An older case worthy of consideration

[mpallamary]

Does anyone remember this case out of Oakland?

[Warren Smith]

I do remember this case. It was fraught with allegations of improper retracement techniques from non-surveyors. The statements alleging fraud seemed not to have been corroborated or dispensed with through administrative review (BPELS or the Alameda County Surveyor). That they were made by public officials and impacted livelihoods under a claim of immunity is a bit chilling.

It would be interesting to see if this case has been cited in later decisions.

[mpallamary]

I reviewee the original lower court ruling. The old CLSA newsletter wrote about it. And yes, it is chilling!

[Ian Wilson]

Some files for reference...

[Ian Wilson]

a few more

[Ian Wilson]

The Map of Forestland is too big to upload here, but the four sheets are available at the following links:

http://www.acgov.org/MS/SurveyorDocSear ... age%2Ftiff
http://www.acgov.org/MS/SurveyorDocSear ... age%2Ftiff
http://www.acgov.org/MS/SurveyorDocSear ... age%2Ftiff
http://www.acgov.org/MS/SurveyorDocSear ... age%2Ftiff

[mpallamary]

Thanks!

[Ian Wilson]

Citing the case: (most of these are using the analysis of the instructions and of the libel, not the boundary survey).

BTW - this is in the City of Oakland and, other than for Records of Survey or Corner Records, not under the jurisdiction of the Alameda County Surveyor

City of Costa Mesa v. D'Alessio Invs., LLC 214 Cal.App.4th 358 (Cal. Ct. App. 2013)
City of Costa Mesa v. D'Alessio Investments 214 Cal.App.4th 358 (Cal. Ct. App. 2013)
Gallagher v. Connell 123 Cal.App.4th 1260 (Cal. Ct. App. 2004)
Z.F. v. Ripon Unified Sch. Dist. (In re in Reg'l Ctr.) No. 10-cv-00523-TLN-CKD (E.D. Cal. Mar. 31, 2017)
Bradbury v. Superior Court 49 Cal.App.4th 1108 (Cal. Ct. App. 1996)
Van v. City of Oakland Case No. 13-cv-00992-JCS (N.D. Cal. Mar. 3, 2015)
Broadspring, Inc. v. Congoo, LLC 13-CV-1866 (JMF) (S.D.N.Y. Dec. 29, 2014)
Schaffer v. County of San Francisco 168 Cal.App.4th 992 (Cal. Ct. App. 2008)
Integrated v. Fitzgibbons 140 Cal.App.4th 515 (Cal. Ct. App. 2006)
Carver v. Bonds 135 Cal.App.4th 328 (Cal. Ct. App. 2005)
Fashion 21 v. C. for Hum. Im. Rights of L.A 117 Cal.App.4th 1138 (Cal. Ct. App. 2004)
Whiteley v. Philip Morris, Inc. 117 Cal.App.4th 635 (Cal. Ct. App. 2004)
Levy v. City of Santa Monica 114 Cal.App.4th 1252 (Cal. Ct. App. 2004)
Mathew Zaheri Corp. v. New Motor Vehicle Bd. 55 Cal.App.4th 1305 (Cal. Ct. App. 1997)
New Mexico v. McAleenan JB\SCY (D.N.M. Mar. 31, 2020)
Bierman v. Weier 826 N.W.2d 436 (Iowa 2013)
Bierman v. Weier No. 10-1503 (Iowa Jan. 18, 2013)
Sonoma Media Invs., LLC v. Superior Court 34 Cal.App.5th 24 (Cal. Ct. App. 2019)
Brenner v. Hill (Cal. Ct. App. Nov. 21, 2017)
Garai v. Krekorian (In re Marriage of Garai) (Cal. Ct. App. Mar. 14, 2017)
Indus. Waste & Debris Box Serv., Inc. v. Murphy 4 Cal.App.5th 1135 (Cal. Ct. App. 2016)
Panich v. Portney (Cal. Ct. App. Aug. 16, 2016)
Lucas v. Torres (Cal. Ct. App. Nov. 4, 2015)
Spahi v. Stone (Cal. Ct. App. Mar. 18, 2014)
Kell v. Autozone, Inc. (Cal. Ct. App. Feb. 24, 2014)
AC Massage v. City of Palm Desert E055466 (Cal. Ct. App. Sep. 24, 2013)
Robin Singh Educ. Servs., Inc. v. Blueprint Test Preparation, LLC (Cal. Ct. App. Feb. 20, 2013)
Gen. Nanotechnology LLC v. Lawrence Livermore Nat'l Sec. LLC (Cal. Ct. App. Jun. 27, 2012)
Alvarez v. Petersen E052144 (Cal. Ct. App. Jun. 12, 2012)
Jones v. People ex rel. Dep't of Transp. B226430 (Cal. Ct. App. Mar. 8, 2012)
Finke v. Walt Disney Company 110 Cal.App.4th 1210 (Cal. Ct. App. 2003)
Schroeder v. Irvine City Council 97 Cal.App.4th 174 (Cal. Ct. App. 2002)
Melaleuca, Inc. v. Clark 66 Cal.App.4th 1344 (Cal. Ct. App. 1998)

[mpallamary]

Thanks!

[DWoolley]

Ugh, my aching head. I remember reading this case years ago. Of course, it had to be related to land surveying and individual foolishness, consistent like a glove finds a hand.

“Foolishness is more than being stupid, that deadly combination of arrogance and ignorance [and money].” [said someone who probably knew these guys]

Then as now, I can see in my mind’s eye a couple of land surveyors bolstering each other’s courage by reminiscing successfully arguing an extra charge with a contractor “back in ‘92” and ultimately, ridiculously, applying their faux courage to sue the City for defamation.

Not my time, not my money, but justifiably embarrassed for them twenty-five years after the fact. I would bet most anything every honest attorney strongly advised them against filing a defamation lawsuit. Obviously, being no surprise for those familiar with our ilk, these land surveyors ignored the sound legal advice. Silver lining, their folly is memorized for our reading pleasure [thank you?].

Four items I find interesting that are not specifically addressed in the decision, but are clear from the text:

1. Notice the lawsuit was filed against the City of Oakland and did not include the City employees? Public employees are, generally, immune from liability. This is especially true for discretionary duties. Nearly everything a County or City Surveyor would do is “discretionary". A County Surveyor should not be reluctant to call balls and strikes.

2. The combined award of $775,000, in 1998 dollars, would have included the plaintiff’s attorney’s fees and court costs before the appeal. The award gives us an idea of the costs. These two surveyors likely paid out of pocket the attorney’s fees (probably $500k-ish) and the appellate fees (probably another $150k+). It is my understanding attorneys know defamation cases are losers and the award, if any, will not cover the litigation costs - therefore, attorneys will not take a defamation case on contingency.

3. I read the case to passively say the City would have benefitted their defense by reporting these land surveyors to BPELG to further validate their concerns and put forward the idea “Members of the public ‘have an interest in matters which affect their roles as consumers” [citation removed].

4. Truthful critical comments are protected by the First Amendment and the public agency can comment, even in a derogatory manner, as a matter of public concern.

The best defense against a defamation claim is the truth. The second defense is freedom of speech that protects a matter of opinion. This case should embolden anybody and everybody to call out bad land surveying practice and encourage the follow through of reporting the land surveyors to BPELSG.

As a matter of personal experience, I have a vivid recollection of a man pleading poverty, literally crying before a judge, when $70k in attorney’s fees were award after he thought he should sue a land surveyor for slander. Figuratively, the judge slapped his face right off his skull for his poor decision. I don't want to embellish the story, but I believe the attorney may have also been sanctioned.

Tell the truth, offer a qualified opinion, report to BPELSG and worry not.

DWoolley

[Steve Martin]

Correction Dave:

2 Civil Engineers...

[DWoolley]

Thanks, Steve. I stand corrected.

DWoolley

[DWoolley]

From the case:

“In contrast, in the present case, the private aspects of the dispute between respondents [surveying engineers] and the City are overshadowed by the public interest in the outcome of a survey dispute. The allegedly defamatory statements provided information the free flow of which is encouraged by the First Amendment. Further, although the dispute was between the City and a private party, the debate about the validity of respondents’ survey was a matter of public concern and should therefore have been “’uninhibited, robust and wide-open.’” [citation removed]

In sum, we conclude the allegedly defamatory statements at issue in this case pertained to a matter of public interest [boundary establishment]. Therefore, the trial court erred by imposing on the City the burden of proving the allegedly defamatory statements were true.”

As I read it, a person may say defamatory statements about a boundary survey/surveyor, that may or may not be true, with little risk of liability due to the public interest. The public interest being a boundary survey effects adjoining properties and in many instances’ boundaries in an entire block. This is precisely the basis for third party liability, no protection under privity of contract, when boundary surveying.

Ethically, ideally, when criticizing a land surveyor or their work it is best, but not required, if the statements made are true. However, matters of opinion, especially a professional opinion, have latitude under the First Amendment. In my own experience, I have encountered several land surveyors that will not be bothered by facts or truth in their statements. It became apparent when I observed new acquaintances covertly looking at my backside - apparently the rumor was I had a tail.

A land surveyor is best served by considering the source of the criticism, taking stock [or not], and not raising their hackles over another person’s unflattering comments - the ol’ sticks and stones axiom. Choose mad over mad and broke. In the event a person is prone to saying unflattering comments about specific land surveyors and/or their work product follow up by sending the dicey work product to BPELSG in the form of a complaint.

Does anyone see it differently?

Today I have less disdain for the respondents in the referenced case. Their failed lawsuit provides value and guidance for the land surveying community.

DWoolley

[Proud7191]

I reviewee the original lower court ruling. The old CLSA newsletter wrote about it. And yes, it is chilling!

Michael, do you have a copy or link to the newsletter?

Also, The case mentions original sub mons and fact that they were removed. Did I miss something? Were their original mons or not? Or was the City 54 map all that was left to control the sub?
Interesting stuff, thanks for posting, Jp

[mpallamary]

Here it is.

[mpallamary]

Not sure if it came through.

[falcon]

Citing the case: (most of these are using the analysis of the instructions and of the libel, not the boundary survey).

BTW - this is in the City of Oakland and, other than for Records of Survey or Corner Records, not under the jurisdiction of the Alameda County Surveyor

City of Costa Mesa v. D'Alessio Invs., LLC 214 Cal.App.4th 358 (Cal. Ct. App. 2013) ...

@ Ian Wilson how do you find these citations? Do you have a subscription to WestLaw?

[Ian Wilson]

how do you find these citations? Do you have a subscription to WestLaw?

I have a subscription to Casetext. It's not quite at the level of Westlaw or Lexis Nexis, but then again, it's a fraction of the cost. At the risk of appearing to shill for them, https://casetext.com/