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SUPERIOR COURT OF CALIFORNIA,

COUNTY OF VENTURA
SIMI VALLEY
MINUTE ORDER
DATE: 05/25/2011 TIME: 05:05:00 PM DEPT: S5
Judicial Officer Presiding: Barbara A. Lane
CLERK: Sandy McCarty
REPORTER/ERM:

CASE NO: 56-2007-00308930-CU-PO-VTA


CASE TITLE: Wilson vs. City of San Buenaventura
CASE CATEGORY: Civil - Unlimited CASE TYPE: PI/PD/WD - Other

EVENT TYPE: Ruling on Submitted Matter

APPEARANCES

The Court, having previously taken the Request for Injunctive Relief under submission, now rules as
follows:
DECISION AFTER A COURT TRIAL (ON INJUNCTIVE RELIEF ISSUES)
Ronald Wilson v. City of San Buenaventura (case no. 56-2007-00308930) was tried to a jury on 4/7/09
though 5/6/09 and resulted in a jury's returning a damages verdict for Mr. Wilson on his claim of
nuisance. Mr. Wilson was represented by Kate M. Neiswender. The City was represented by Rick
Hardin and Lora D. Brown of Coffin & Hardin.
The present Ventura Citizens for a Safer Beach v. City of San Buenaventura injunctive relief case (case
no. 56-2007-00308930) was tried to the Court, concurrently with the jury's hearing the Ronald Wilson
case and thereafter, during the week of 5/13/09. By stipulation, a decision on the injunctive relief claims
was deferred while counsel engaged in settlement efforts. When those efforts (to establish a special
assessment district with the City) could not be successfully concluded, additional testimony and
arguments were presented by the plaintiffs and the City of San Buenaventura ("City") to the same trial
judge on 12/3/10 and 3/7/11.
In this action for injunctive relief, plaintiffs Ronald Wilson, B.J. Hansen, Myron and Stephanie Roth,
Elizabeth Bauer and William Puchlevic are represented by Kate Neiswender; and plaintiffs Ventura
Citizens for a Safer Beach ("VCSB"), Rosemary Icardo, West Coast Winery, Inc. (Gloria Lemer) and Dan
Scully are represented by James Q. McDermott. The defendant City of San Buenaventura is
represented in this phase of the lawsuit by Assistant Ventura City Attorney Andy H. Viets.
The Court makes findings of fact and draws conclusions of law as follows. To the extent that these

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determinations differ from a party's position, that is the result of the Court's evaluation of credibility and
relevance, burden of proof considerations and weighing of the evidence, both documentary and
testimonial.

The VCSB plaintiffs are Pierpont Beach residents. The Pierpont Beach area that adjoins the plaintiffs'
residences is zoned as a public park; and has been used for that purpose for more than 60 years. The
Pierpont Bay subdivision includes three streets: Seaward Avenue, Pierpont Boulevard and Shore Drive.
Seaward Avenue intersects the other two streets and runs perpendicular to the ocean, as do 27 small,
residential streets with "lane ends," that dead-end into it (Exh. 78, the Ventura County Assessor's Map
for the Pierpont Bay Subdivision). The northernmost lane is San Pedro Street and Marina Park demarks
the border of this Pierpont Beach area to the south.

The VCSB plaintiffs complain that massive sand drift problems arose after 1999, when the City of San
Buenaventura ceased maintaining the Shore Drive area it owns in front of their homes. They contend
that the sand has massed into huge mounds that tower over their homes, has cracked their retaining
walls and foundations, and denies them the use and enjoyment of their property. The VCSB plaintiffs
also complain that sand has overcome the walls at the end of the Pierpont lane ends, eclipsing cement
stairs which lead to the beach with sand and making access difficult.
The City Owns Shore Drive, A Public Street Covered by Beach Sand
The Pierpont Bay Subdivision was established in 1926. Over the decades, many man-made
modifications were made in the area. The Ventura pier was built in 1929. The Army Corps of Engineers
dredged and widened the beach and constructed the Ventura harbor. In the 1960's, large rock groins
were installed offshore and jetties were built. In the 1970's, the City built retaining walls and installed
underground utilities, pump stations and drains on its Shore Drive property (Exhs. 57 and 58).
Shore Drive runs the length of the beach and is situated between the State-owned beach on the ocean
side and the plaintiffs' beachfront properties and the lane ends to the east. Testimony from Ronald
Wilson, Rosemary Icardo, and Mike Biedebach established that, to this day, Shore Drive is shown on
maps as a 40-foot wide street paralleling the Pacific Ocean coast for about a mile.
The evidence established that all of the streets within the Pierpont subdivision, including Shore Drive,
were formally dedicated to the County of Ventura at the time the Pierpont subdivision was approved and
the County accepted the dedication. The streets including Shore Drive were all accepted into the City of
San Buenaventura's street system at the time of annexation. Shore Drive is intersected by lanes; and
had "courts" or alleyways between the houses for pedestrian traffic. In 1973, by a Resolution of the City
Council, the City of San Buenaventura abandoned the courts, which reverted to the adjoining fee
owners. The City has never, however, abandoned the lanes or Shore Drive.
The testimony of lifelong residents at Pierpont Beach, including plaintiff Elizabeth Bauer and witnesses
Larry Pearson and Melvyn Henkin, was that the asphalt of Shore Drive has eroded away over the years
and is now covered with large amounts of beach sand. Mr. Pearson's family photographs show the
Pierpont area in the 1930s and the erosion of the Shore Drive asphalt after severe storms in 1936 and
1937. (Exhs. 5a and 12.) Based on this, the City maintained throughout the Wilson trial that it has no
responsibility to maintain Shore Drive because it has become "a beach," not a street.
The evidence refuted that argument. After the asphalt broke away, the City continued to control and
maintain Shore Drive as a pedestrian right-of-way. E-mails of City employee Frank Maxim came into

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evidence, which characterized Shore Drive as a "street" that was closed to vehicular traffic by action of
the City Council (Exhs. 66 and 67). A letter written by the City's longtime (since 1983) Director of Public
Works, Ronald Caulkins, to the Coastal Commission discussed the City's need to maintain Shore Drive
for public access to the beach (Exh. 63). Both Mr. Caulkins and Jack Ainsworth of the Coastal
Commission acknowledged in their testimony at the 4/09 Wilson trial that the City's own "Local Coastal
Plan" designated Shore Drive as a pedestrian accessway.
The City sent notices to the adjoining neighbors of its continuing supervision of Shore Drive. For
example, local resident Staci Kaye-Carr testified at the (4/09) Wilson trial that she received a 9/7/99
letter from the City, announcing its project to maintain the "public right-of-way of Shore Drive at the
terminus of the lanes" (Exh. 75).

The evidence also showed that the City had substantial involvement in building improvements on and
under Shore Drive. The testimony of Larry Pearson, who played in the Shore Drive area every day as a
boy – and still lives at Pierpont -- and of Ronald Wilson, established that, over the years, they saw City of
San Buenaventura workers construct utility and storm drain improvements underneath Shore Drive; and
build the retaining walls and pump stations near the lane ends.

The City's Public Works Director Mr. Caulkins admitted under cross-examination at the Wilson trial that
pump stations were installed on Shore Drive, including on Weymouth Lane (photographic Exh. 80). Mr.
Caulkins further admitted that the pump stations on Shore Drive are shown on the City's as-built
drawings (e.g.at the end of Dover Lane, Exh. 57); and that the City's as-built drawings document the
retaining walls it had built at the ends of each lane (see e.g. Exh. 68).
Once accepted by a municipality, a street becomes a public improvement and part of its system of public
works. (See Gov. Code §66477.1; and McKinney v. Ruderman (1962) 203 Cal. App.2d 109). Where, as
here, a street has been accepted into that system, improved by the installation of utilities and drainage,
and maintained, the municipality may be held legally responsible where the city's acts or failure to act
with respect to its property interferes with the adjoining property owners' use and enjoyment of their land.
(See Sheffet v. County of Los Angeles (1970) 3 Cal.App.3d 720).
The Actions/Authority of the Coastal Commission are Irrelevant to the Inquiry Here

The City blames the California Coastal Commission for the Pierpont Beach residents' sand woes. The
City's attorney calls the Coastal Commission the "elephant in the room"; and points out that the Coastal
Commission, created by voter initiative in 1972, effectively controls the issuance of permits for sand
maintenance; and is beyond the City's or any individual's control.
The City contends that it was the Coastal Commission which appealed (and thus derailed) the sand
clean-up permits the City issued to itself in 1999 for maintenance of the subject beach area; and it was
the Coastal Commission that threatened to appeal the limited sand removal permits the City contends it
assisted several Pierpont plaintiffs in securing, including Ms. Icardo and the Roths. The City also points
to the fact that the high expense of sand removal is the result of Coastal Commission directives to
protect the sand ecosystem and an endangered tailless lizard, including retaining a biologist and paying
for environmental studies to be done.
The plaintiffs respond that when they have sought permits from the City, it has taken months to secure
them; the permits only allow the homeowners to remove the sand by hand (no mechanized equipment),
and with many of the plaintiffs in their late 70's and 80's, they must hire work crews to do it; and the

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permits limit the sand removal to a distance of only two and a half feet from the VCSB plaintiffs' retaining
walls.
The difficulties with the Coastal Commission and the City's claims of "good faith" with respect to permit
applications notwithstanding, the plaintiff members of "Ventura Citizens for a Safer Beach" are correct
that it is irrelevant to the injunctive relief they seek. The VCSB plaintiffs' lawsuit is founded on nuisance.
Where a landowner's control of its property creates a nuisance as to its neighbor, good intentions are no
defense (Sturges v. Charles L. Harney Inc. (1958) 165 Cal.App.2d 306, 318).
Public Entities Are Subject to Liability for Nuisance

Civil Code §3479 provides in relevant part: "Anything which is... an obstruction to the free use of
property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the
free passage or use, in the customary manner of ...any public park...[or] street is a nuisance."
A public entity may be subject to liability for creating and maintaining a nuisance under Civil Code §3479
(acts constituting nuisance), § 3480 (public nuisance) and §3481 (private nuisance) "even though
engaged in a governmental activity." (See Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 932.)
Thus, private individuals are entitled to seek injunctive relief against a municipality to abate a nuisance.
(See Kempton v. City of Los Angeles (2008) 165 Cal. App. 4th 1344, at 1349) [upholding an injunction in
favor of homeowners that required the city to take action to remove fences that another homeowner had
installed on the city's right-of-way].
The City's Inaction After1999 Created A Nuisance on the Plaintiffs' Properties
With the exception of plaintiff Ronald Wilson, none of the VCSB plaintiffs timely complied with the
government tort claims statute, so their claims are limited to injunctive relief. As to plaintiff Mr. Wilson,
he is entitled to have the trial court consider his claim to injunctive relief even though the jury awarded
him damages against the City at the 2009 trial, since CCP §731 allows a plaintiff both to enjoin a
nuisance and recover damages. (See Posey v. Leavitt (1991) 229 Cal.App.3d 1236.)
In Ronald Wilson's 2009 damages case, the jury found that the City of San Buenaventura was liable for
creating a nuisance with respect to the sand. In its 5/6/09 Special Verdict answers, the jury specifically
found that the City, by acting or failing to act, created a condition that interfered with Mr. Wilson's use
and enjoyment of his Norwich Lane property; that he did not consent to that conduct; that an ordinary
person would have been reasonably annoyed or disturbed by such conduct; that the City's conduct was
a substantial factor in causing harm to Mr. Wilson; and that the seriousness of that harm outweighed any
public benefit from the City's conduct (Jury Verdict answers 1-6).
The Court, sitting in equity, reaches the same judgment in this injunctive relief action as did the jury at
the Wilson damages trial; and finds that all of the elements establishing a nuisance have been proven by
each of the present plaintiffs. (See CACI Jury Instruction 2021). The Court finds that, by acting or failing
to act, the City of San Buenaventura created a condition on Shore Drive that obstructed and interfered
with the plaintiffs' free use and enjoyment of their properties.
The City failed to prove its denial that it "created" the sand nuisance. Local resident Mr. Henkin testified
that, in l991, he saw City workers, using bulldozers, artificially create the sand dunes on Shore Drive
(photographic Exh. 11B.) Ronald Caulkins, a civil engineer and the City's Director of Public Works,
admitted on Evidence Code §776 examination at the Wilson trial (on 4/28/09) that he signed the City's

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1/3/99 letter to the Pierpont homeowners, which described Shore Drive "as a pedestrian access path
along the beachfront" and acknowledged that "[t]he existing dunes were established by a previous sand
moving project." (Exhs. 152 and 83). The letter gave notice that the City planned to use "equipment to
move sand away from the street ends." (Ibid.)

The Court finds that the City created a nuisance on the plaintiffs' properties adjoining Shore Drive by its
lack of sand maintenance after 1999. A number of witnesses testified that in the 1970's, 1980's and
1990's, they saw the City use bulldozers and mechanized equipment to periodically maintain the Shore
Drive portion of the beach by grading it, removing the excess sand that had built up, and transporting the
sand to Marina Park (lying immediately to the south). Public Works Director Mr. Caulkins testified that
the last permit the City issued to itself, in 1999, to do the sand clearance work, called for its use of
mechanized equipment on the beach. (Exh. 151).
Identifying a photograph taken of the beach area adjacent to her Brockton Lane home in 8/99, plaintiff
Gloria Lemer pointed out that it showed the beach as fairly flat. She testified that that was how the
beach had been maintained since 1957, when she lived there as a child (photographic Exh. 4A).

Staci Kaye-Carr testified that, as of 4/09, she had lived at her Weymouth Lane residence (shown in
photographic Exh. 80) for 10-12 years. Prior to that, beginning in 1973, she had visited the house, then
owned by her father-in-law, 8 to 10 times a year. She testified that, during that time, she saw
mechanized earthmoving equipment on the beach "many times." She regularly saw the workers pull
sand away from the retaining walls, remove storm debris and groom the beach over Shore Drive, which
she described as the first 40 feet of the beach.
Gloria Lemer identified a card her family received from the City Streets Superintendent Lyle Swaney in
1997, wherein the City informed the adjoining homeowners that it planned to undertake the "regular
maintenance" of the Shore Drive area (Exh 37). Ms. Lemer saw that work being done until 1999.
Thereafter, she testified she has seen a greatly increased buildup of sand near her property.
Plaintiff Ronald Wilson described the area in front of his house on Norwich Lane as basically flat in 1968
when he moved there. He testified that winter storms would cause the sand to build up about every five
years. When that occurred during the years from 1968 to 1999, he observed the City's skip-loaders
maintaining the beach and knocking down the sand dunes. When the City's maintenance ceased after
1999, he testified that there was an increasing buildup of sand at his property. By 2006, it was so
substantial that he observed cracking in his retaining wall.
After the fall of 1999, when the Coastal Commission appealed the City's permit, Public Works Director
Mr. Caulkins testified that the City continued to maintain its pump stations and remove debris from the
drains on its Shore Drive "right-of-way," but admitted that the City ceased all sand removal and
maintenance on the Shore Drive strip adjoining the plaintiffs' properties.
Plaintiffs Proved a Sand Nuisance That is Damaging Their Walls and Homes

The plaintiffs proved that they have been harmed, without their consent, by the City's failure to maintain
and control the sand buildup on its Shore Drive property; and that the City's inaction after 1999 has been
a substantial factor in causing serious annoyance and disturbance to each plaintiff. They further proved
that the impact of the sand on their property is such that it would cause ordinary people to be reasonably
annoyed or disturbed by it.

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When Mr. Wilson bought his property (in 1969), he obtained permits from the City for a 40-inch masonry
wall, with four-by-four posts and a cap on top that supported plate glass. After he observed more
cracking of his retaining wall from the sand buildup (shown in a 2007 photograph, Exh. 6A), Mr. Wilson
applied to the City, on 2/17/07, for a permit to remove the sand from against his wall. The process is a
slow one and his permit was not issued by the City until 8/15/07.
The City's Assistant Public Works Director Rick Raives acknowledged in his testimony that, even with a
permit, the homeowners are only allowed to move the sand a limited distance from their walls; and the
permit requires sand removal by-hand (no mechanized equipment). The City permit Mr. Wilson obtained
"allow(ed) for sand removal up to a maximum of 2.5 feet, cut out from the western (ocean-side) property
line, down to the base of the wall" (Exh 39). (In contrast, the permit the City issued to itself for sand
maintenance allowed it to use skip-loaders to clear the sand 15 feet from the lane ends.)
Mr. Wilson testified that he applied for the permit in 2007, as a last resort, when the sand was up to "at
least" 8 feet and was spilling over his retaining wall. Later that year, the weight of the sand shattered the
tempered glass on the top of his wall into shards and points (photographic Exh. 50). Ray Steinberg, the
City's expert at the 4/09 trial, agreed that Mr. Wilson's photographs, taken on 9/11/07 (Exh. 195) and in
2/08 (Exh. 30), showed cracks in Wilson's masonry wall and spalling at the top of the wall. Mr. Steinberg
could not determine the cause, as the wall had been repaired by the time he did his inspection. Plaintiffs'
consultant Phil Sherman did examine Mr. Wilson's wall at that time and testified that the "spalling"
damage was caused by the sand buildup (photographic Exh. 6D).
Plaintiff Ms. Lemer testified that her family built a brick wall on the beach side of her Brockton Lane
house in 1985. Later, they had a chain link fence installed over the brick, which raised the wall to 8 feet.
Ms. Lemer's testimony and photographs showed that after the City ceased leveling and removing the
sand, it has increasingly come over her fence from the sand dunes in front of her property. By the time
of the 4/09 Wilson trial, she testified that the sand dunes had risen to a height of 9-10 feet along most of
her property line and, at one point, to 12 feet (Exh. 4C, photo, taken in 2008).
Plaintiff B.J. Hanson testified that, as of the year 2000, the beach was "pretty flat" outside her Bedford
Court home. By 4/09, however, Ms. Hanson observed that the sand was overtopping her 6-foot wall.
Plaintiff Elizabeth Bauer testified that, in her 40 years living at her Woodstock Lane property, the sand
dunes have never been as high. She presented photographs at the 4/09 Wilson trial showing the sand
pile-up in 2009, compared to 2002 (Exh.s 2A and 2D). Starting in about 2003, she has observed
increasing mounds of wet sand, which is now causing damage to the support beams of her deck and
steps to the beach.
Plaintiff Myron Roth and his wife Stephanie live on Winthrop Lane. Mr. Roth testified that the sand has
overtopped their 8-foot high wall. The weight of the sand has caused the buckling of his garage
foundation. Plaintiff Dan Skully, also a long-time resident of Winthrop Lane, gave similar testimony of
sand buildup at his property.

Mike Biedebach, who lived on Bedford and Waterbury Lanes for years, saw equipment and bulldozers
moving sand away from the lane ends and uniformly flattening the Shore Drive pathway, from 1972 to
1989, leaving only little, scattered "pocket" dunes (shown by old photographs Exhs. 7A, 7B and 7C), but
no sand pile-up. The beach was readily accessible walking from the end of the lanes to the ocean. He
testified that after the City's beach maintenance stopped, the sand buildup against the residences, lane
ends and stairs has gotten worse and worse. At the 4/09 Wilson trial, Mr. Biedebach described the sand

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dune in front of his former Waterbury Lane house as "a mountain."

Plaintiff Rosemary Icardo purchased her home on Waterbury Lane in 1992. Before her purchase, she
personally inspected it and had it professionally inspected, and there were no cracks. Her property has
a long, approximately 95-foot beachfront wall than ranges from a height of 6 feet high near the lane end,
to 5 and 4 feet at other areas. After several years of the City's non-maintenance of Shore Drive, by
2003-2004, she had sand mounds continuously "increasing in height," pressing against her wall; and
she started to observe cracks in her wall, her walkway made of concrete and brick pavers, and in the
floor inside her front door. Ms. Icardo testified that by the time of the April 2009 Wilson trial, the sand
levels in front of her home had increased to the point where the sand towered up to the second story of
her home.

The Sand Buildup Has Created Unsafe Conditions At The Ventura Beach
The VCSB plaintiffs presented substantial evidence that, after the City ceased its maintenance of Shore
Drive and the beach stairways, unsafe conditions now exist on the stairs and on the dunes looming over
the properties of the adjoining owners.

Murray Robertson, a VCSB member and longtime photographer and chronicler of Pierpont Beach,
identified photographs he has taken of the area. Photographs he took in 1993 showed that the sand was
level with the beachfront properties (e.g. photographic Exh. 8). In stark contrast, the photographs Mr.
Robertson took of the homeowners' walls and of the stairwells, in April 2010, show them to be
overwhelmed by sand (see e.g. photographic Exhs. 9 through 17). The 2010 Robertson photographs
show the stairs engulfed in, and partially buried under sand and depict children on sleds, sliding down
the stairwells to the beach. Both Mr. Robertson and Ms. Icardo testified that they have lost their footing
while decending the (Shore Drive) stairs, due to the sand buildup.
In her testimony at the injunction trial in 2011, Ms. Lemer stated that the sand outside her windows is
now piled 14-16 feet above ground. Since her wall is now hidden by sand, she expressed the worry that
beach walkers would walk off the sand precipice and fall onto her hardscape walkway below. Mr. Wilson
stated that he has had to put up caution tape so that beachgoers will not fall off the sand dune into his
property. Similarly, Rosemary Icardo testified that she has had to shoo away kids boogey-boarding on
the dunes looming over her property, for fear that they will slide off onto the cement on her property
below.
Plaintiff William Puchlevic lives at the Zephyr Court condominiums. He testified that the fire escape door
that leads to the beach is now completely blocked, on the beach side, by sand. Plaintiffs' expert Phil
Sherman testified that the wet sand topping over the Zephyr Condominiums' wall has the same weight
as cement.
Another Zephyr Court resident, Frank Stitt, testified that he purchased his first floor condominium in
1989 and used to see City workers using mechanized equipment to maintain the adjoining (Shore Drive)
portion of the beach. When that stopped, he saw that the mounds of sand steadily increased. By the
time of the 4/09 Wilson trial, Mr. Stitt observed that the sand load against the condominium's beachfront
wall had made the iron gate to the beach unmoveable and unpassable. Mr. Stitt testified that he wrote
the City Fire Department, out of concern that the sand was blocking the condominiums' sole rear fire
exit, but the City never responded.
Substantial and Unreasonable Interference with Plaintiffs' Property Enjoyment Was Proven

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The Court finds and concludes that the VCSB plaintiffs proved that the City's lack of maintenance of
Shore Drive since 1999 has created a sand nuisance that has seriously and substantially impacted their
residences, the lane ends, and the public access stairways to the beach. The plaintiffs have
demonstrated by compelling evidence that, as a result of the non-action by the City, after 1999, they
have suffered injury to their individual properties that is substantial, unreasonable and continuing. (See
People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103- 1105; Pfleger v. Superior Court (1985) 172
Cal.App.3d 421, 430-431; and Vedder v. County of Imperial (1974) 36 Cal.App.3d 654, 661.)
The Court finds that the seriousness of harm to the VCSB plaintiffs as well as to the beach-going public
who access the beach from the lane ends and the stairs leading to the beach outweighs any benefit the
City may claim for not maintaining its Shore Drive right-of-way. (See Cupola v. Bay Area Rapid Transit
(N.D. Cal., 1997) 5 F.Supp.2d 1078; and Caribbean Marine Services Inc. v. Baldridge (9th Cir. 1988) 844
F.2d 668, 674.)
No Statutory Authority Bars Injunctive Relief for a Nuisance Caused by the City's Non-Maintenance

The City contends that any nuisance that is found to exist from its lack of maintenance of Shore Drive is
barred because of the discretion accorded to public entities by sections of the Streets and Highways
Code. It relies on Streets & Highways Code §27, which provides that the location, scope and character
of street repair work is discretionary with "the authorities charged with the maintenance thereof, taking
into consideration traffic requirements and moneys available therefor." The City also cites Gov. Code
§40401 (giving discretion to legislative bodies to expend funds to maintain parks and streets); and
Ventura Municipal Code §355.020 (regarding the duties of the Public Works Department to maintain and
clean streets, alleys and beaches).
The City's primary authority for the proposition that any order by this Court with respect to sand removal
or beach maintenance will impair the City's legislative prerogative and violate the separation of powers
doctrine is Friends of H Street v. City of Sacramento (1993) 20 Cal.App.4th 152.
The Court of Appeal in Friends of H Street determined that the plaintiffs' nuisance claims were barred
because the action of the city was expressly authorized by statutes governing the maintenance and
operation of public streets. (Id. 20 Cal. App. 4th at 161-162). [Emphasis added.] In that case, the
plaintiffs resided next to a busy thoroughfare in Sacramento. They claimed that pollution, congestion
and noise caused by street traffic constituted a nuisance that interfered with their comfortable enjoyment
of life (Civil Code §3479).
In its decision in Friends of H Street, the Court of Appeal observed that if the injunctive relief sought by
the plaintiffs was granted, it would "effectively compel the City to modify H Street's 'through street'
designation and reduce traffic volume [which]... necessarily involves re-routing traffic from H Street to
other streets or highways. [The Court of Appeal] conclude[d] the [trial] court properly determined the
city's decisions regarding the routing of traffic are a legislative function beyond [the courts'] power to
control." (Id. At 164-165). (See also Dina v. People ex rel. dept. of Transportation (2007) 151
Cal.App.4th 1029, 1052-1053.)
Recognizing that such conditions on highways are a reality of modern life and necessarily are disturbing
to all persons who live in close proximity to freeways, the California Legislature enacted Civil Code
§3482, which provides immunity from liability arising from certain governmental activities, including
road-building. Under Civil Code §3482, "[n]othing which is done or maintained under the express

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authority of a statute can be deemed a nuisance."

The VCSB plaintiffs are correct that the Streets and Highways Code provisions are not applicable here.
There can be no express statutory authority for street maintenance where it is undisputed that Shore
Drive is a street in origin only and where, for decades, it has had no use as a street. The City's evidence
and citation to authority fails to show that there is any express statute that would govern its activities with
respect to the Shore Drive pedestrian right-of-way in the case at bar. There is nothing in the Streets
and Highways Code provisions relied upon by the City which would absolve a public entity of
responsibility for causing a nuisance on adjoining properties.
The City Did Not Prove Its Immunity Defenses

The jury in the Ronald Wilson v. City of San Buenaventura damages trial ruled against the City on its
three affirmative defenses: 1) that any harm the plaintiffs have sustained was caused by "a natural
condition of unimproved public property"; 2) its "discretionary" immunity defense; and 3) its "permit
immunity" defenses (Jury Verdict questions and answers 11, 12, 13 and 14). On each of these
defenses, the City had the burden of proof.

Under CCP §831.25(c) the City claims that it is immune from liability since the cause of the VCSB
plaintiffs' property damage was "land failure," caused by "creep...and and other gradual or rapid
movement of land." On the face of this statute, the "natural condition" statutory immunity does not apply.
It applies to "unimproved public property" only and requires the "land failure [to have been] caused by a
natural condition of the unimproved public property" (ibid. §831.25(a).) [Emphasis added]. Here, it is
clear that the City did improve Shore Drive, including after the asphalt eroded away. Over the years,
City workers continued to improve Shore Drive, by undergrounding the utilities and by installing drains,
manholes and pump stations.
To the extent that the City also relies on Gov. Code §40401 (which gives discretion to the legislative
body to expend funds to maintain parks and streets) and Ventura Municipal Code §355.020 (which
addresses the duties of Public Works in maintaining and cleaning streets), these enactments are not
relevant here. The VCSB plaintiffs have not asked the Court to direct the budget or expenditures of the
City. They have sought injunctive relief from the Court, to require the City to maintain its property so as
not to cause a nuisance on the plaintiffs' adjoining property.

The City also claims discretionary immunity under Gov. Code §§ 820.2 (public entity) and 815.2 (public
employees). Again, the City relies on a provision in Streets & Highways Code §27 that "[t]he degree and
type of maintenance for each highway, or portion thereof, shall be determined in the discretion of the
authorities charged with the maintenance thereof." Here, it becomes significant that -- as the City
maintained throughout the trial -- Shore Drive has evolved into more of a beach than a street. It is
therefore not a "degree and type of maintenance" case. The Wilson jury so found in answering "no" to
the verdict form question: "Did the City prove its 'discretionary' immunity defense?" (Verdict question 12.)
This Court makes the same finding.

The case at bar is not akin to a pothole repair case. The facts of the VCSB plaintiffs' case are similar to
those asserted in Los Angeles Brick & Clay Products Co. v. City of Los Angeles (1958) 60 Cal.App.2d
478, where the appellate court upheld an injunction to abate a nuisance created by the city's discharge
of storm water onto plaintiff's land. The Court of Appeal approved the trial court's order directing the city
to remove certain flood control devices and reroute its drainage systems.

DATE: 05/25/2011 MINUTE ORDER Page 9


DEPT: S5 Calendar No.
CASE TITLE: Wilson vs. City of San Buenaventura CASE NO: 56-2007-00308930-CU-PO-VTA

Since this Court, sitting in equity on the injunctive relief claims, agrees with the jury's assessment of the
City's governmental immunity defenses, there is no Hoopes issue here. (Hoopes v. Dolan (2008) 168
Cal.App.4th 146 [holding that where legal issues are tried first, a trial judge cannot ignore a jury's verdict
and grant equitable relief inconsistent with the jury's findings.]

Plaintiffs Are Entitled to Injunctive Relief Against the City


The Court finds and concludes that the manner in which the City has maintained and failed to maintain
its Shore Drive right-of-way has deprived the plaintiff residents on Pierpont Beach and at the lane ends
of the use and enjoyment of portions of their property. Applying the Christensen test, the Court finds that
the plaintiffs are suffering and will continue to suffer irreparable harm from the sand encroachment,
unless an injunction is granted.
Weighing the relative hardships, the Court finds that: the VCSB plaintiffs share no fault or responsibility
for the sand buildup against their properties; the City has the responsibility to maintain the Shore Drive
right-of-way so as not to cause a nuisance from the buildup of sand; and the plaintiffs have shown that
they have suffered loss of enjoyment and use of their property and irreparable injury from the sand
buildup against their walls, patios and foundations, which has continued and increased since 2003.
(See Christensen v. Tucker (1952) 114 Cal.App.2d 554, 562-563.)
As the VCSB plaintiffs point out, the City of San Buenaventura can escape responsibility for the
maintenance of Shore Drive as a city street by merely abandoning it. (See Zacks Inc. v. City of Sausalito
(2008) 165 CA4th 1163 – where, similarly, the street had not been used for many years). California
provides a statutory mechanism for abandonment of any public street. (See County of San Diego v. Cal.
Water & Tel. Co. (1947) 30 Cal.2d 817, 823; and Clay v. City of Los Angeles (1971) 21 Cal. App. 3d 577,
587.)
It is clear, however, that the City of San Buenaventura has no interest in abandoning Shore Drive. This
very sandy beach area is a major recreational venue and tourist attraction for the City. The City's
Director of Public Works Mr. Caulkins admitted at the Wilson trial, in the spring of 2009, that if the City
were to abandon Shore Drive, its ownership and control would pass to the plaintiffs, as the abutting
property owners, causing the City to lose its pubic beach.

Under Civil Code § 3479, the plaintiffs have established that an injunction is required to abate the
nuisance. The remedy is set forth in CCP §731, providing that anyone whose property is injuriously
affected is entitled to an order abating it. While this Court recognizes that mandatory injunctions are
sparsely granted, such an order of abatement is appropriate here, requiring the City to take action to
level off and remove the excess sand.
A mandatory injunction under circumstances comparable to those presented by the VCSB plaintiffs here
was approved in Sheffet v. County of Los Angeles (1970) 3 Cal.App.3d 720. In Sheffet, it was found that
the County had not properly constructed a road because it lacked the proper crown and pitch to divert
surface waters in the direction intended. The trial court directed the County to take "corrective steps
within 240 days... to prevent the said draining of surface waters onto plaintiff's land and ...in plaintiff's
ditch, in excess of existing prescriptive rights." The Court of Appeal affirmed, finding that the trial court
had properly enjoined the County's "maintenance (of the street) in such a condition."
Since the Court finds that no immunity applies and the City has not acted reasonably in its maintenance
and control of its Shore Drive beach property, the Court orders the City of San Buenaventura to take

DATE: 05/25/2011 MINUTE ORDER Page 10


DEPT: S5 Calendar No.
CASE TITLE: Wilson vs. City of San Buenaventura CASE NO: 56-2007-00308930-CU-PO-VTA

appropriate action to abate the continuing sand nuisance that its inaction has caused to the VCSB
plaintiffs. (Compare Guttinger v. Calaveras Cement Co. (1951) 105 Cal.App.2d 382).
The Court grants an injunction that is limited to the facts of this case. It is within the City's authority to
determine the manner in which it will do so, but the Court finds that the City has the obligation to
maintain its Shore Drive right-of-way so as not to create a nuisance and to prevent the buildup of sand
mounds and the cascade of sand that is pressing against the plaintiffs' retaining walls and flooding the
public stairways leading to the beach. The City needs to maintain its right-of-way in such a manner that
the sand does not build up against the plaintiffs' properties, the beach stairways and the lane ends. The
sand levels should be maintained at half the height of the lane end retaining walls and at a level below
the plaintiff property owners' walls and homes.

Counsel for the plaintiffs, Ms.Neiswender and Mr. McDermott, shall draft a proposed injunction order for
the sand maintenance and removal, serve it on the City's attorney and present it to the Court for
signature. It shall comport with the findings in this decision.
The court's secretary is requested to serve the Court's decision on all counsel of record.

IT IS SO ORDERED.

DATE: 05/25/2011 MINUTE ORDER Page 11


DEPT: S5 Calendar No.