Mosesian v. County of Fresno

• Decision Date: 01 November 1972
• Citation: 104 Cal.Rptr. 655,28 Cal.App.3d 493
• Court: California Court of Appeals Court of Appeals
• Parties: Paul S. MOSESIAN et al., Plaintiffs and Respondents, v. COUNTY of FRESNO, Defendant and Appellant. Civ. 1569.

Page 655

104 Cal.Rptr. 655

28 Cal.App.3d 493

Paul S. MOSESIAN et al., Plaintiffs and Respondents, v. COUNTY of FRESNO, Defendant and Appellant.

Civ. 1569.

Court of Appeal, Fifth District, California.

Nov. 1, 1972.

Robert M. Wash, County Counsel, James B. Waterman, Deputy County Counsel, Fresno, and Cyril Viadro, San Francisco, for defendant-appellant.

Paul S. Mosesian and R. W. Levy, Fresno, for plaintiffs-respondents.

OPINION

GEO. A. BROWN, Associate Justice.

Plaintiffs and respondents, Paul S. Mosesian, Charles S. Mosesian, Suren P. Mosesian and Marion G. Mosesian, hereinafter referred to as 'Mosesians,' recovered judgment for $22,575 damages in this action in inverse condemnation against the defendant and appellant County of Fresno. ¹

The county raised a number of affirmative defenses in the trial court, including implied dedication, various statutes of limitation, equitable estoppel and failure to comply with the claim law. The only issue urged by the county for reversal on this appeal is the failure of Mosesians to comply timely with statutory requirements for filing a claim pursuant to Government Code sections 901 and 911.2, the other defenses having been abandoned. We have concluded that the mandatory requirements of the claims statute were not complied with and, accordingly, reverse the judgment.

It is settled that the one-year claim provision of Government Code section 911.2 ² applied to and requires the filing of a claim as a condition precedent to an action in inverse condemnation against a county. (Gov.Code, § 945.4; Bellman v. County of Contra Costa (1960) 54 Cal.2d 363, 369, 5 Cal.Rptr. 692, 353 P.2d 300; Dorow v. Santa Clara County Flood Control Dist. (1970) 4 Cal.App.3d 389, 391, 84 Cal.Rptr. 518; Bleamaster v. County of Los Angeles (1961) 189 Cal.App.2d 274, 278--279, 11 Cal.Rptr. 214.) Mosesians did not attempt to seek the statutory procedure for court relief set forth in Government Code section 946.6. (See Ridley v. City etc. of San Francisco (1969) 272 Cal.App.2d 290, 292, 77 Cal.Rptr. 199.)

The issues herein are further narrowed by the fact that Mosesians have not at any time made any contention that the county is estopped to assert he claim statute. (Cf. Farrell v. County of Placer (1944) 23 Cal.2d 624, 145 P.2d 570; Rand v. Andreatta (1964) 60 Cal.2d 846, 36 Cal.Rptr. 846, 389 P.2d 382.) No issue of estoppel is raised in the pleadings or pretrial order nor in the findings or judgment. So far as the record demonstrates, estoppel was not referred to by Mosesians' counsel in his statements to the trial court and it has not been raised as an issue on appeal.

Mosesians relied and continue to rely upon the single position that their cause of action for inverse condemnation did not accrue at a time more than one year before the filing of their claim on February 13, 1970 (Gov.Code, § 901), ³ and therefore their claim was timely. Determination of when the cause of action for inverse condemnation arose and whether the time for filing a claim was postponed will be dispositive of the case.

The 3.01 acres of land involved in this litigation are used as a ponding area as part of a residential subdivision drainage plan imposed by the county as a condition to approval of a subdivision map.

On April 2, 1958, Mosesians sold approximately 135 acres of land suitable for subdivision development to Joseph and Priscilla Romano and took back a note representing the balance due on the sale, secured by a deed of trust on the property sold.

Romano and successor corporations proceeded to develop the property. They filed a tract map which was properly approved by everyone except Mosesians, the holders of the note and deed of trust. As a condition of approval of the subdivision and to provide for drainage, the county imposed a requirement that a suitable settlement pond area be provided and constructed in a manner approved by the county.

Under a contract let by the couty, the 3.01-acre settlement pond was excavated, accompanying operating facilities were installed, and the entire area was enclosed with a six-foot chain link fence. The excavation and work of improvement were completed and notice of completion was recorded on December 11, 1959. In this inverse condemnation case the date of valuation was determined by the court to be December 11, 1959, and on the damage issue the jury was so instructed.

Since December 11, 1959, the area has been in the sole and exclusive possession of the county and used and maintained by the county as a ponding and settlement basin from that day to the date the claim was filed on February 13, 1970, and thereafter. The claim was rejected on February 17, 1970, and the action herein was filed on March 9, 1970, a period in excess of 10 years from the date of the completion of the project. However, Mosesians, as holders of the deed of trust, did not consent to the construction of the ponding basin and the county in fact did not have title thereto.

In November 1965, upon default by Romanos, Mosesians foreclosed their deed of trust and reacquired the property. They have been the owners from that date through the date they filed their claim herein, a period in excess of four years.

The county has performed routine maintenance on the fence and pond during the entire period. It increased the depth of the ponding area in September 1969 by the removal of 8,500 cubic yards of dirt and subsequently in March 1970 by the removal of 4,000 cubic yards of soil. The amount of area actually occupied by the county has not changed or increased since the original completion on December 11, 1959, nor has Mosesians' adjacent land been affected by the additional work done.

Mosesians were aware of the construction and completion of the pond in 1959 and have seen it periodically since. Suren P. Mosesian testified that about the time it was completed he asked Romano about it and Romano told him it was a temporary pond. In late 1959 or early 1960 Suren P. Mosesian also asked his attorney to check into it and the attorney told him that he had been informed by Romano the ponding area was temporary and when a metropolitan flood control district came into the area the pond would be removed.

Romano testified that he understood from the county that the pond would be temporary. ⁴

It is undisputed that none of the plaintiffs had any contact with any representative of the county until June 1968, at which time Charles S. Mosesian and Paul S. Mosesian met with Deputy County Counsel Viau at the latter's office. Charles testified that Viau told him the county's possession was temporary. ⁵

Viau denied he ever told any of the plaintiffs the county wanted only temporary possession or that the land would be returned to them.

On January 8, 1969, Paul S. Mosesian, one of the plaintiffs and counsel for plaintiffs, wrote a letter to the deputy county counsel, part of which reads:

'This letter is to Confirm our discussion on June 19, 1968, in the Planning Department office regarding the above mentioned ponding site. As I informed you on that date, in my opinion the County has inversely condemned the subject three acres on which the ponding basin has been dug and around which a fence has been constructed. As the subject site, owned by the undersigned and others, is going to be developed in the immediate future, this letter is written so that if this matter can be compromised without need of a lawsuit, that the same be done forthwith.' (Emphasis added.)

On January 10, 1969, the county responded by letter in which the deputy county counsel advised Paul S. Mosesian that the county has claimed title to an easement in the property since December 11, 1959, and that 'In our opinion this matter cannot be compromised. . . .'

On January 20, 1969, Mosesians filed a suit in inverse condemnation against the county, being action No. 139878, for damages for the ponding area in question. That case went to judgment and recovery was denied to Mosesians because they had not filed a claim.

Among other things, the complaint filed by Mosesians in the former action alleges: '. . . and that said ponding basin existed and does continue to exist to this date, and that plaintiffs are informed and believe and upon such information and belief allege that such ponding basin is permanent and not temporary.' And they further allege: '. . . and the aforesaid property of plaintiffs has been permanently taken for public use by defendants without payment of consideration to plaintiffs therefor, . . .'

In the above referred to former action between these parties (action No. 139878), Mosesians took the position that no claim had to be filed in an inverse condemnation action. They did not contend, as they do now, that the cause of action did not arise until Mosesians knew whether the taking was permanent or temporary. Significantly, with reference to the issue of the accrual of the cause of action, neither the memorandum of indicated decision nor the judgment in that former action makes any finding or adjudication on the question of whether the taking was permanent as distinguished from temporary. ⁶

All of the issues raised in the former action were decided adverse to the county and in favor of Mosesians except that the judgment stated: 'That plaintiffs take nothing by reason of their Complaint, solely because they have not filed a Claim as required by Sections 905 et seq. of the Government Code.' The memorandum of indicated judgment was signed on February 4, 1970, and filed on February 5. Mosesians filed a claim on February 10, 1970, which was rejected by the county on February 17. This suit followed on March 9, 1970.

Mosesians correctly, we believe, have taken the position in the current proceedings that the court in the prior case made no determination as to when the cause of action arose or the timeliness of the claim that may be filed. On the claim issue, the only determination that was made was that a claim must be timely filed...