Rancho Viejo v. Tres Amigos Viejos

Opinion

Appellant Rancho Viejo, LLC, sued respondent Tres Amigos Viejos, LLC, for damages after water imported by respondent for irrigation flowed onto and damaged appellant’s adjoining property. The trial court granted summary judgment in favor of respondent on the ground appellant’s causes of action were barred by Civil Code section 3482.5,^[1] which exempts prescribed agricultural activities from nuisance liability. Appellant contends (1) its causes of action for trespass and failure to contain irrigation water are not subject to section 3482.5’s exemption; (2) section 3482.5 was not intended to apply to circumstances where the adjoining properties were originally a single parcel that was subdivided into urban use by the original owner; and (3) assuming section 3482.5 was applicable to the facts, appellant raised triable issues of material fact preventing summary judgment based on the statute as a complete defense. We conclude the court correctly applied section 3482.5 to appellant’s causes of action, and appellant has not demonstrated the existence of any material factual issue as to respondent’s ability to prove its activities fall within the statute. Accordingly, we affirm.

Factual and Procedural Background

We set forth the undisputed facts from the parties’ documents supporting their moving and opposing papers (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317 , 327 [ 100 Cal.Rptr.2d 352 , 8 P.3d 1089 ]) and state other facts and draw inferences from them in the light most favorable to appellant. (Code Civ. Proc., § 437c subd. (c); Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App. 4th 1509 , 1520 [ 80 Cal.Rptr.2d 94 ]; Van Dyke v. S.K.I., Ltd. (1998) 67 Cal.App.4th 1310 , 1313, fn. 2 [ 79 Cal.Rptr.2d 775 ].)

Edker and Blanche Pope owned 500 acres of real property located in the San Luis Rey River Valley in North San Diego County, otherwise known as

On December 1, 1997, the Popes sold appellant the portion of the Pope Ranch commonly known as the Lake Rancho Viejo Subdivision (the lower property). The lower property is largely within a relatively flat alluvial plain and is flanked on the east by Lancaster Mountain. At the time of the sale, it contained vacant fields and a 30-year-old commercial orange grove with approximately 500 trees. Those trees were irrigated and harvested for commercial purposes on a regular basis. The Popes retained ownership of the remaining 96 acres situated on a hill located on the eastern boundary of the lower property (the upper property). The upper property contained an orange grove as well as an avocado grove consisting of approximately 6,600 trees that since the mid-1970’s had been commercially farmed on a continuous basis. Those groves have been irrigated by pumping water uphill from wells containing water from the adjacent San Luis Rey River. Although the upper property is located in a municipal water district, district water is not available to the owners because there is no water meter for the groves. The well water is saltier than metropolitan water, and thus in order to dilute the water’s salinity, more well water is applied to the trees than if metropolitan water were available. For years, rainwater and natural runoff has flowed down from the upper property onto the lower property, as has irrigation water from the upper property and from a grove owned by third parties above the upper property.

In 1998, appellant began preparing the lower property for development. It cut down the orange trees and graded building pads directly beneath the avocado grove on the upper property. Appellant excavated cut slopes into the hills along the boundary between the upper and lower properties. During the grading, appellant encountered water seepage on the northeastern section

In November 1998, the Popes sold the upper property to respondent. Respondent’s sole business is commercial avocado farming. It continued to irrigate the upper property in a manner identical to the way it was irrigated before its purchase. In May 1999, appellant discovered water cascading and seeping from the cut slopes in various lots as a result of respondent’s irrigation of the upper property, causing damage to and destabilization of the slope. It requested respondent solve the problem by either reducing its irrigation or installing water control systems to prevent the runoff. In June 1999, after respondent refused its request, appellant installed an additional subdrain system at its own expense to remedy the runoff.

Appellant sued respondent seeking damages and injunctive and declaratory relief under causes of action for failure to contain irrigation water, trespass and nuisance. Respondent moved for summary judgment on the ground section 3482.5 provided a complete defense to appellant’s causes of action. In response, appellant voluntarily dismissed its nuisance cause of action without prejudice.

Relying upon Souza v. Lauppe (1997) 59 Cal.App,4th 865 [ 69 Cal.Rptr.2d 494 ] {Souza), the trial court granted summary judgment in respondent’s favor on the ground that section 3482.5 barred appellant’s causes of action.^[3] Following oral arguments and the parties’ submission of supplemental briefing, the trial court confirmed its ruling. It entered judgment in respondent’s favor.

Discussion

A defendant moving for summary judgment based upon an affirmative defense, as here, bears an overall burden of persuasion that there is a complete defense to the plaintiff’s action, that is, he must persuade the court

Appellant’s argument is fundamentally flawed because it fails to recognize that a nuisance is not limited to intangible intrusions upon land. (See Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125 , 1136 [ 281 Cal.Rptr. 827 ] (Mangini) [“Numeous cases have . . . sanctioned recovery on a nuisance theory for direct injury to a plaintiff’s property.”].) As the court pointed out in Mangini, California nuisance law is a creature of statute, specifically section 3479, which defines a nuisance in part as “ ‘[a]nything which is injurious to health, or is indecent or offensive to the senses, or an

Thus, many activities will give rise to liability both as trespass and a nuisance, if they result in the violation of a person’s right of exclusive possession of land, and also constitute an unreasonable and substantial interference with the use and enjoyment of the land.^[5] (See Mangini, supra, 230 Cal.App.3d at pp. 1136-1137 [citing California cases that recognize invasions of property otherwise amounting to a trespass may also constitute a nuisance under the statutes]; KFC Western, Inc. v. Meghrig (1994) 23 Cal.App.4th 1167 , 1178-1181 [ 28 Cal.Rptr.2d 676 ] [plaintiffs could state

Moreover, appellant’s interpretation of the statute would frustrate its apparent purpose. We concede that, read literally, the statute immunizes specified agricultural enterprises only as against claims based upon a theory of public or private nuisance and not against claims based on other liability theories, such as trespass. But we cannot accept appellant’s position that the Legislature intended by this reference to focus strictly upon the pleaded theory of liability and reject immunity for an accepted and established farming activity amounting to a nuisance, simply because it is pleaded as a trespass. Our review of the legislative history provided by appellant demonstrates no such intent. Indeed, a letter from the sponsor of Assembly Bill 585, Assemblyman John Thurman, urging the speaker of the Assembly to support the measure, indicates an intention contrary to such a narrow reading of the statute. In that letter, Assemblyman Thurman stated: “AB 585 is an important step toward eliminating suits by individuals who have moved to a new housing development ‘in the country’ and find the long-established farm bordering their back fence offends their senses. Suits against agricultural operations for dust, wind machine or tractor noise, livestock or poultry

Appellant seeks to distinguish Souza on the basis that the invasion, the flooding of rice crops, was continuing in nature whereas here, the water intrusion occurred only when respondent irrigated its land. The distinction is baseless. Irrigation is an ongoing operation in commercial farming generally, and was regularly conducted in this case according to the undisputed testimony of respondent’s irrigation worker, Salvador Munoz.^[7] Even where the watering is an occasional leaching, it is still a practice that is repeated on a regular basis. As for appellant’s other attempts to distinguish Souza, we agree the case does not address the precise issue before us. But we need not rely upon Souza for this aspect of our holding; we independently support our conclusion by the undisputed facts of this case revealing that appellant’s causes of action alleging property damage from irrigation water intrusion fall within the literal language of the statute.

Decisions from Washington State involving Washington’s right-to-farm act do not compel a different interpretation of California’s law. Appellant’s assertion that we should follow those courts’ reasoning is based on the premise that the Washington and California statutes are similar, a position we find without merit. In fact, the Washington act, Revised Code of Washington sections 7.48.300 to 7.48.310 and 7.48.905, is significantly different from California’s law in that, among other things, it contains an express damages savings clause: “ ‘Nothing in this section shall affect or impair any right to sue for damages.’ ”^[8] (Buchanan v. Simplot Feeders Limited Partnership (1998) 134 Wash.2d 674 [ 952 P.2d 610 , 613] (Buchanan).) In Buchanan, the Washington Supreme Court considered the language of the Washington act and rejected the plaintiffs’ contention that the damages clause permitted them to recover damages under a nuisance theory as well as other

Under the circumstances, appellant’s claims fall directly within the intent and unambiguous language of section 3482.5, which broadly immunizes established, traditional farming operations from becoming a nuisance due to “any changed condition in or about the locality.” (§ 3482.5, subd. (a)(1), italics added; Souza, supra, 59 Cal.App.4th at pp. 872-874.) In Souza, the Court of Appeal rejected the plaintiff’s claim that the words “any changed condition” were uncertain and needed interpretation by resort to legislative history. Instead, it found the use of “the word ‘any’ expresses an unambiguous legislative intent to broadly apply the statute.” (Souza, supra, 59 Cal.App.4th at p. 873.) Thus, the court upheld application of section 3482.5 in instances where a commercial agricultural entity sues another commercial agricultural entity, holding the statutory language did not limit the statute’s preclusive effect to actions commenced by nonagiicultural plaintiffs. (Souza, at p. 874.) This case does not present such unique circumstances. Appellant is a residential developer and respondent a commercial farmer. Thus, we confront the very situation that appellant itself admits is the focus of the

Nor does our conclusion change by the fact respondent is not the same entity that has been conducting avocado farming on the upper property for over three years. Respondent correctly points out that section 3482.5 is predicated on the duration of the agricultural operations, not the duration of the farmland’s ownership. We would defeat the purpose of section 3482.5 if we found it applied only to farming operations continuously conducted by the same farmer for over three years before occurrence of the changed condition. The statute cannot be read to permit developers to enjoin a long-established farming operation as a nuisance simply because the farm was purchased and operated by a new owner.^[10] Appellant’s argument does not persuade us to reverse the court’s application of section 3482.5 to its causes of action.

IV. Appellant Failed to Meet Its Burden to Raise Issues of Material Fact as to the Elements of Section 3482.5

“For section 3482.5, subdivision (a)(1) to apply, defendants must satisfy seven requisites: The activity alleged to be a nuisance must be (1) an agricultural activity (2) conducted or maintained for commercial purposes (3) in a manner consistent with proper and accepted customs and standards (4) as established and followed by similar agricultural operations in the same locality; the claim of nuisance arises (5) due to any changed condition in or about the locality (6) after the activity has been in operation for more than three years; and the activity (7) was not a nuisance at the time it began.” {Souza, supra, 59 Cal.App.4th at pp. 874-875.)

(8) Appellant contends that, assuming section 3482.5 governs its causes of action, it raised material factual issues as to whether certain requisites of the statute are satisfied. Specifically, appellant maintains its evidence raises disputes as to (1) whether respondent’s irrigation methods were conducted or

A. Accepted and Customary Irrigation Methods

In support of its motion, respondent submitted the declaration of expert Richard Marrocco, who explained that virtually 100 percent of avocado groves in Southern California need massive amounts of irrigation to make up for the lack of rainfall because seasonal rainfall is insufficient to sustain the trees. Marrocco further explained avocado trees require occasional “leaching” in addition to regular irrigation to leach out traces of saline in the irrigation water, regardless of whether the water comes from wells or public sources. He opined, based on his decades of experience in the avocado and citrus industries, that respondent’s “agricultural activity and operation is, and has been, conducted and maintained for a commercial purpose in a manner consistént with proper and accepted customs and standards, as established and followed by similar agricultural operations in the same locality.” He concluded, “[Respondent’s] grove has been in compliance with such customs and standards for many more than three years, probably 20 years.”

Respondent met its burden of producing competent and admissible evidence establishing the customary character of its irrigation methods with Marrocco’s declaration, which set forth Marrocco’s personal knowledge and competency. (Code Civ. Proc., § 437c, subd. (d); e.g., Guthrey v. State of California (1998) 63 Cal.App.4th 1108 , 1119-1120 [ 75 Cal.Rptr.2d 27 ].) Appellant does not contest Marrocco’s expertise, and the expert explained that respondent’s irrigation method was an approved and customary method for avocado growers without access to metropolitan water, and that it had been followed by similar agricultural operations for over three years.^[11] Thus, the burden of production shifted to appellant to present admissible evidence raising a prima facie showing of any triable issue of material fact as to this element. (Aguilar, supra, 25 Cal.4th at p. 850.) Appellant failed to meet this burden.

Reasonableness of the encroaching urban landowner’s conduct is not an element of section 3482.5, and therefore whether appellant’s conduct was reasonable is not material to application of the statute. The pertinent question under the statute is whether the commercial agricultural activity at issue—respondent’s irrigation—is an accepted and customary practice followed by similar operations in the locale. If respondent’s watering practices are unreasonable it would tend to show that they are not accepted or customary. But appellant’s evidence fails to support its assertion. Although appellant’s expert McDonald may suggest respondent’s watering with well water is not customary because “[m]ost avocado farmers in the Riverside and San Diego County customarily use [metropolitan water to irrigate their avocado trees,” he did not address or contradict the testimony of respondent’s grove manager that respondent in fact could not use such water because they have no water meter and could not buy water district water even if they wanted to. As we have pointed out, McDonald did not address the customary irrigation methods for avocado farmers in the locality who use well water. He simply concluded that respondent used a large volume of irrigation water due to the water’s high salinity, without opining whether or not use of such a large volume was reasonable. No evidence contradicts respondent’s expert’s conclusion that respondent’s irrigation practices are customary for avocado farmers in the locale who use well water. Appellant’s evidence provides no basis for us to reverse the trial court’s ruling.