"In the furtherance of justice, trial courts may allow amendments to pleadings and if
necessary, postpone trial. . . . Motions to amend are appropriately granted as late as the first
day of trial [citation] or even during trial [citation] if the defendant is alerted to the charges
by the factual allegations, no matter how framed [citation] and the defendant will not be
prejudiced." (Honig v. Financial Corp. of America (1992) 6 Cal.App.4th 960, 965, italics
added; see also P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332,
1345 [noting courts "must apply a policy of liberality in permitting amendments at any stage
of the proceeding, including during trial, when no prejudice to the opposing party is
shown"].)
Here, on this record, we conclude W&W has failed to make an adequate showing of
prejudice, particularly given the court continued the trial for more than 90 days and W&W
was afforded an additional opportunity to conduct discovery, including deposing Fowler a
second time and designating and deposing additional experts. We thus conclude the trial
court did not abuse its discretion under Code of Civil Procedure section 473 when it granted
10
Fowler's motion to amend her answer. (See Bedolla v. Logan & Frazer (1975) 52
Cal.App.3d 118, 135-136 [noting that "[w]hile under section 473 of the Code of Civil
Procedure and the case authorities pertaining thereto the trial court has wide discretion in
allowing the amendment of any pleading [citations], as a matter of policy the ruling of the
trial court in such matters will be upheld unless a manifest or gross abuse of discretion is
shown"]; see also Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945 [noting a court
should grant a motion to amend a pleading to state a legal theory not previously pleaded, but
related to the same general set of facts as the previously pleaded theories, if the opposing
party would not be prejudiced by the amendment].)
II
Section 3482.5
A. Guiding Principles
Subdivision (a)(1) of section 3482.5 provides: "No agricultural activity, operation, or
facility, or appurtenances thereof, conducted or maintained for commercial purposes, and in
a manner consistent with proper and accepted customs and standards, as established and
followed by similar agricultural operations in the same locality, shall be or become a
nuisance, private or public, due to any changed condition in or about the locality, after it has
been in operation for more than three years if it was not a nuisance at the time it began."
11
Subdivision (e) of section 3482.5 defines the term "agricultural activity, operation, or
facility, or appurtenances thereof" to "include, but not be limited to, the cultivation and
tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any
agricultural commodity including timber, viticulture, apiculture, or horticulture, the raising
of livestock, fur bearing animals, fish, or poultry, and any practices performed by a farmer or
on a farm as incident to or in conjunction with those farming operations, including
preparation for market, delivery to storage or to market, or delivery to carriers for
transportation to market."
"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.)
This court in Rancho Viejo v. Tres Amigos Viejos (2002) 100 Cal.App.4th 550
(Rancho Viejo) upheld the grant of summary judgment in favor of the defendant avocado
farmer after irrigation water from its farm allegedly caused property damage to the plaintiff
residential developer. There, a landowner owned 500 acres of real property in North
12
San Diego County. In 1997, the landowner sold to the plaintiff a portion of this real property
for residential development (lower property). The landowner retained ownership of the
adjacent property, which contained an orange grove and an avocado grove consisting of
about 6,600 trees that, since the mid-1970's, had been commercially farmed on a continuous
basis (upper property). (Id. at pp. 555-556.)
In 1998, the landowner sold the upper property to the defendant, whose business
consisted only of commercial avocado farming. The defendant continued to irrigate the
upper property "in a manner identical to the way it was irrigated before its purchase."
(Rancho Viejo, supra, 100 Cal.App.4th at p. 557.) However, in mid-1999, after the plaintiff
had completed grading on the lower property, the plaintiff "discovered water cascading and
seeping from the cut slopes in various lots as a result of [the defendant's] irrigation of the
upper property, causing damage to and destabilization of the slope. [The plaintiff] requested
[the defendant] solve the problem by either reducing its irrigation or installing water control
systems to prevent the runoff." (Ibid.) When the defendant refused, the plaintiff installed a
subdrain system and sued the defendant for trespass and nuisance, seeking damages and
injunctive relief. (Ibid.)
Relying in part on Souza, the Rancho Viejo court concluded that section 3482.5 barred
the plaintiff's nuisance and trespass causes of action. (See Rancho Viejo, supra, 100
Cal.App.4th at p. 557.) In so doing, the court recognized that the owner of the lower
13
property "does not, nor could it reasonably, argue that irrigation is not an agricultural activity
or operation." (Id. at p. 560.)
The court in Rancho Viejo rejected the contention of the owner of the lower property
that section 3482.5 applied only to a cause of action for nuisance and not to a cause of action
for trespass: "Construing the statute in light of its legislative purpose compels us to reject a
narrow reading that would turn upon the pleaded theory of liability, and adopt a reading that
would further the preservation of ongoing, standard agricultural practices. If commercial
agricultural activity qualifies as a nuisance and otherwise falls within section 3482.5, a
plaintiff cannot avoid the immunity provided by the statute by simply recharacterizing or
relabeling the conduct in the guise of trespass to bring it outside the ambit of the statute.
This was implicitly recognized by the court of appeal in Souza, supra, 59 Cal.App.4th 865,
where the trial court treated a complaint alleging causes of action for negligence and
unlawful business practices in violation of Business and Professions Code section 17200 et
seq. as in fact based on a theory of nuisance because they alleged the violation of a single
primary right, 'i.e., plaintiffs' right to the unimpaired ownership and undisturbed enjoyment
of their premises.' (Souza, at p. 870.) Souza involved irrigation, the very agricultural
activity involved here, except as to rice crops. For approximately five years, the parties,
commercial farmers with bordering farm lands, farmed rice on their land. (Id. at p. 869.)
After the plaintiffs shifted to planting row crops, they noticed when defendants' rice fields
were flooded, the portion of their land closest to the defendants' became so wet that it could
14
not be farmed. (Ibid.) The plaintiffs sued defendants, seeking an injunction and damages for
negligence and unfair business practices, and the defendants successfully moved for
summary judgment on the ground plaintiffs' lawsuit was barred by section 3482.5. (Souza, at
pp. 870-871.) The issue before the appellate court in Souza was whether the statute applied
to an action against a commercial entity by another commercial entity as opposed to a non-
agricultural plaintiff; the court concluded the statute's language was unambiguous and
broadly applied to such circumstances. (Souza, at pp. 873-874.)
"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. 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." (Rancho Viejo, supra, 100 Cal.App.4th at pp. 563-
564, fn. omitted.)
15
The lower property owner in Rancho Viejo contended that section 3482.5 did "not
apply to situations where a farmer subdivides his or her land and initiates the urbanization of
portions of the property but continues to conduct agricultural activities on the remainder."
(Rancho Viejo, supra, 100 Cal.App.4th at p. 565.) The Rancho Viejo court refused to
address this "broad question" and instead focused on the facts in the record showing that
while the landowner initially "sold the upper and lower properties cognizant of the lower
property's possible urbanization, in fact it was the appellant that took the steps to begin mass
urban development, initiating the feasibility study for the proposed residential development
even before it purchased the lower property. It is further undisputed that it was the appellant
who, after purchasing the lower property, removed orange groves that had been present for at
least 30 years and excavated the cut slopes. Appellant admitted that before excavation, that
property 'was used for the agricultural purpose of a commercial orange grove.' By virtue of
these acts, appellant changed the condition of the lower property. Importantly, it is
undisputed that the water intrusion problems occurred at the location of the slopes, and
appellant has failed to contradict with any competent evidence the fact that its nuisance cause
of action—seeking damages resulting from the water intrusion—did not accrue until it
graded the slopes below the respondent's avocado grove. Finally, appellant fails to present
competent evidence disputing the fact that respondent has not changed the watering practices
16
of the upper property that had been in place since at least 1982.[2]" (Rancho Viejo, supra,
100 Cal.App.4th at pp. 565-566, italics added.)
The Rancho Viejo court also rejected the contention of the lower property owner that
a triable issue of fact existed regarding the " 'reasonableness' of the parties' respective actions
under the 'Civil Law Rule' expressed in Keys v. Romley (1966) 64 Cal.2d 396, 409-410.[3]"
2 "Respondent submitted the declaration of Salvador Munoz, who began working on the upper property in 1975 and who at the time of the motion was the person in charge of watering the avocado groves on the upper property. He averred he has been involved in watering the avocado groves since 1982 and that the grove has been irrigated since then on a regular basis. Munoz continued: 'The amount of water varies depending on the temperature, rainfall, and needs of the trees. The only thing that has changed is who pays my paycheck. Today I am still in charge of watering [the upper property], and we do nothing different than we did in the past.' In an attempt to counter that fact, respondent submitted the deposition testimony of Walter George, who stated he observed more surface water coming off the avocado groves from the upper property in 1999 than he had in 1998, when appellant was conducting grading operations. George's testimony does not address the watering practices of the upper property; indeed he indicated during the deposition that he had 'no idea' of respondent's watering schedule. His testimony does not raise a disputed issue as to the fact respondent's watering practices, which may vary as a result of certain conditions including rainfall, are in any event consistent with watering practices that have been conducted since 1982."
3 "In Keys v. Romley, the court explained that under this rule, 'the owner of an upper, or dominant, estate is entitled to discharge surface water from his land as the water naturally flows. As a corollary to this, the upper owner is liable for any damage he causes to adjacent property by the discharge of water in an unnatural manner. In essence, each property owner's duty is to leave the natural flow of surface water undisturbed.' (Keys v. Romley, supra, 64 Cal.2d at pp. 405-406; see also Gdowski v. Louie (2000) 84 Cal.App.4th 1395, 1402.) However, in areas that are both rural and urban, the court held a modified rule should be applied that focuses on the reasonableness of each parties['] conduct. (Keys v. Romley, 64 Cal.2d at pp. 408-409.) Subsequent cases have summarized the rules laid down in Keys v. Romley as follows: ' "1. If the upper owner is reasonable and the lower owner unreasonable, the upper owner wins; 2. If the upper owner is unreasonable and the lower owner reasonable, the lower owner wins; and 3. If both the upper and lower owner are reasonable, the lower 17
(Rancho Viejo, supra, 100 Cal.App.4th at pp. 569-570.) Specifically, the owner of the lower
property argued "it acted reasonably because it consulted with engineering specialists to
determine the property's suitability for development, but respondent 'has not acted
reasonably in the use of its property because it is applying excessive amounts of water to its
property, causing surface water to run onto the property of Appellant.'
"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. . . . 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." (Rancho Viejo, supra, 100 Cal.App.4th at p. 570.)
B. Analysis
Although the issue in Rancho Viejo involved irrigation water flowing onto the
property of another that the owner of that property claimed was a nuisance and/or a trespass,
while the instant case involves heavy rainwater from a storm that caused soil and water
owner wins also." ' (Gdowski v. Louie, 84 Cal.App.4th at p. 1404, quoting Burrows v. State of California (1968) 260 Cal.App.2d 29, 32-33.) 18
allegedly from the lemon grove to run onto and damage the W&W property, we nonetheless
conclude certain principles from Rancho Viejo provide guidance on remand to the parties in
the instant case.
First, we agree with Rancho Viejo that the conduct of an "encroaching" landowner
(i.e., W&W in the instant case) is not an element of section 3482.5. (Rancho Viejo, supra,
100 Cal.App.4th at p. 570.) Thus, whether W&W acted unreasonably (and perhaps got what
it deserved, as Fowler suggested at trial and throughout its briefing in this court) in not
installing a concrete drainage ditch to protect the home it built from storm water damage is
irrelevant to the issue of whether section 3482.5 applies in this case.
Second, unlike the issue in Rancho Viejo where there was no dispute that "[i]rrigation
is an ongoing operation in commercial farming generally, and was regularly conducted . . .
according to the undisputed testimony of respondent's irrigation worker" (Rancho Viejo,
supra, 100 Cal.App.4th at p. 564), in the instant case there is a dispute between the parties
regarding whether the "activity" on and/or "operation" of the lemon grove by Fowler that led
to the damage on the W&W property (as alleged in its operative complaint) was an
"agricultural activity, operation, or facility or appurtenance thereof" for purposes of section
3482.5. Thus, on remand the activity and/or operations alleged to be the nuisance should be
defined for the jury in order for it to determine whether section 3482.5 applies.
19
Moreover, we note in Rancho Viejo the court defined the nuisance not as the existence
of the avocado grove itself, but rather as the intrusion of water onto the plaintiff's graded
property from the defendant's irrigation of the avocado groves. (See Rancho Viejo, supra,
100 Cal.App.4th at p. 566.) However, in the instant case the nuisance was not defined for
the jury, and the record shows there was substantial disagreement between the parties
throughout the trial, including in closing argument, regarding what exactly was the nuisance
in this case. On remand, the nuisance should be defined for the jury in connection with its
determination of whether section 3482.5 applies.
Third, the Rancho Viejo court specifically noted that the "pertinent question" under
section 3482.5 was "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." (See Rancho Viejo, supra, 100 Cal.App.4th at p. 570.)
Here, as noted, the jury expressly found in the special verdict that Fowler was
unreasonable in the ownership and control of her property (i.e., the lemon grove) and that her
unreasonable conduct caused W&W to incur damages of about $350,000. As recognized by
Rancho Viejo (albeit in dictum), that finding suggests Fowler did not operate and maintain
her agricultural operation or facility (i.e., the lemon grove) "in a manner consistent with
proper and accepted customs and standards" (§ 3482.5, subd. (a)(1)) as required by the
statute.
20
To avoid what we conclude amounts to an inconsistent special verdict requiring
reversal (see Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 287, 303 [noting a special
verdict's correctness is subject to de novo review]; City of San Diego v. D.R. Horton
San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 682 [noting an "appellate court is
not permitted to choose between inconsistent answers"]), on remand the issue of whether
section 3482.5 applies should be decided first, before the jury reaches the issue of
negligence/comparative fault of the parties.
DISPOSITION
The judgment is reversed, and the matter is remanded for a new trial on the issue of
liability and damages. In the interests of justice, both parties shall bear their own costs on
appeal.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
McINTYRE, J.
21
AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not abuse its discretion in allowing the defendant to amend her answer to assert a Right to Farm Act defense, but reversed the judgment because the special verdict was hopelessly inconsistent regarding the application of that statute. The case was remanded for a new trial to properly define the alleged nuisance and determine if it constitutes an agricultural activity under Civil Code section 3482.5.
Issues
Did the trial court abuse its discretion by allowing the defendant to amend her answer on the day of trial to assert a Civil Code section 3482.5 defense?
Is the jury's special verdict, which found both negligence and the application of the Right to Farm Act, irreconcilable?
Must the specific activity alleged to be a nuisance be defined for the jury to determine if it qualifies as an 'agricultural activity' under section 3482.5?
Disposition. reversed
Quotations verified verbatim against the opinion
“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.”
“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 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.”