County of San Bernardino v. Super. Ct.
Filed 12/26/08 County of San Bernardino v. Super. Ct. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
COUNTY OF SAN BERNARDINO et al., Petitioners, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; STEVEN SCHWING et al. Real Parties in Interest. | E047014 (Super.Ct.No. CIVVS702580) OPINION |
ORIGINAL PROCEEDINGS; petition for writ of mandate. Larry W. Allen, Judge. Petition granted.
Ruth E. Stringer, County Counsel, and Mitchell L. Norton, Deputy County Counsel, for Petitioners.
No appearance for Respondent.
Timken Johnson Hwang, Heidi A. Timken and Elizabeth K. Hwang for Real Parties in Interest.
In this matter, we have reviewed the petition, the opposition filed by real parties in interest, and the reply. We have determined that resolution of the matter involves the application of settled principles of law and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
Code of Civil Procedure section 1260.040 can be used to effect a summary determination of both factual and legal issues other than the amount of damages. (Dina v. People ex rel. Dept. of Transportation (2007) 151 Cal.App.4th 1029.) However, that same case implicitly cautions against the use of the motion procedure to determine contested issues without a full trialeven a bench trial. Thus, Dina holds, and we agree, that in reviewing an order determining a critical issue under this statute, we apply a strict standard of review and examine the evidence most favorably to the losing partyin this case, petitioners. (Id. at pp. 1045-1046.)
Petitioners hoped to establish a prescriptive easement in the land where the sewer pipe is actually located. To do so, the critical disputed issue was whether the use was open and notorious, which, in the case of a buried line, involves the question of whether its location was plainly signaled by visible surface installations. (See Jones v. Harmon (1959) 175 Cal.App.2d 869.) While we agree that the photographs in the record before this court are not helpful, our examination of the plan drawings suggests that petitioners position is that anyone who observed the location of manholes at the front and back of the property would have realized that the sewer pipe must run in a straight line between the manhole covers and its location was therefore reasonably apparent. Whether a finder of fact would determine this to be true after trial is not before us, but we think, viewed most favorably to petitioners, this possibility cannot be disregarded.
We also are somewhat concerned at the lack of attention apparently given to petitioners legal arguments and the fact that it was real parties in interests predecessor or predecessors in interest who arranged for the actual laying of the pipe outside the line determined for the easement. Petitioners argument that the predecessor(s) responsible for the actual placement of the line must have intended that the public entities operating the water/sewer system receive an easement covering the actual location of the line is far from insubstantial. Whether petitioners should be found liable in money damages for an alleged taking, which arguably resulted from errors by other persons outside its control, is a question that we do not believe was fully considered below and which may well depend on a fuller presentation of the historical facts on both sides.
DISPOSITION
Accordingly, we conclude that the trial court erred in granting real parties in interests motion for a determination of liability and we grant the petition.
Let a peremptory writ of mandate issue, directing the Superior Court of San Bernardino County to vacate its order establishing petitioners liability for inverse condemnation, and to enter a new order denying real parties in interests motion. The denial shall be without prejudice to redetermination of the issues at trial.
Petitioners are directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
Each party shall bear their own costs.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
GAUT
J.
KING
J.
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