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W&W El Camino Real, LLC v. Fowler

California Court of Appeals, Fourth District, First Division

May 16, 2014

W&W EL CAMINO REAL, LLC, Plaintiff and Appellant,
VICTORIA FOWLER, as Trustee, etc., Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County No. 37-2010-00063515-CU-OR-NC, Thomas P. Nugent, Judge.

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[Copyrighted Material Omitted]

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Blanchard, Krasner & French, A. Kipp Williams and Luke J. Jana for Plaintiff and Appellant.

Lucas & Haverkamp Law Firm, Stephen D. Lucas and Patricia Jo Custer for Defendant and Respondent.


BENKE, Acting P. J.

Plaintiff and appellant W&W El Camino Real, LLC (W&W) sued its upslope neighbor, defendant and respondent Victoria Fowler, trustee of the Fowler Revocable Living Trust (Fowler), for property damages after a January 2010 severe rainstorm flooded the property currently owned by W&W with water, mud and debris over the course of several hours, and which W&W contends originated from Fowler's property. Fowler owns several acres of real property located in Rancho Santa Fe, California. For many years Fowler has operated a lemon grove on about four of those acres consisting of about 450 trees.

The jury in the special verdict form found in favor of W&W and awarded it about $350, 000 in damages. However, the jury also found Civil Code[1] section 3482.5, also known as the "Right to Farm Act, " applied. Under that statute, a commercial agricultural activity conducted for more than three years consistent with accepted standards in the locality is deemed not to be a nuisance due to any changed condition in the locality if the activity did not constitute a nuisance when it began. (See Souza v. Lauppe (1997) 59 Cal.App.4th 865, 868 [69 Cal.Rptr.2d 494] (Souza).) As a result of the jury's finding that section 3482.5 applied, W&W's damage award was nullified.

On appeal, W&W contends the trial court erred by allowing Fowler to amend her answer on the day trial was to begin to assert the defense of section 3482.5. W&W alternatively contends that section 3482.5 does not apply in this case and that the jury's findings in the special verdict are contradictory and irreconcilable.

As we explain, we conclude on this record that the trial court did not abuse its discretion when it allowed Fowler to amend her answer to assert the defense of section 3482.5.

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However, we also conclude that the issue of whether section 3482.5 applied in this case should have been teed-up first in the special verdict form before the jury reached the issue of negligence/comparative fault of the parties because that verdict, as it now stands, is hopelessly inconsistent. We further conclude on remand the activity and/or operations alleged to be the nuisance and the nuisance itself should be defined for the jury in order for it to determine whether such activity or operations was an "agricultural activity, operation, or facility, or appurtenance thereof" within the meaning of section 3482.5.

We thus reverse the judgment in favor of defendant Fowler and remand the matter for a new trial consistent with the principles discussed in this opinion.


In 1981, Fowler purchased real property in Rancho Santa Fe, which included an avocado grove. In the late 1980's, Fowler paid a professional citrus grove company, R.E. Badger & Son, Inc. (Badger), $26, 400 to remove the nearly dead avocado grove and plant about 450 lemon trees (lemon grove) on about four acres of the real property. In the early 1990's, Badger subsequently installed a drainage and erosion control system (drainage system), designed by a soils engineer, in the center of the lemon grove. The drainage system consisted of a 12-inch corrugated plastic pipe that exited about three feet from W&W's property line. Until the damage at the heart of this lawsuit, which occurred in 2010, Fowler was unaware of the existence of the drainage system in her lemon grove.

Badger is a family-run business that has been working in the agriculture industry in the Rancho Santa Fe area for decades and, at one point, managed over 1, 000 acres of groves in the area, comprised mainly of oranges but also avocados and lemons. At the time of trial, Badger was still managing and operating the lemon grove. One of the individuals who owned and operated the company, Charles E. Badger, Sr., testified that while managing the lemon grove he never received any complaints from any owner of property located downhill from Fowler's property related to the lemon grove, including any complaint about water runoff.

In about 2005, W&W purchased for $1.5 million vacant land located to the east of, and downhill from, the lemon grove (W&W property). W&W purchased the W&W property to construct a new home to sell. W&W hired a

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contractor to build the house, which W&W eventually sold for $8.2 million in mid-2008 to the Yde Family. The Ydes eventually fell behind on the loan payments, and W&W in response took back the W&W property.

On a day in mid-January 2010 the area comprising the lemon grove and the W&W property experienced heavy rains. In fact, Charles E. Badger, Sr., testified as an expert on Fowler's behalf that, on the day of the flood, the area experienced three inches of rain, which he described as a "massive sudden rainfall occurrence that happened in just a few hours." As a result, a "substantial amount of water" was released through the outlet pipe of the drainage system.

According to W&W's operative complaint, the "water traveled at great force and at a high velocity, taking dirt and landscaping with it, ultimately rushing onto the W&W property and resulting in water and mud flowing down the hill and flooding the W&W property, " severely damaging that property, the newly constructed house on it and its contents. At the time of the flooding, the W&W property was owned and occupied by the Ydes.

Before the mid-January 2010 flooding, the only problem related to water and mud intrusion in connection with the W&W property was a single instance during construction of the home in which some dirt from a planter box that was not yet planted, located above the pool, ran into the pool located on the W&W property after a rain storm. The pool company cleaned the pool and removed the dirt.

Otherwise, based on the testimony of Fowler, Charles E. Badger, Sr., Stewart Weissman, who along with his partner purchased the W&W property in or about 2005, the contractor, James Sylvester, who built the house on the W&W property during a two-year period, and William Yde, the owner that purchased the W&W property from W&W, there is no evidence any water, mud and debris from the lemon grove had run onto ...

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