Attorneys for Plaintiffs ANNA AVENUE ASSOCIATES, - LLC and JOHN SMITH EARTHWORKS, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA

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1 a. V VINCENT J. BARTOLOTTA, JR., ESQ. (SBN 0) NEAL A. MARKOWITZ, ESQ. (SBN 0) KAREN R. FROSTROM, ESQ. (SBN 00) THORSNES BARTOLOTTA McGUIRE LLP 0 Fifth Avenue, th Floor San Diego, California Tel: () - Fax: () - FILED CIVIL BUSINESS OFFICE CENTRAL DIVISION 0 JAN p : LIt CLERK - SUPERIOR COURT SAN DIEGO COUNTY, CA Attorneys for Plaintiffs ANNA AVENUE ASSOCIATES, - LLC and JOHN SMITH EARTHWORKS, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO, CENTRAL JUSTICE CENTER ANNEX o r; 'E;c", OV-EZZZ o PC EES? <cm Pao z ci) Anna Avenue Associates, LLC, a California LLC and John Smith Earthworks, Inc., v. Plaintiffs, SANDAG, a government agency; San Diego County Regional Transportation Commission, a government agency; City of San Diego, a government agency; Metropolitan Transit System, a government agency; North County Transit District, a government agency; WSP USA, a New York corporation; Kleinfelder Construction Services, a California corporation; DOES - 0, inclusive Case No.: CU-El:CIL UNLIMITED JURISDICTION Trial Date: None set Jury Trial Demanded _/ 0 Defendants. v. Plaintiff Anna Avenue Associates, LLC owns property located at Anna Avenue, adjacent to a public right of way owned by the City of San Diego. Anna leases that property to Plaintiff John Smith Earthworks, Inc. a specialty grading contractor.. Defendant SANDAG is a public agency engaged in planning for, designing and constructing transportation elements in San Diego County.. Defendant San Diego County Regional Transportation Commission was formed to participate in the project as SANDAG's financial arm.

2 SP t. ' SEW Oft' Cf- Lel ". v 0. Defendant City of San Diego is a municipality that owns the Anna Avenue right of way and is responsible for maintaining it in a safe condition.. Defendant Metropolitan Transit System (MTS) is a transportation agency that owns a railway for the San Diego Trolley, adjacent to the Anna Avenue property, including the drainage ditch that it failed to maintain in a working condition.. Defendant North County Transit District (NCTD) is a transportation agency that has obligations to maintain the railway right of way, including the drainage ditch that it failed to maintain in a working condition.. Defendant WSP USA, formerly known as Parsons Brinckerhoff, is a New York corporation with local offices at 0 B Street, Suite, San Diego, was retained to prepare the drainage study and grading calculations.. Defendant Kleinfelder Construction Services, a California corporation, prepared the drainage basin map showing errant tributary areas along Anna Avenue and the west side of the railroad right-of-way.. Plaintiffs do not know the true names and capacity of defendants sued herein as Does -0, Inclusive, and in accordance with the Code of Civil Procedure, therefore it sues these Defendants by the fictitious names of Does -0, Inclusive. Wherever in this complaint it refers to Defendants, such reference shall mean and include the Doe Defendants. Plaintiffs will seek leave of this Court to amend this complaint to set forth the true names and capacities of the fictitious named defendants when their true identifies and capacities become known.. Plaintiffs is informed and believes and based hereon alleges that at all relevant times each Defendant including Does -0 Inclusive was the agent, servant, representative, partner or employee of each co-defendants and doing the things herein alleged was acting in the course and scope of theft authority as such agents, servants, representatives, partners or employees of each of their co-defendants.. The property location was important to Plaintiffs because industrially zoned land in central San Diego is rare and if he cannot operate centrally, he cannot cover the cost of transporting his heavy equipment to his job sites, most of which are located in La Jolla.

3 . When he purchased the property, he found that a neighbor had befouled the brow ditch intended to carry the drainage from his property to the north. VIEW OF OBSTRUCTED DRAINAGE COURSE TID ORTH. Plaintiffs reported the blocked drainage ditch to the City repeatedly. They also regularly reported the flooding that occurred because of the blocked drainage ditch. The unpermited 0 ) blockage impeded the flow of the natural drainage course laeding to the flooding of the property and Anna Avenue. v

4 ANNA AVENUE FLOODING CONDITION FEB., 00 og s: E zc e, =,.., " E a co. z. z (i) Lue,. The City did only one thing in response to these reports every time it flooded, it posted a "Flooded" sign on the dry portion of Anna Avenue. No effort was ever made to repair the drainage ditch or regrade Anna Avenue to eliminate the serious problem. 0 v

5 . As a result of the lack of City action, Plaintiffs retained experts to process the vacation of the end of Anna Avenue so that Earthworks could fix the grading problem without needing the City's help. Below is the area of the street that was sought to be vacated. This section of Anna Avenue is not paved and has never been maintained by the City even though it is a public street. The City agreed with this proposal. L eg a; s= ijo S 'Pe;te, 0 <..F,s Srg;x =- c ) 0 v. Mr. Smith first applied for the street vacation in July 000. At that time, he owned only assessor parcel no The Linda Vista Community Planning Group approved the proposed vacation with no votes in opposition in March 0. In June 00, the City advised Mr. Smith that he could purchase the three lots at issue instead of vacating the street because they were considered "excess property." MTDB was given the right of first refusal to acquire those lots.. In reliance on the City's and MTDB's representations, Mr. Smith engaged a civil

6 sgs, U. <!:.Ing op. b"vs-. th.ecire. Flts < it CO z Enn [ C) 0 U. 0 engineer to evaluate the developability of the consolidated lots. It was during this evaluation that the engineer identified a significant drainage problem, as pictured and described above, within the M'TDB right of way. Mr. Smith then had to retain a hydraulic engineer to analyze the limits of inundation. Once he had completed his investigation, he laid out his plan to acquire the three excess parcels and correct the grading, thus fixing the drainage problem with no expense to the City. Eventually, in January 00, Mr. Smith and the City reached an agreement and Mr. Smith purchase the three parcels, consolidating them with the one he already owned. Plaintiffs began processing plans with the City to solve the drainage problem, collaboratively.. In July 0, SANDAG made its intial offer to purchase a portion of Plaintiffs' property as well as to acquire a temporary construction easement. This put an immediate stop to Plaintiffs' development project, even though the grading permits were able to issue, because SANDAG's work was in the exact area that Plaintiffs needed to perform their grading.. In order to facilitate SANDAG's project, Plaintiffs were required to relocate their equipment yard to a site much less convenient. The City failed to adequately secure that site and Plaintiffs' equipment was damaged as a result. 0. While Plaintiffs were negotiating with SANDAG in an effort to come up with a new solution for the drainage problem, they discovered that SANDAG's water study was defective because it failed to consider any of the drainage west of the railroad track. As such, the drainage facilities planned were inadequate to handle all of the water that needed to be drained, including the stormwater flow and broken pipe flow from Anna Avenue. While SANDAG represented that it was going to help solve the drainage problem, it in fact intended to make it far worse. Despite Plaintiffs' good faith efforts, Plaintiffs were alarmed to arrive at the property to find that SANDAG had built a concrete wall between their property and the drainage ditch. 'If 0

7 I() II - e rc sai r. an czei. o z cnn c o x 0 This wall effectively serves as a dam, leaving the storm drain and broken pipe water with nowhere to go. Clearly, SANDAG never intended to solve the drainage problem.. The lack of drainage renders this entire property undevelopable. When Plaintiffs purchased the three excess parcels, they intended to use them to convert the property to its highest and best use, as is demonstrated by the neighboring properties, for use as a commercial/industrial office building. FIRST CAUSE OF ACTION Inverse Condemnation (Against SANDAG, San Diego County Regional Transportation Commission, City of San Diego, Metropolitan Transit System, North County Transit District). All preceding allegations are incorporated herein by reference.. Plaintiffs own property located at Anna Avenue, San Diego, California.. The above-described conduct deprived Plaintiffs of all economically viable use of their property. This had a negative impact on Plaintiffs economically and interfered with distinct v investment-backed expectations.

8 . Defendant's conduct was not rationally related to a legitimate purpose.. As a result of this conduct, Plaintiffs have been damaged in an amount to be proven at 0 trial. SECOND CAUSE OF ACTION Nuisance (Against the City of San Diego). The above allegations are incorporated herein by reference.. The City failed to maintain the Anna Avenue right of way in a safe and reasonable manner. This failure created a nuisance condition.. An ordinary person would be reasonably annoyed or disturbed by the condition created by the City. misconduct. 0. The serious nature of the harm outweighs any potential social utility of the City's. Plaintiffs did not consent to the City's actions.. The City was a substantial factor in causing Plaintiffs' harm. The amount of harm will be proven at the time of trial. THIRD CAUSE OF ACTION Nuisance (Against MTS and NCTD). The above allegations are incorporated herein by reference.. MTS and NCTD created a condition that is harmful to health and an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property in that its allowed a nuisance condition on the Anna Avenue property that prevented drainage, causing significant damage.. An ordinary person would be reasonably annoyed or disturbed by the condition created by MTS and NCTD.. The serious nature of the harm outweighs any potential social utility of the MTS and NCTD's misconduct.. Plaintiffs did not consent to MTS and NCTD's actions. vi

9 0 - dtp- ravg 0,Vg.FG COO z ten ril kg Q v 0. MTS and NCTD were substantial factor sin causing Plaintiffs' harm. The amount of harm will be proven at the time of trial. FOURTH CAUSE OF ACTION Nuisance (Against SANDAG). The above allegations are incorporated herein by reference. 0. SANDAG created a condition that is harmful to health and an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property in that it has dammed the Anna Avenue property, causing significant damage.. An ordinary person would be reasonably annoyed or disturbed by the condition created by SANDAG. misconduct.. The serious nature of the harm outweighs any potential social utility of SANDAG's. Plaintiffs did not consent to SANDAG's actions.. SANDAG was a substantial factor in causing Plaintiffs' harm. The amount of harm will be proven at the time of trial. FIFTH CAUSE OF ACTION Trespass (Against the City of San Diego). The above allegations are incorporated herein by reference.. Plaintiffs own the property located at Anna Avenue, San Diego, California.. The City intentionally, recklessly or negligently entered Plaintiffs' property by causing its water to drain from its public streets onto Plaintiffs' property.. Plaintiffs did not consent to the entry of the City water.. Plaintiffs were harmed by the City trespass. 0. The City was a substantial factor in causing Plaintiffs' harm. The amount of harm will be proven at the time of trial.

10 SIXTH CAUSE OF ACTION Negligence (Against WSP US). The above allegations are incorporated herein by reference.. WSP US, formerly Parsons Brinckerhoff, was engaged to study and prepare drainage and grading calculations and to prepare track plans and drainage facilities for SANDAG.. WSP had a duty to use reasonable care in performing its work.. WSP breached this duty of reasonable care when it utterly failed to include a major portion of the tributory area in its study.. WSP's breach caused damage to Plaintiffs in that the drainage system it recommended and created is inadequate to take the drainage from Plaintiffs' property. I 0v. WSP's conduct was a substantial factor in causing harm to Plaintiffs. The amount of such harm will be proven at the time of trial. SEVENTH CAUSE OF ACTION Negligence (Against Kleinfelder Construction Services). The above allegations are incorporated herein by reference.. Kleinfelder was engaged to prepare a drainage basin map showing tributary areas along Anna Avenue and the west side of the railroad right of way for SANDAG. Kleinfelder was also retained to prepare plans for the project near Anna Avenue.. Kleinfelder had a duty to use reasonable care in performing its work. 0. Kleinfelder breached this duty by creating a defective map which was inadequate to drain the water from the Anna Avenue property.. Kleinfelder's conduct caused damage to Plaintiffs in that the system it designed failed to protect the Anna Avenue property from floodwaters and also failed to provide a path to drain water from the property.. Kleinfelder's conduct was a substantial factor in causing harm to Plaintiffs. The amount of such harm will be proven at the time of trial.

11 Sia r egg.,,g. irf:la. E c' L PRAYER FOR RELIEF Wherefore, Plaintiffs pray for relief as follows:. An award of damages conforming to proof;. Declaratory relief;. Injunctive relief;. Fees and costs as allowed; and. Such and other relief as deemed appropriate by the Court. Dated: December. 0 By: THORSNES BARTOLOTTA McGUIRE LLP VINCENT J. BARTOLOTTA, JR., ESQ. NEAL A. MARKOWITZ, ESQ. KAREN R. FROSTROM, ESQ. Attorneys for Plaintiffs ANNA AVENUE LLC AND JOHN SMITH EARTHWORKS ta o v 0