VENTURA SUPERIOR-COURT FILED 8 2019 i?/Clerk Li 13/2133 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF VENTURA SCOTT HOWARD and JULI SCOTT, Case N0.: PlaintiffS, STATEMENT OF DECISION VS. DOES 1 through 51. inclusive, Defendants, AND ALL RELATED CROSS CITY OF SAN BUENAVENTURA and 3 ACTIONS. 3 This matter came on calendar regularly for trial on March 5 and March 6, 2019 before the undersigned court sitting without ajury. Mr. Max Engelhardt appeared for plaintiffs Scott Howard and Juli Scott. Mr. Scott Ditfurth and Ms. Alexandra Baca appeared for defendant, City of San Buenaventura. Testimony was taken, evidence received, and the matter was argued by counsel. Both sides have timely requested a Statement of Decision, and the court issued its Statement of Intended Decision on March 15, 2017.. Plaintiffs have timely ?led objections, and the court now issues its Statement of Decision. l- STATEMENT OF DECISION The case against the City is part of a larger case including the State of California and The California Department of Parks and Recreation. The case against the City, however, has been bifurcated for resolution of the threshold issue of inverse condemnation as alleged against the City. Plaintiffs are husband and wife who are the owners of the residence and real property located at 1267 Norwich Lane in the Pierpont area of Ventura. The area where they live is sometimes known as ?The Lanes,? and consists of twenty seven narrow streets which run perpendicular to the Paci?c Ocean, and which terminate at the beach. The lots on the various lanes are small, and the residences historically were beach cottages. Given the desirability of propelty adjacent to and near the beach, the cottages have been replaced over time with upscale two and three story permanent residences. Although proximity to the beach is regarded as desirable, The Lanes also suffer the detriments of wind and sand. I Windblown sand has been a constant problem over the years, and such sand has formed drifts which have negatively impacted retaining walls. Windblown sand is also a constant presence which accumulates on the exterior of Pierpont properties causing inconvenience to residents, and damage to the exterior of their property depending on their proximity to the beach, i.e. pr0pelty immediately adjacent to the beach is generally more impacted than property a block away. For years, and up to 1999, the City would react to complaints about blowing and accumulating sand by periodically bulldozing the accumulated sand, and pushing it away from the residences and back towards the ocean. Parenthetically, running parallel to the coast and adjacent to the properties closest to the ocean was Shore Drive, a dedicated public easement, although a thoroughfare in name only, and not one ever paved or used for vehicular or organized foot traf?c. The clearing of the sand, as described herein, was stopped in 1999, allegedly due to objections from the Coastal Commission. Without the City program to remove sand, the combination of wind and sand led to blowing sand, and the formation of 2- STATEMENT OF DECISION sand dunes. Both of these factors negatively impacted homes in The Lanes, but especially those at the end of individual streets which were beachfront properties. In 2010, 16 property owners sued the City alleging that the City?s failure to engage in sand management activity amounted to a nuisance. This case (the so? called Wilson case) resulted in a ?nding that failure to remove the sand was a iegally cognizable continuing nuisance, and ajudgment adverse to the City on this issue was entered. That judgment required the City to abate the nuisance. To conclude the litigation, the parties negotiated a settlement agreement whereby the City would engage in a one-time removal of sand on and adjacent to Shore Drive, and thereafter push accumulated sand away from the property of the plaintiffs on a semi?annual basis. Those plaintiffs who wished to avail themselves of this semi- annual sand removal would split the cost of doing this with the City (believed to be A number of the property owners elected to participate in this ongoing project. The present plaintiffs, Mr. Howard and Ms. Scott, were not party plaintiffs in the Wilson case, nor were they participants in the settlement agreement. Mr. Howard and Ms. Scott bought their prOperty in 2008. It is not a ?frontline? prOperty, but one which is the second home from the beach on Norwich Lane. Since the time of the acquisition of their home, plaintiffs have been plagued by wind blown sand from the nearby beach. It has impeded the operation of their garage door, and the entrance gate to their residence. It has infiltrated into their home through open windows. It has killed exterior grass and landscaping. In Mr. Howard?s opinion, it is something which would require disclosure to a prospective buyer, and (also in his opinion) has resulted in a 10% diminution of the value of his home. Efforts to resolve the issue with the City were not successful (and those efforts are not a factor in the Court?s decision in this case). The result has been the present action for inverse condemnation. Inverse condemnation is a cause of action which will lie against a public -3- 56-20 I STATEMENT OF DECISION entity, the elements of which are as follows: (1) plaintiff is the owner of property; (2) there is a public project or work of improvement; (3) there is damage to plaintiffs prOperty; and (4) the damage was proximately caused by the defendant public entity?s project or work of improvement. The parties agree that plaintiff were the owners of the Norwich Lane property. They disagree on the remaining three elements. The court ?nds that the maintenance agreement resulting from the Wilson litigation does amount to a public project. Counsel for the City argues that there was no recognized project, and that the City?s conduct was analogous to that in Moerman v. State, 17 Cal.App.4th 452. The court disagrees. There, the Court of Appeal found that the elk in question were not ?controlled? by the State, and that efforts to relocate themwhere they had potential access to plaintiff?s property was not enough to qualify as a public project. This case is different. The City?s sand maintenance program amounted to a direct control of the sand it was moving. As will be discussed later on, causation is an issue, but the sand maintenance agreement was a public project for the immediate bene?t of the participating homeoWners, but also having the potential of impacting nearby landowners. More speci?cally, the Court ?nds that as alleged by the Plaintiffs, the City was taking af?rmative action to further a public project. It was furthermore moving the sand for the bene?t of a portion of the public. It was a small portion of the public, but the public nonetheless. - The elements of ownership of property, public project and damage have been satis?ed. In stating this, the court gives short shrift to the defense contention that Plaintiffs property has not been damaged. Mr. Howard has testi?ed that he believes that the value of his property has been diminished by the constant presence of sand and its impact on the exterior of his property. That is good enough. The real issue in the case is that of causation. There is extensive authority for the prOposition that the public project must 4- 56-2016-00489832-CU-EI-VTA STATEMENT OF DECISION shown to have caused the damage to the Plaintiff?s property. This is not a dif?cult concept, and the appellate cases discussing this requirement are all fact driven. Implicit in analyzing this issue is that if Plaintiffs damage would have occurred without the claimed impact of defendant?s public project, there can be no recovery. Stated another way, defendant?s project must be shown to have made existing conditions worse such'that plaintiffs property was damaged. See Shae?er v. State of California, 22 Cal.App.3d 1017, and Tri?Clzem 1). Los Angeles County Flood Control, 60 Cal.App.3d 306. Although these cases were decided in the era of ?but for? causation, and causation is now a ?substantial factor? standard, the analysis and the result is no different. Here, before the Wilson settlement, wind blew sand such that it created drifts against the retaining walls. There is only the testimony of Mr. Howard as to the extent of sand intrusion on the properties further down along Norwich. He testi?ed that there was no sand intrusion in his rear yard when he purchased the property in 2008, but that there were multiple complaints to the City since 2009. The Wilson settlement and its implementation did not occur until 2012. A reasonable inference from this is that there was sand intrusion before the 2012 settlement agreement. The Wilson settlement is executed in 2012 and all the sand is removed adjacent to Shore Drive. There is a year of no sand removal, and then comes the semi?annual sand removals adjacent to the properties of the opt?in homeowners. The intrusion onto Plaintiffs? property returns. From this, Plaintiffs argue that the ?hopscotching? created by the selective sand removal caused the post 2012 intrusion of sand onto their property. That is the Plaintiffs? evidence regarding causation. Defendant offers the testimony of Philip Shaller, a geologist and engineering geologist. His quali?cations provide a sufficient foundation for him to give opinion testimony, and he has done that. After explaining ?fetching? as the concept by which wind causes the movement of sand, he concludes that The City?s -5- STATEMENT OF DECISION semi?annual removal of sand was not a factor in causing sand intrusion onto Plaintiffs? property. The culprit, in his Opinion, is the prevailing winds that cause the movement of sand. The court finds this to be a persuasive explanation, and ?nds that Mr. Shaller is a persuasive witness. There is no competing testimony or evidence to suggest that the City?s project has either caused the intrusion of sand, or accelerated its progress. As the owner of property, Mr. Howard is entitled to offer an explanation as to the value of his property. He is not, however, quali?ed to offer an opinion as to how the City?s project caused the movement of sand onto his property. In sum, the court concludes that Plaintiffs have not proven the necessary element of causation to entitle them to a recovery. This is not a decision easily reached. The Plaintiffs have sustained damage through no fault of their own. Their testimony about their reluctance to sue the City, and the reasons for this reluctance, is credible. The court is nonetheless persuaded that the necessary causal link is not proven. Judgment is in favor of Defendant City of San Buenaventura. Defendant is the prevailing party, and is entitled to its statutory costs of suit. Counsel for defendant is directed to prepare and to submit a form of SH Judge of the rior Court Judgment. Dated: April 1'5, 2019 56-2016-00489832-CU-EI-VTA STATEMENT OF DECISION