotten longer in length, creating even greater access problems. In addition, Keegan alleged the Chaldus also parked their vehicles in this perpendicular fashion, with their vehicles protruding about 12 feet into the flow of traffic on Virginia Way. She alleged that the parking problems on Virginia Way constituted both a continuing nuisance and a continuing trespass.
(b) Motion for summary adjudication
The Chaldus and Charles and Greg Viviani filed a motion for summary adjudication with respect to Keegan's parking claims. They asserted, inter alia, that they were entitled to summary adjudication on the continuing nuisance cause of action, to the extent based on parking, because they had "obtained prescriptive easements to park 'perpendicular to traffic' on Virginia Way . . . ."
The court agreed, stating, "defendants have submitted evidence showing they have a prescriptive easement to park perpendicularly based on the decades-long continuous practice. The fact that defendants do not park perpendicularly every day, and that the number of cars perpendicularly parked varies, does not mean the use is not continuous and hostile."
The Chaldus and the Vivianis also argued that the prescriptive easement issue had already been decided in their favor in prior litigation between the parties. However, the court in the matter before us declined to rule on the basis of res judicata because the Chaldus and the Vivianis had failed to provide conformed copies of the ruling in the prior matter.
On appeal, Keegan insists the court erred in so concluding. Under the topic heading, "UNREASONABLE USE OF AN EASEMENT," she provides a general discussion of laws pertaining to the use of easements, to prescriptive easements, and to adverse possession. She says there is no evidence the Vivianis and the Chaldus requested permission from the other 650 or more easement holders to block the street "in a variety of unmarked areas with every-increasing-size vehicles." Keegan also says the Vivianis and the Chaldus could not have obtained a prescriptive easement because they did not give clear and unambiguous notice to all others that they were being excluded. She further asserts, inter alia, that because their misuse of the easement varied with respect to time, manner and place, it could not be hostile. In support of this discussion, Keegan provides only two record references—one to a photograph and one to a copy of a tract map.
Under the topic heading, "THERE WERE TRIABLE ISSUES OF MATERIAL FACT," Keegan itemizes six issues she believes are triable. They include whether sideways parking: "(a) interferes with 'use'; (b) adversely affects 'use' by causing flooding or physical blockage; (c) burdens other easement holders and garbage, fire, mail and delivery trucks; (d) has a minimal cost compared to parking parallel; (e) creates risk of injury . . . ; and (f) is due to negligent or willful acts." In support of her argument, Keegan cites only photographs.
Finally, under the topic heading, "KEEGAN STATED VALID CLAIMS FOR MISUSE OF THE EASEMENT," Keegan emphasizes that the photographs in the record show that Greg Viviani parks a large pickup truck on the street. Furthermore, she maintains that no one could obtain a prescriptive easement without using a fence or other permanent obstruction to exclude all others who have a right to use the street. In support of her argument, Keegan cites two pages of TAB's separate statement of material fact (an apparent mis-cite), photographs, Englert's survey of the street, the cover page of her amended complaint, and the minute order granting summary adjudication.
What Keegan fails to do is discuss the allegations of her complaint pertaining to parking, the motion for summary adjudication, the evidence in support thereof, her opposition, any evidence in support of thereof, and the reply. She completely ignores the shifting burdens set forth under Code of Civil Procedure section 437c. She does not address whether the Chaldus and the Vivianis met their burden in the first instance, and if so, how she met her burden in response. She appears to think it obvious that by pointing to a photograph of a parked truck, triable issues of material fact must necessarily abound.
As we stated at the outset, even in the summary judgment context, it is the appellant's burden to show error, with citations to the record in support of her position. (Gunn v. Mariners Church, Inc., supra, 167 Cal.App.4th at p. 212.) We decline to search the record to locate the applicable pleadings and supporting evidence to see whether the Chaldus and the Vivianis met their initial burden, and if so, whether Keegan filed an opposition and supporting evidence sufficient to raise a triable issue of material fact.
E. Memoranda of Costs:
In his notice of appeal, Kinney challenged costs orders in favor of TAB, Charles Viviani, and the Chaldus. However, he did not include those orders in the record on appeal. It is his burden, as appellant, to provide an adequate record for review. Having failed to provide copies of the costs awards he is challenging, they must be affirmed. (Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1362.)
F. Related Litigation:
In their appellants' reply brief, Keegan and Kinney state: "All defendants ignore the ongoing appeal in the case of TAB v. City of Laguna Beach, 01CC15035, filed on or about Feb. 17, 2012 by 'defendants' and appellants KEEGAN and KINNEY, which involved similar claims based on the same law and facts, and the same parties. That appeal included CCP Sec. 1060 determinations as to who owned what, and who was acting reasonably. This case should be stayed until that appeal is concluded. [Citations.] That appeal has been stopped without explanation by this Court."
Aside from the fact that we do not consider arguments raised for the first time in an appellant's reply brief (Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 108), we observe that the argument as presented is nonsensical. Keegan and Kinney have not provided a case number with respect to any February 17, 2012 appeal and we find none in our system. They also have not provided a copy of any order "stopping" the purported related appeal.
G. Vexatious Litigant Status:
Finally, Kinney asserts that he has been unfairly prejudiced because he has been designated a vexatious litigant. He emphasizes that this has no relevance because he obtained permission to file the lawsuit and he has an attorney representing him on appeal. Kinney mentions no way in which he believes his status affected the trial court's rulings. With respect to his appeal, while TAB brought a motion to dismiss, based on Kinney's vexatious litigant status, this court denied that motion. Our reasons for ruling as we do on the substance of his appeal are set forth at length above and are not based on his status as a vexatious litigant.
Kinney's request that this court take judicial notice of Senate Bill No. 731 (2011 Reg. Sess. ch. 49, § 1), which amended the vexatious litigant statutes, is denied. The information is not relevant to this appeal.
Kinney's various motions and requests to appear at oral argument and argue himself, in lieu of his then attorney of record who was located in Concord, California, are moot inasmuch as a new attorney of record substituted in and argued on his behalf at oral argument.
H. Possible Attorney Misconduct:
As previously noted, TAB and the Chaldus alerted this court to the fact that Kinney had been placed on involuntary inactive status by the State Bar of California. Consequently, we sent out an order directing Keegan to file a substitution of attorney. Keegan thereafter filed a letter informing this court that she had never authorized Kinney to file an appeal on her behalf.
Keegan appeared at oral argument, in propria persona. She represented to this court that she had never sought to file a lawsuit, but that Kinney had knocked on her door and asked her to participate in the lawsuit. She said she had told him "no" five times before she ultimately agreed. Keegan further represented that Kinney had told her she ran no risk of loss. She also indicated that Kinney had never informed her that a costs award had been entered against her and she represented that she had only learned of the costs award the day before she appeared at oral argument. In addition, Keegan reiterated that she had never authorized Kinney to file an appeal on her behalf, either in the matter before us or in the appeal of the costs award (Marian Keegan v. Three Arch Bay Community Services District, Case No. G050032).
This court is not an investigative body and is not taking evidence to determine whether Kinney engaged in misconduct in soliciting a plaintiff for a lawsuit, in failing to inform his client of the outcome of a lawsuit, or in filing an appeal without the permission of his client. However, because of the allegations to the effect that Kinney has engaged in misconduct, we are reporting the matter to the State Bar of California, pursuant to canon 3D(2) of the California Code of Judicial Ethics. The State Bar of California may wish to investigate the alleged misconduct.
III
DISPOSITION
Kinney's request for judicial notice is denied. His pending motions are moot.
The judgments and orders are affirmed. Respondent Greg Viviani shall recover his costs on appeal from Keegan. In the interests of justice, all other respondents shall recover their costs on appeal from Kinney only.
The clerk of this court is directed to provide a copy of this opinion to the State Bar of California, together with a copy of the recording of the April 24, 2015 oral argument in this matter.
MOORE, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.