Filed 11/4/13 Weidl v. Gil CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


LORENZ WEIDL,                                                                 2d Civil No. B244284
                                                                            (Super. Ct. No. 1373629)
     Plaintiff and Appellant,                                                (Santa Barbara County)

v.

JOSE GIL et al.,

     Defendants and Respondents.


                   Plaintiff Lorenz Weidl appeals a summary judgment in favor of defendants
Jose Gil and Sanjuana Gil on the grounds that Weidl's action was barred by the running
of the statute of limitations. In his first amended complaint, Weidl sought damages and
injunctive relief for causes of action for trespass, nuisance, negligence and unjust
enrichment. We conclude, among other things, that the trial court did not err because: 1)
Weidl's causes of action were subject to a three-year statute of limitations, 2) his action
was untimely, and 3) he did not meet his burden to produce evidence to show that he fell
within the continuing nuisance doctrine. We affirm.
                                                        FACTS
                   Weidl owns real property on Sunset Ridge in Goleta. The Gils own an
adjacent parcel of real estate. A 20-foot-wide easement runs across the Gils' property that
Weidl "uses as his means of ingress and egress to his property." The Gils constructed "a
concrete block wall," which runs "along the length of the easement."
              In June 2005, Weidl wrote to Mr. Gil about the wall and "a fence" the Gils
constructed between the "adjoining properties." Weidl said, "[Y]our wall is lying well
within the easement and is going to cause me to do additional reinforcing on the downhill
side of the road." On July 1, 2005, he wrote to Gil and said, "[M]ajor portions of the
block wall are in my easement and at one place blocks off the easement entirely. Your
wall also raises drainage issues." He added, "[Y]ou have a fence at the rear of your
property that actually is on my property (at least in places)." In 2005, Weidl and the Gils
retained lawyers. They were unable to "reach[] a resolution."
              In November 2005, Weidl "discovered damage to the easement as a result
of water drainage" from the wall. In June 2006, Weidl discovered damage to his property
"as a result of water drainage from the Gil property."
              On January 20, 2011, Weidl filed a lawsuit against the Gils. In his first
amended complaint, he alleged the wall and fence interfered with his property interest in
the easement. He claimed the Gils' "block wall and chain link fence . . . negatively
impacted" his use and enjoyment of his property, and that they were "negligently
designed, located and constructed" within "the last five years." He sought damages and
injunctive relief for four causes of action: trespass, nuisance, negligence and unjust
enrichment.
              The Gils filed a motion for summary judgment claiming that all causes of
action were barred by the running of a three-year statute of limitations. In opposition,
Weidl said, "Plaintiff continues to accrue damages to his easement every time it rains
because Defendants' wall is improperly designed and constructed." He attached his
declaration and an engineering report.
              In granting summary judgment, the trial court said Weidl "does not dispute
the fact that this action is brought more than three years after he became aware of the
alleged encroachments and issues regarding drainage from the hill on which the wall
sits. . . . Plaintiff has failed to carry his burden of demonstrating a triable issue of fact
supporting the continuing nuisance exception to the statute of limitations."


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                                         DISCUSSION
                                 The Statute of Limitations
              Weidl contends the trial court erred because the three-year statute of
limitations did not expire because the Gils maintained a continuing nuisance.
              The Gils contend that in 2005 Weidl knew they built the concrete wall, but
Weidl did not file his action until 2011. They claim their fixed structures were not a
continuing nuisance and his action is barred by a three-year statute of limitations. We
agree.
              "[T]he party moving for summary judgment bears an initial burden of
production to make a prima facie showing of the nonexistence of any triable issue of
material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "[I]f he
carries his burden of production, he causes a shift, and the opposing party is then
subjected to a burden of production of his own to make a prima facie showing of the
existence of a triable issue of material fact." (Ibid.) "There is a triable issue of material
fact if, and only if, the evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in accordance with the
applicable standard of proof." (Ibid.)
              The defendant who seeks summary judgment bears the burden of showing
that the statute of limitations period "had expired when [plaintiff] filed his action."
(Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 788.) If that burden is met,
the plaintiff bears the burden to prove an exception to the statute of limitations. (Ibid.)
Our review is de novo. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.)
"'[I]n practical effect, we assume the role of a trial court and apply the same rules and
standards that govern a trial court's determination of a motion for summary judgment.'"
(Ibid.)
              Here there is a three-year statute of limitations for Weidl's causes of action
for trespass, nuisance, unjust enrichment and negligence. (Code Civ.Proc., § 338, subd.
(b) [three-year limitations period for trespass or injury to real property]; Starrh & Starrh
Cotton Growers v. Aera Energy, LLC (2007) 153 Cal.App.4th 583, 592; Beck

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Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160,
1216 [three years for nuisance]; Federal Deposit Ins. Corp. v. Dintino (2008) 167
Cal.App.4th 333, 348 [three years for unjust enrichment].)
                 On June 4, 2005, Weidl wrote to Mr. Gil complaining about the wall and
"drainage issues." In discovery, Weidl admitted that he first discovered "damage" caused
from "water drainage from [the Gils'] property" in June 2006. A cause of action
generally accrues when the plaintiff suffers damage. (Lyles v. State of California (2007)
153 Cal.App.4th 281, 286.) But Weidl did not file this action until January 20, 2011.
That was beyond the three-year limitations period. During his deposition, Weidl was
asked why he waited so long to file his action. In response, he said, among other things,
"I had just gotten married. We were moving. There was just a million things on my
plate . . . ."
                 Weidl contends his action was not barred because he sought relief for a
continuing nuisance. The Gils claim his action is barred because it involves a challenge
to a fixed structure and it consequently falls within the permanent nuisance category. We
agree.
                 There are differences regarding the running of the statute of limitations in
actions to abate permanent nuisances and continuing nuisances. "The cases finding the
nuisance complained of to be unquestionably permanent in nature have involved solid
structures, such as a building encroaching upon the plaintiff's land . . . , a steam railroad
operating over plaintiff's land . . . , or regrade of a street . . . ." (Baker v. Burbank-
Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 869, italics added, citations
& fns. omitted.) "In such cases, plaintiffs ordinarily are required to bring one action for
all past, present and future damage within three years after the permanent nuisance is
erected." (Ibid.) Where a landowner has no knowledge of damage caused by such a
nuisance, some courts have indicated that the statute of limitations may begin to run
when he or she discovers the damage. (Lyles v. State of California, supra, 153
Cal.App.4th at p. 286; Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087, 1096.)


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              By contrast, "[i]f a nuisance is a use which may be discontinued at any
time, it is considered continuing in character and persons harmed by it may bring
successive actions for damages until the nuisance is abated." (Baker v. Burbank-
Glendale-Pasadena Airport Authority, supra, 39 Cal.3d at p. 869, italics added.)
Continuing nuisances typically involve an "injury that is attributable to the defendant's
continuing activities, the discontinuance of which would terminate the injury." (Beck
Development Co. v. Southern Pacific Transportation Co., supra, 44 Cal.App.4th at
p. 1218, italics added.)
              In his complaint, Weidl alleged that the damage to his property was caused
by solid structures--a "block wall and chain link fence," which were "negligently
designed, located and constructed." He describes this structure to be a " 500-600 [foot]
concrete block wall along a roadway easement leading to" his property. Under Baker,
this is a solid structure. This block wall was erected in 2002. "[T]he courts have held
that the encroachment of . . . walls . . . are permanent in nature." (Field-Escandon v.
DeMann (1988) 204 Cal.App.3d 228, 233, citations omitted.) Consequently, damages
caused by such fixed structures fall within the permanent nuisance category. (Id. at pp.
233-234.)
                                       Tracy v. Ferrera
              Weidl contends the trial court erred in light of Tracy v. Ferrera (1956) 144
Cal.App.2d 827. We disagree. In Tracy, the court reversed a judgment following the
sustaining of a demurrer to the plaintiffs' complaint. The plaintiffs alleged adjoining
landowners created a nuisance by maintaining pipes that caused noxious orders. In
deciding the nature of the nuisance, the court distinguished between structural defects and
the acts and "uses" plaintiffs alleged to have occurred. It said, "[C]omplaint is made, not
of their location, but of the use to which they are put." (Id. at p. 828, italics added.)
There was no statute of limitations problem because plaintiffs alleged "the acts occurred
within three years." (Id. at p. 829, italics added.)
              But unlike Tracy, Weidl's complaint is based on a structural design defect
for structures erected outside of the statute of limitations period. Weidl does not allege

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the Gils constructed the wall within the past three years. His pleading alleges the wall
was built "within the preceding five years." In his declaration, Weidl said, "I became
aware of the potential encroachment of the Defendants' wall in or around March,
2005 . . . ."
                    Weidl's Showing in Opposition to Summary Judgment
                Weidl claims he made a sufficient showing to oppose summary judgment.
He argues he was seeking relief from a continuing nuisance. But, "[a] plaintiff cannot
simply allege that a nuisance is continuing in order to avoid the bar of the statute of
limitations . . . ." (Beck Development Co. v. Southern Pacific Transportation Co., supra,
44 Cal.App.4th at p. 1217.) He or she "must present evidence that under the
circumstances the nuisance may properly be considered continuing rather than
permanent." (Ibid.)
                In his declaration opposing summary judgment, Weidl said, "Within three
years prior to filing suit and continuing thereafter, I have regularly and repeatedly
expended significant sums of money for soil, road base, gravel and labor to repair the
damage to my property and road caused by excessive rainwater run off which is
concentrated by Defendant's wall and directed over my road and property, causing
damage." (Italics added.) He believed the wall was the source of the damage, not the
defendants' "use which may be discontinued at any time." (Baker v. Burbank-Glendale-
Pasadena Airport Authority, supra, 39 Cal.3d at p. 869.) Where a nuisance has
"characteristics which [are] overwhelmingly permanent," the plaintiff may not "elect to
treat the encroachment as a continuing rather than a permanent nuisance." (Spar v.
Pacific Bell (1991) 235 Cal.App.3d 1480, 1488.)
                Citing Lee v. Los Angeles County Metropolitan Transportation Authority
(2003) 107 Cal.App.4th 848, Weidl claims the statute of limitations did not begin to run.
He argues damage to his property had "not yet stabilized," and consequently his cause of
action had "not yet accrued." But Lee is distinguishable. There the court reversed a
judgment of dismissal after the sustaining of a demurrer to the plaintiff's complaint. It
concluded the plaintiff pled sufficient facts to overcome a demurrer based on the running

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of the statute of limitations for her nuisance damage cause of action. The plaintiff alleged
she suffered damage due to: 1) Metro Rail construction, and 2) "ongoing construction"
that will "continue to damage [her] businesses." (Id. at p. 858.) Consequently, the
plaintiff's damages had not stabilized because of the continuing construction activities.
              By contrast, Weidl did not show that the Gils conducted ongoing
construction. In his separate statement of facts, he said the wall was not complete, but he
admitted the Gils conducted "no significant work towards completion since 2005."
(Italics added.) Unlike the defendants in Lee and Tracy, the Gils did not initiate activities
within the three-year limitations period that caused a nuisance. Moreover, Weidl's claim
that the wall is not complete misses the point. The issue is whether the wall was intended
to be a permanent structure when it was built, regardless of its current condition.
(Castelletto v. Bendon (1961) 193 Cal.App.2d 64, 67.) Weidl has not shown that a large,
decade-old concrete wall spanning the length of two football fields was built to only be a
moveable or temporary structure.
              Weidl claims he will be subject to continuous damage when it rains because
the wall directs water to his property. He argues this nuisance consequently falls within
the continuing category. We rejected a similar argument in Bookout v. State of California
ex rel. Dept. of Transportation (2010) 186 Cal.App.4th 1478, 1490. There appellant
claimed a pipeline, which redirected water and flooded his property when it rained, was a
continuing nuisance. He argued he was not subject to the three-year statute of
limitations. In rejecting this claim, we recognized that although damage could
continually originate from the solid structure, the type of nuisance remained the
same--permanent. We said, "A solid structure that encroaches on a plaintiff's land
produces continuous damage. Yet, our Supreme Court described such a nuisance as
'unquestionably permanent.'" (Ibid.)
                                   An Abatable Nuisance
              The Gils also claim Weidl did not meet his burden to present evidence that
the nuisance "is abatable by reasonable means and at a reasonable cost." We agree.
Plaintiffs who allege continuing nuisances "must prove 'that whatever they claim

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constitutes the nuisance is actually and practically abatable by reasonable measures and
without unreasonable expense.'" (Mangini v. Aerojet-General Corp., supra, 12 Cal.4th at
p. 1098.) They must produce evidence on "hardship and cost" so the trier of fact may
determine if the nuisance is abatable. (Id. at p. 1099.) Weidl did not meet that
evidentiary burden.
              Weidl presented a report by Mitch Perkins, an engineer. The Gils claim it
does not support a triable issue of fact on abatement because it is a hearsay document
without adequate foundation for its admissibility. We agree.
              The report did not meet the minimal standards for evidence opposing
summary judgment. The report was not a sworn document, nor was it signed. It was
simply a two-page letter to Weidl from Perkins, with no indication that Perkins ever
intended to testify as an expert witness. Weidl made no showing why Perkins did not file
a declaration under penalty of perjury. (Kulshrestha v. First Union Commercial Corp.
(2004) 33 Cal.4th 601, 618.) In the letter, Perkins offered his conclusions without stating
his qualifications for making them. He opined on the subject of downhill water flow
erosion. He claimed that water flowing from the wall caused "erosion at the downhill
side of the road." But he did not claim to be a geologist or hydrologist. He did not state
that he ever received training in water flow origination or diversion. Nor did he discuss
why water would not naturally flow downhill due to gravity, with or without a wall.
Perkins opined that a "new culvert and re-compaction [of soil] should be performed to
mitigate and diffuse the water transference." But he did not claim to have expertise on
soil. In fact, he said that "[a] licensed Soils Engineer should be retained to provide soils
and re-compaction specifications." Weidl made no showing why he did not retain such
an expert to obtain those specifications, or why he did not obtain a declaration from a
licensed soils engineer.
              Moreover, neither Weidl nor Perkins made any estimates on the costs of
abatement measures, the hardship of abatement for the Gils, or whether it could be
performed "without unreasonable expense." (Mangini v. Aerojet-General Corp., supra,
12 Cal.4th at pp.1098-1099.) These omissions were fatal to Weidl's claim that there was

                                              8
a continuing nuisance. (Ibid.) From our independent review of the record, we conclude
the trial court did not err by granting summary judgment for the Gils.
               The judgment is affirmed. Costs on appeal are awarded in favor of
respondents.
               NOT TO BE PUBLISHED.




                                          GILBERT, P.J.


We concur:



               YEGAN, J.



               PERREN, J.




                                            9
                Denise de Bellefeuille, Judge

          Superior Court County of Santa Barbara

            ______________________________


Frank P. Cuykendall for Plaintiff and Appellant.


Griffith & Thornburgh, LLP, John C. Eck for Defendants and Respondents.




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