A South County nursery owner won’t get a second chance to prove that the five entities he sued should be held responsible for contributing to continuing flooding problems at his business, a Superior Court judge ruled Friday.

Oceano Nursery owner Bill Bookout, who is a member of the Oceano Community Services District board of directors and is seeking re-election in November, sued OCSD as well as San Luis Obispo County, Caltrans, Union Pacific Railroad and the Pismo/Oceano Vegetable Exchange in 2006.

He claims the five entities contributed to and caused continual flooding problems at his nursery over the years, forcing him finally to close the business earlier this year.

However, after presiding over a 10-day trial in the case in July, Superior Court Judge Martin Tangeman threw the claims out after ruling in early August that the evidence failed to support any liability on the part of the agencies.

The trial was triggered by a motion filed by Bookout’s attorneys for a judgment against the defendants for damages to the nursery. Bookout is still pursuing a jury trial to recover damages, he said.

“I’m going all the way,” he said Friday afternoon, adding that Pismo/Oceano Vegetable Exchange is no longer part of the lawsuit because he settled with them for $225,000 last month.

The lawsuit alleges, in part, that over the years, the county diverted storm water runoff to Highway 1, Caltrans raised the level of the highway by three inches and the Community Services District failed to properly maintain its drainage systems, all causing repeated flooding at the nursery.

Advertisement

Oceano Nursery sits on Highway 1 at 13th and Paso Robles streets, where water consistently backs up during large storms, often flooding the now-closed business.

After Tangeman threw out the inverse condemnation claims, Bookout’s lawyer, John Belsher, filed a motion for a new trial, based on an allegation that the county withheld documents proving Oceano Nursery didn’t flood prior to 2004.

Belsher claims the county didn’t turn over more than 300 documents, including county-issued drainage and flood control study questionnaires that Oceano residents and business owners filled out in 2002, during the discovery phase of the trial.

“What we’ve learned (by looking at the documents) is there are probably dozens of people that could testify,” Belsher argued Friday. “Their statements are directly germane to all the evidence and testimony presented during the trial. This new evidence is extremely important to the prosecution of this case.”

The county gave the documents, which it claimed not to have during discovery, to Belsher on July 30, after the trial had already concluded.

Tangeman said Friday that he gave Belsher an opportunity to provide new evidence early last month and nothing was offered, and reiterated that he doesn’t believe the nursery didn’t flood prior to 2004, as Bookout claims.

“I have to reject the (argument) that there’s nothing to support the theory there was no flooding prior to 2004,” Tangeman said prior to denying the motion for a new trial. “There was substantial evidence of ongoing (flooding) problems for years.”

Tangeman also said to consider the documents — the questionnaires — as evidence and reverse his previous ruling, Belsher needed to identify which respondent would

testify to what, which the attorney didn’t do.

September 13, 2008