Full opinion text
MEMORANDUM OPINION AND ORDER RE: WESTLANDS WATER DISTRICT’S MOTION TO DISMISS AND FEDERAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND JUDGMENT ON THE PLEADINGS WANGER, District Judge. This matter comes before the Court based on motions made by two sets of defendants named in Plaintiffs’ “Second Amended Complaint For Equitable and Monetary Relief,” filed on February 18, 1992. Westlands Water District (“Westlands”) seeks dismissal of Plaintiffs’ Second Amended Compliant pursuant to Fed.R.Civ.P. 12(b). The “Federal Defendants,” consisting of the Bureau of Reclamation, the Department of the Interior and the United States, seek partial summary judgment and judgment on the pleadings. Hearings on the motions were held on April 16 and 19,1993. Plaintiffs were represented by William M. Smiland, Esq. and Theodore A. Chester, Jr., Esq. Westlands was represented by Thomas W. Birmingham, Esq. The Federal Defendants were represented by Daniel Bensing, Esq. All arguments made by the parties have been considered. I. STANDARDS FOR REVIEWING MOTIONS TO DISMISS; FOR JUDGMENT ON THE PLEADINGS; AND FOR SUMMARY JUDGMENT A motion to dismiss for failure to state a claim under F.R.C.P. 12(b)(6) “is viewed with disfavor and is rarely granted.” Hall v. City of Santa Barbara, 833 F.2d 1270, 1274 (9th Cir.1986), cert. denied, 485 U.S. 940, 108 S.Ct. 1120, 99 L.Ed.2d 281 (1988) (quoting 5 C. Wright & A. Miller, Federal Practice & Procedure, Civil § 1357, at 598 (1969)). “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). In deciding a motion to dismiss, the court “must accept as true all material allegations in the complaint and construe them in the light most favorable to” the plaintiff. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986). Yet, the court need not accept as true allegations that contradict facts which may be judicially noticed. Mul-lís v. United States Bank Ct., 828 F.2d 1385, 1388 (9th Cir.1987), cert. denied, 486 U.S. 1040, 108 S.Ct. 2031, 100 L.Ed.2d 616 (1988). For example, the court may consider matters of public record including pleadings, orders, and other papers filed with the court or records of administrative bodies. Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir.1986). The court need not accept conclusory allegations, nor unreasonable inferences or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981), cert. denied, 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981). In addition, the court may disregard allegations in the complaint if contradicted by facts established by exhibits attached to the complaint. Duming v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.1987). A Rule 12(c) motion challenges the legal sufficiency of the opposing party’s pleadings. Judgment on the pleadings is appropriate when, even if all material facts in the pleading under attack are true, the moving party is entitled to judgment as a matter of law. Hal Roach Studios v. Richard Feiner & Co., 883 F.2d 1429, 1436 (9th Cir.1989). The court must assume the truthfulness of the material facts alleged in the complaint. All inferences reasonably drawn from these facts must be construed in favor of the responding party. General Conference Corp. of Seventh-Day Adventists v. Seventh Day Adventist Congregation Church, 887 F.2d 228, 230 (9th Cir.1989), cert, denied, 493 U.S. 1079, 110 S.Ct. 1134, 107 L.Ed.2d 1039 (1990). Summary judgment is appropriate only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A genuine issue of fact exists when the non-moving party produces evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. Anderson v. Liberty Lobby, 477 U.S. 242, 252-56, 106 S.Ct. 2505, 2512-14, 91 L.Ed.2d 202 (1986). The non-moving party cannot simply rest on its allegation without any significant probative evidence tending to support the complaint. Id. at 249, 106 S.Ct. at 2510. Evidence submitted in support of or in opposition to a motion for summary judgment must be admissible under rules governing admission of evidence generally. Hal Roach Studios, 883 F.2d at 1437. The more implausible the claim or defense asserted by the opposing party, the more persuasive its evidence must be to avoid summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587,106 S.Ct. 1348,1356, 89 L.Ed.2d 538 (1986). Nevertheless, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in its favor.” Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513. The Court’s role on summary judgment, however, is not to weigh the evidence, i.e., issue resolution, but rather it is issue finding. Id. II. WESTLANDS’ MOTION TO DISMISS Plaintiffs summarize claims made against Westlands Water District as follows: The second claim (¶¶ 126-131) seeks declaratory and injunctive relief with respect to fourteen controversies (¶ 128(a)-(n)) concerning Westlands’ duties owed to Plaintiffs, including its alleged duties under the 1963 Service Contract, the 1965 Repayment Contract, the 1965 merger of the former West-plains district into and with the original Westlands district, and the 1986 Stipulated Judgment, and as a fiduciary of Plaintiffs. The seventh claim (¶¶ 162-177) seeks tort damages and equitable relief for claims sounding in negligence, trespass, nuisance, failure to discharge mandatory duties, and dangerous condition of public property. The eighth claim (¶¶ 178-184) alleges that Westlands has breached the 1963 Service Contract, the 1965 Repayment Contract, the contracts relating to the merger of the former Westplains and the original Westlands, and the 1986 Stipulated Judgment, and seeks money damages and appropriate equitable relief for such breaches. The ninth claim (¶¶ 185-195) asserts that Westlands has taken, and damaged, Plaintiffs’ property for public use, but has failed to pay them just compensation as required by the California and United States Constitutions. The property alleged to have been taken includes flowage or easement's upon, and contract and statutory rights appurtenant to, Plaintiffs’ lands. A. Claims for Declaratory and Injunctive Relief The second claim for relief seeks declaratory and injunctive relief as to fourteen alleged controversies between Plaintiffs and Westlands. Westlands seeks dismissal of four of these subclaims. Westlands contends the claims alleged contained in paragraphs 128(c), 128(e), 128(f), and 128(j) are barred by the doctrine of res judicata because each of these subclaims either was asserted or could have been, asserted in the Barcellos litigation which resulted in the 1986 Stipulated Judgment. Paragraph 128(c) alleges that Westlands breached its duties under the 1963 Service Contract in failing to construct drainage works. 128(e) alleges that Westlands violated its duties to, and the rights of, Area I landowners and water users arising from the 1965 merger with Area II. It specifically alleges that funds appropriated for construction of the drain and collector system were diverted by Westlands to build the water delivery distribution system in Area II. Paragraph 128(f) alleges that Westlands has breached a fiduciary duty as created by California law by failing to honor the drainage rights of Area I which are senior to the delivery rights of Area II. Paragraph 128(j) alleges that Area I landowners and water users are entitled to stop paying fees for drainage service and to recover past payments. These payment obligations arise under the 1963 Service Contract, the 1965 Repayment Contract, and the 1986 Stipulated Judgment. Paragraph 86 of the complaint alleges that paragraphs 14.1,14.7, and 15 of the Barcellos Judgment expressly provide that the stipulated dismissal did not affect claims regarding drainage. These provisions of the Judgment state, in pertinent part: 14.1. Notwithstanding this Judgment and the parties’ voluntary dismissal of all claims for relief pleaded in these present actions, the claims for relief pleaded in these present actions, the claims described in ... Paragraphs Ij.l.S through lj.1.8 below are not affected by this Judgment. 14.1.7 Any claim of any landowner or water user against the District arising out of or relating to [the April 3, 1985 Agreement], drainage service, or Drainage Service facilities. 15. Past Contracts, Water Allocation and Pricing. All parties have voluntarily dismissed with prejudice all claims for relief pleaded in these actions arising out of any Interim Contract, [the April 3,1985 Agreement], any Internal Allocation Rule or any Internal Pricing Rule ... Notwithstanding the foregoing, any landowner or water user may assert in any other action any claim for relief referred to in Paragraph It. 1.6 and It. 1.7. above and seek any remedy provided by law with respect thereto. (emphasis added). In its reply brief, Westlands appears to concede Plaintiffs’ point. It states, “[t]he claims of plaintiffs against the District arising out of the April 3, 1985 Agreement, or relating to drainage service or drainage service facilities are not barred by res judicata principles. Under paragraphs 14.1, 14.1.7 and Article 15 of the Barcellos Judgment, such claims are not affected by the Judgment.” Westlands’ Reply at 34-35. Yet Westlands then inexplicably argues that the subclaims in question must be dismissed because, “Barcellos determined the rights of Area I landowners under the Merger Law and all claims for relief asserted in that action based upon the Merger Law are barred by principles of res judicata.” Id. To the extent Westlands’ argument is comprehensible, it must be rejected, as Paragraphs 14.1.7 and 15 of the Barcellos Judgment explicitly allow Plaintiffs to seek any remedy under any cause of action regarding drainage. All four subclaims seek declaratory relief regarding Plaintiffs’ right to drainage. That the subclaims revolve around matters also at issue in the Barcellos Judgment, e.g., the 1963 Contract and the 1965 merger, does not alter the nature of these subelaims concerning drainage. Westlands’ strongest argument centers around subclaims 128(e) and 128(j), which concern drainage funding and fees, rather than drainage per se. The language of Paragraph 14.1.7 is expansive enough to cover a dispute about the financial aspects of drainage rights. Westlands cites no language in the Judgment to contradict such an interpretation. The motion to dismiss as to these claims must be denied. B. Tort Claims The complaint seeks tort damages and equitable relief for claims sounding in negligence, trespass, nuisance, failure to discharge mandatory duties, and dangerous condition of public property. The core of Plaintiffs’ injury claim is succinctly stated in paragraph 163: “Plaintiffs’ soil has been rendered barren by excess salt. Plaintiffs’ crops have been killed by water inundating the root zone.” 1. Discretionary Immunity Westlands contends that it is statuto- • rily immune from Plaintiffs’ tort claims as all of the alleged acts were performed within the discretionary power of its Board of Directors. The liability of state governmental entities for tort claims flows from the California Tort Claims Act, California Government Code §§ 810 et seq. Section 815 provides that a public entity is not liable for injury arising out of an act or omission except as provided by statute. It also provides for the existence of statutory immunities. California Government Code section 820.2 states: Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused. Section 815.2 of the Government Code provides, in relevant part: Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability. Thus, if Westlands’ board members would be entitled to immunity under § 820.2, so is Westlands itself. See Wallace v. City of Los Angeles, 12 Cal.App.4th 1385, 16 Cal.Rptr.2d 113 (1993). As a preliminary matter, Plaintiffs cite Lopez v. Southern California Rapid Transit District, 40 Cal.3d 780, 221 Cal.Rptr. 840, 710 P.2d 907 (1985), for the proposition that Westlands’ claim to discretionary immunity cannot be resolved on a motion to dismiss. In Lopez, a public corporation, which provided municipal bus service, argued that its bus driver’s refusal to protect passengers from an assault by fellow riders was a decision entitled to discretionary immunity. The case does not state that a demurrer could not be sustained as a matter of law, but rather that the trial court erred in dismissing the case given the absence of facts regarding the driver’s motivation and authority. Id. at 794, 221 Cal.Rptr. 840, 710 P.2d 907. After Lopez, California appellate courts have affirmed dismissals based on a finding of discretionary immunity. See Alicia T. v. County of Los Angeles, 222 Cal.App.3d 869, 271 CaLRptr. 513 (1990) (affirming dismissal based on social worker’s investigation of child abuse, since, as with prosecutor, task is discretionary, not ministerial); Land Waste Management v. Contra Costa County Bd. of Supervisors, 222 Cal.App.3d 950, 271 Cal. Rptr. 909 (1990) (affirming dismissal of tort claims made against county board since adoption or refusal to adopt enactment and failure to issue or deny permit are discretionary tasks); see also Arvo Van Alstyne, California Government Tort Liability Practice, § 2.113 (3d ed: 1992) (“A defense of statutory immunity may properly be asserted by demurrer or motion for judgment on the pleadings in an appropriate case”). Lopez is helpful, however, in summarizing the holding of the leading case interpreting section 820.2, Johnson v. State of California, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968): In [Johnson], this court rejected a purely semantic approach to determining whether a given act is discretionary or ministerial, noting that any act, no matter how ministerial, involves some degree of “discretion” and judgment in the literal sense of those words. Instead, the Johnson court looked to the policy considerations underlying the grant of immunity for discretionary acts. The court concluded that section 820.2 confers immunity only with respect to those “basic policy decisions” which have been committed to coordinate branches of government, and does not immunize government entities from liability for subsequent ministerial actions, taken in the implementation of those basic policy decisions. This distinction is sometimes characterized as that between the “planning” and the “operational” levels of decision-making.... Section 820.2 provides immunity only for the acts or omissions that are “the result of the exercise of the discretion” vested in a public employee. Therefore, the court in Johnson held that to avail itself of the discretionary immunity provided in section 820.2, a public entity must prove that the employee, in deciding to perform (or not to perform) the act which led to plaintiffs injury, consciously exercised discretion in the sense of assuming certain risks in order to gain other policy objectives. “[T]o be entitled to immunity the state must make a showing that such a policy decision, consciously balancing risks and advantages, took place. The fact that an employee normally engages in ‘discretionary activity’ is irrelevant if, in a given case, the employee did not render a considered decision.” Lopez, 40 Cal.App.3d at 793-94, 221 Cal. Rptr. 840, 710 P.2d 907 (citations omitted, emphasis in original). Paragraphs 166 through 168 of the complaint allege the following acts and omissions: (1) The District misinterpreted the duties created under the 1985 Agreement. (2) The District failed to diligently challenge the legality of the SWRCB Orders and abandoned any challenge to the SWRCB Orders. (3) The District assumed the correctness of the opinion of the Federal Defendants under the Migratory Bird Treaty Act and ignored the incorrectness of the opinion. (4) The District participated in the closing of the As-Built Drainage Collector System and the As-Built San Luis Drain. (5) The District negligently performed its duty under the 1963 Service Contract to construct works necessary to protect the ir-rigability of plaintiffs’ lands. (6) The District negligently performed its duty under the 1965 Repayment Contract to accept the care, operation, and maintenance of the intra-district systems. (7) The District negligently carried out its fiduciary duties to plaintiffs. (8) The District negligently performed its duties under the Barcellos Judgment by failing to spend money with care for any drainage purpose, wasting $8,000,000 on unproductive studies and experiments, and in failing to cooperate in the development of a drainage plan. (9) The District negligently focused on irrigating Area II, rather than draining Area I, by continuing water deliveries to most parts of Area II and initiating the $98,000,-000 project. Plaintiffs’ allegations can be further summarized as focused on two events: 1) The water district’s decision to enter into the April 3, 1985 Agreement, which resulted in the closure of the San Luis Drain and blockage of the collector system while delivery of irrigation water was continued; and 2) The water district’s decision to fund projects which failed to provide drainage but instead promoted the increased delivery of irrigation water. The alleged acts of the Westlands’ Board fall squarely within the immunity provided under section 820.2, as interpreted by California courts. Westlands is vested by state law with the authority to enter agreements and make funding decisions. See, e.g., Cal. Water Code § 35851 (authorizing the district to enter into contracts with the United States, “as the Board deems proper, advisable or in the interests of the district”); §§ 36455, 36455.2 (authorizing the district “in the discretion of the board of directors” to acquire and construct various works, and provide funding by levying assessments and issuing bonds). The alleged decisions made by the Board, the district’s legislative body, were purely discretionary. The Board’s determination that it was better to agree to block existing drainage facilities than to risk losing both drainage and irrigation water delivery service in a legal battle with the State and the federal government was a “basic policy decision” which it was authorized to make. The decision to fund one project instead of another is similarly a purely legislative concern. Section 820.2 makes these policy decisions unreviewable by the judicial branch. Allegations that these decisions were unwise, or even an abuse of the Board’s discretion, do not diminish Westlands’ entitlement to discretionary act immunity. Plaintiffs cite to Sandrini Brothers, Inc. v. Voss, 7 Cal.App.4th 1398, 9 Cal.Rptr.2d 763 (1992), in which the court held that the Director of California’s Department of Food and Agriculture was not immune under § 820.2 for damages suffered by a property owner resulting from a wrongful seizure of crops. The Director had acted pursuant to a state statute which provided that he may order contaminated crops seized. The court held that “[a] broad policy or planning decision is not involved” in the Director’s choice as how to handle the crops. Id. at 1408, 9 Cal.Rptr.2d 763. Whether to seize the crops or choose an alternate course of action was merely a ministerial decision. Id. Here, the difficult and well-debated decisions to settle ongoing litigation by choosing to block drainage in exchange for continued water delivery and to fund delivery programs while allegedly abandoning the drainage program implicate broad policy choices rather than merely ministerial functions. Westlands has provided the minutes of the Board meetings, which may be judicially noticed as public records in a motion to dismiss. The minutes confirm that these decisions are of the type contemplated in Johnson. “[T]o be entitled to immunity the state must make a showing that such a policy decision, consciously balancing risks and advantages, took place.” Johnson, 69 Cal.2d at 795, 73 Cal. Rptr. 240, 447 P.2d 352. The Board was aware prior to the April 3, 1985 Agreement that its access to irrigation water was threatened. At a March 18, 1985 Board meeting, President Jack Stone commented on ongoing negotiations with the Department of the Interior: Interior Secretary Donald Hodel has instructed his people to try to find a way to continue irrigation water service in the drainage service area of Westlands during the 1985 season. Westlands is very hopeful that agreement will be reached at the Sacramento meeting, which was arranged by Congressman Tony Coehlo. At the same time, the primary responsibility of the District is to its landowners and farmers who face bankruptcy and financial ruin if irrigation water is terminated. Consequently, the Board has authorized District staff to continue preparing appropriate legal action to maintain water deliveries to be filed in the event agreement cannot be reached at the Sacramento meeting today. Minutes of March 18, 1985, Ex. 11, West-lands’ Supplemental Request for Judicial Notice. The Board was also apprised of the “risks and advantages” involved in its later decision to plug the drainage collector system. In responding to criticism of the plan, William Johnston made the following statement on behalf of Westlands: ... Westlands is very much aware of the potential impacts if the 42,000-acre drainage service area were to go out of production. In fact, those adverse impacts were a primary reason the District entered into the April 3, 1985, Agreement with the Department of the Interior. Had it not been for that agreement, irrigation water deliveries would have ceased, agricultural production would have been drastically reduced, if not eliminated during 1985 and those adverse impacts would have long since occurred. We do not believe that plugging, the drains will cause any significant loss of agricultural production for at least five, and perhaps ten years. Therefore, we do not expect that the impacts presented as a “worst case scenario” in the [environmental impact report] will actually occur, if it can find an economical and environmentally safe means to dispose of subsurface drainage. At the same time, the District finds the 'prospect of plugging the drainage system extremely distasteful and is only proposing this action because of the firm, commitment to terminate the drainage flows by June SO, 1986, and because all other efforts have not and very likely cannot eliminate drainage flows. December 16, 1985 Minutes (emphasis added), Ex. 12, Westlands’ Supplemental Request for Judicial Notice. The minutes also demonstrate that funding decisions were discussed by the Board. See, e.g., August 18, 1986 Minutes, Ex. 13, West-lands’ Supplemental Request for Judicial Notice (discussing decision to fund experimental alternate drainage plans); February 23, 1989 Minutes, Ex. 13, Westlands’ Supplemental Request for Judicial Notice (discussing funding of “Prototype Deep Well Injection Project”). Westlands has met its burden of establishing that the Board, in deciding to act in a manner which led to Plaintiffs’ alleged injury, “consciously exercised discretion in the sense of assuming certain risks in order to gain other policy objectives.” Lopez, 40 Cal.3d at 794, 221 Cal.Rptr. 840, 710 P.2d 907. A determination that immunity exists under § 815.2 does not extinguish all of Plaintiffs’ tort claims. The court in Bradford v. State of California, 36 Cal.App.3d 16, 21, 111 Cal.Rptr. 852 (1973) held: [T]he fact that derivative liability under section 815.2 may be nullified by an employee immunity in no way affects direct liability based on section 815.6. Such liability could only be negatived by a statutory entity immunity. We know of none, (citation and footnote omitted). Plaintiffs’ claim under Government Code section 815.6 for breach of a mandatory duty survives, regardless of any decision as to discretionary act immunity. Plaintiffs’ tort claim for dangerous condition of public property, based on Government Code section 835, is similarly unaffected by discretionary act immunity. See Arvo Van Alstyne, California Government Tort Liability Practice, § 2.12 (3d ed. 1992) (“the provisions of the Act imposing liability for dangerous conditions of public property are manifestly designed to be applied without reference to the discretionary immunity rule”) (citing by implication, Baldwin v. State of California, 6 Cal.3d 424, 99 Cal.Rptr. 145, 491 P.2d 1121 (1972). Plaintiffs cite Nestle v. City of Santa Monica, 6 Cal.3d 920, 101 Cal.Rptr. 568, 496 P.2d 480 (1972) for the additional proposition that statutory immunity pursuant to § 815.2 has no impact on their nuisance claim. Yet, Nestle simply states that a cause of action for nuisance against a governmental entity arises outside of the Tort Claims Act, specifically under Civil Code section 3479. That is, tort liability can exist even where section 815 appears to grant general immunity to government entities for any tort not named within the Tort Claims Act. Nestle does not hold that specific statutory immunities found within the Tort Claims Act are inapplicable to a nuisance claim. See Arvo Van Alstyne, California Government Tort Liability Practice, § 3.110 (3d ed. 1992) (“While the general immunity of [section 815] does not bar nuisance actions against public entities to the extent that such actions are founded on [section 3479] or other statutory provisions, the statutory immunities provided in the Tort Claims Act may be applicable as defenses to the public entity when sued on a nuisance theory”). In Mikkelsen v. State of California, 59 Cal.App.3d 621, 130 Cal.Rptr. 780 (1976), the use of the statutory immunity provided under Government Code section 830.6 was upheld in a nuisance suit. Plaintiffs provide no case holding that discretionary act immunity, as provided under section 820.2, is not similarly applicable to defend against a nuisance claim. The result of applying the discretionary act immunity statute to Plaintiffs’ tort claims is that all allegations sounding in negligence, trespass, and nuisance must be dismissed with prejudice. The claims for failure to discharge a mandatory duty and dangerous condition of public property remain to be analyzed. 2. Breach of Mandatory Duty Claim Government Code § 815.6 provides that: Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty. Thus, a three-pronged test must be satisfied to establish a prima facie basis for liability: (1) An enactment must impose a mandatory, not discretionary, duty; (2) The enactment must be intended to protect against the kind of risk of injury suffered by the plaintiff; and (3) The breach of the mandatory duty must be a proximate cause of the plaintiffs injury. See State of California v. Superior Court, 150 Cal.App.3d 848, 854, 197 Cal.Rptr. 914 (1984); Arvo Van Alstyne, California Government Tort Liability Practice, § 2.71 (3d ed. 1992). Westlands argues that the first requirement is absent as the complaint fails to sufficiently allege the breach of any applicable statute or regulation which imposes a mandatory duty. The court in Lehto v. City of Oxnard, 171 Cal.App.3d 285, 292, 217 Cal. Rptr. 450 (1985), held that “[b]ased upon the manifest intent underlying section 815.6, we think it obvious' that a litigant seeking to plead the breach of a mandatory duty specifically allege the applicable statute or regulation.” Plaintiffs contend paragraph 170 is sufficient: The District was under mandatory duties imposed by various enactments, including the Merger Law and the California Water District Law, which were designed to protect the Area I landowners and water users against certain risks. The District’s failure to discharge those duties caused plaintiffs’ injuries of such type. The District failed to exercise reasonable diligence to discharge such duties. Plaintiffs suggest that Westlands knows that “Merger Law” refers to California Water Code §§ 37800 through 37856, and Water Code § 37856 provides: Lands which were within the Westlands Water District immediately prior to the merger shall, so long as said lands remain in the said District, have a prior right with respect to water to which said District was entitled under any contract with the United States in effect on the date of said merger over (1) lands added to the West-lands Water District as a result of the merger and (2) lands annexed to said District subsequent to the merger. Plaintiffs’ position is problematic: (1) Paragraph 170 does not refer to § 37856, nor any specific statute as required by Lehto; (2) § 37856 speaks of Area I’s priority rights to water delivery, it appears to impose no duty regarding drainage; (3) Paragraph 170 alleges mandatory duties under “California Water District Law,” yet Plaintiffs now make no allegation as to that body of law (except the reference to “Merger Law” which is a subset of “Water District Law”); and (4) Paragraph 170 states that “mandatory duties exist under various enactments” other than those contained in “the Merger Law and the California Water District Law,” yet Plaintiffs do not identify the duties, not their source. Allegations of a breach of a mandatory duty must be pleaded with specificity. Plaintiffs’ overbroad assertions shall be dismissed with leave to amend. 3. Dangerous Condition of Public Property Claim Government Code section 835 provides the basis for liability for an injury caused by the dangerous condition of public property. The first necessary step in establishing a prima facie claim is to demonstrate that the public property was in a dangerous condition at the time of the injury. West-lands asserts that Plaintiffs’ claim is defective by failing to allege the existence of a dangerous condition in any property owned or controlled by Westlands. Paragraph 171 of the complaint alleges: Real and personal property owned or controlled by the District, including the As-Built Drainage Collector System and the distribution system in Area II, was in such condition as to create a substantial risk of injury when used with due care in a manner reasonably foreseeable to be used. Said condition created a reasonably foreseeable risk of and caused plaintiffs’ injuries. Negligent or wrongful acts or omissions of the actions of District employees within the scope of employment created such condition. The District has actual or constructive notice of such condition and had the opportunity to take measures to protect against such condition. Section 830(a) defines “dangerous condition” as “a condition of property that creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” Westlands argues that neither the drainage collector system nor the water delivery system is or ever was a dangerous condition. Nor can the drainage collector system be the source of a risk of injury in its present inoperable state. Westlands notes that Plaintiffs do not allege any injury caused by the drainage system when it was being operated. Westlands argues that Plaintiffs cannot show that the water delivery system in Area II is a dangerous condition, as it only delivers water. It further contends that Plaintiffs’ resentment that funds they assert should have been used to construct drainage facilities were instead allegedly used to build Area II’s delivery system does not make the delivery system dangerous. Plaintiffs’ theory of harm does not separate the drainage collector system and the water delivery system. Their claim is said to apply to the delivery and drainage system as a whole (the “as-planned irrigation system”); the irrigation system was intended to operate as a single unit, to bring irrigation water into Westlands and remove the excess. They allege the system, as it currently operates, is “defective per se,” because it brings water in, but provides no means to remove the excess. This lack of drainage is a dangerous condition which harms their lands. A dangerous condition can exist even if the public property is not defective, where other independent acts occur which cause the injury to occur. Arvo Van Alstyne, California Government Tort Liability Practice, § 3.16 (3d ed. 1992) states that beyond the obvious cases in which the public property is physically flawed, “Condition of property” also has been defined as public property that is not damaged or in a deteriorated condition, and that is neither structurally unsound nor physically defective. Such property may nevertheless be in a dangerous condition because of the design or location of the improvement, the interrelationship of its structural or natural features, or the presence of latent hazards associated with its normal use. Id. at 308. The treatise refers to cases that establish that an otherwise non-dangerous condition (e.g., providing water delivery) can be termed dangerous because of the occurrence of an independent act (e.g., blockage of drains). See Hill v. People ex rel. Dept. of Tramp., 91 Cal.App.3d 426, 154 Cal.Rptr. 142 (1979) (a nondefective highway overpass rendered dangerous by a negligently issued oversize load permit that routed a truck through the overpass); Anderson v. City of Thousand Oaks, 65 Cal.App.3d 82, 135 Cal. Rptr. 127 (1976) (a sharp curve incorporated into a highway improvement without signs posted warning of the need to reduce speed); Branzel v. City of Concord, 247 Cal.App.2d 68, 55 Cal.Rptr. 167 (1966) (a nondefective model airplane flying in close proximity to high voltage power lines). The determination of whether a condition is dangerous is generally one of fact for-the jury. Peterson v. San Francisco Community College Dist., 36 Cal.3d 799, 810, 205 Cal.Rptr. 842, 685 P.2d 1193 (1984). The issue can only be determined as a matter of law if reasonable minds can come only to one conclusion. Mittenhuber v. Herrera, 142 Cal.App.3d 1, 5, 190 Cal.Rptr. 694 (1983). Given the plain language of section 830(a) and the absence of any case law to the contrary, Plaintiffs’ dangerous condition of public property claim survives. If a city provided water service to a block of privately owned homes with sewer pipes that all led to the house at the end of the block, knowing that sewage service to the block had been shut off, a dangerous condition could exist, regardless of the fact that neither the water service nor the inoperative sewage system is independently dangerous. The motion to dismiss is denied as to this claim. 4. Compliance with Tort Claims Act In the Court’s October 30, 1991 Order, the tort and contract claims of 97 plaintiffs were dismissed with leave to amend because the complaint did not allege timely compliance with the administrative claims requirements of California’s Tort Claims Act. The amended complaint names 147 plaintiffs. West-lands alleges that many of these monetary relief claims must be dismissed for lack of compliance with the timing requirements of the Tort Claims Act. Plaintiffs and Westlands agree that the pool of plaintiffs can be divided into five categories (termed 1, 2, A, B, and C, in the parties’ briefs; numbered consecutively here): Group One consists of 49 plaintiffs, all of whom filed administrative claims in May or June of 1986 in their own names. Westlands acknowledges that these plaintiffs were granted extensions to January 31, 1991, for the filing of suit on their administrative claims. Group Two consists of 4 plaintiffs who filed claims dated March 17, 1989 and May 9, 1990. Group Three consists of 4 plaintiffs (Rries-ant Operating Company, Inc., TIMCO, Donald Skinner et al., dba Murrieta Landowners, and Lionel Caeton) who filed claims in May and June of 1986 in their own names. West-lands contends that they were not subsequently granted extensions for the time in which to file suit. Group Four consists of 49 plaintiffs, all of whom are members of the Allen, Britz, Car-valho, Kriesant, Wolfsen, and Thomsen families, each of whom is alleged by Plaintiffs to be either “the successor-in-interest, transferee, or assignee of a named claimant, a party on behalf of whom an administrative claim was filed, or is otherwise entitled to bring suit thereunder.” It is alleged that a family member or corporate entity of which the plaintiff was a principal filed a claim in 1986, yet not in the plaintiffs name. Group Five consists of 42 plaintiffs, all of whom are members of the Peck, Guenther, Orff, O’Neill and Walton families. Plaintiffs allege that they own land which was never served by the collector drainage system. They filed administrative claims on April 5, 1991. Westlands concedes that members of Groups One and Two are proper plaintiffs to claims seeking money damages. It contends that such claims may not be raised by members of Groups Three, Four, and Five. As to Group Three, there is no dispute that their administrative claims were filed in a timely manner. The dispute is over whether Westlands granted an extension of time in which to file suit. Westlands contends that it sent out extension letters which became effective only upon the recipient signing and returning a copy of the letter. Westlands alleges that such letters were sent to the Group Three plaintiffs, but the letters were not returned. Westlands has asked that judicial notice be taken of the “Third Declaration of Mary K. Alderson” in which Ms. Alderson states that a series of five extension letters (one each year from 1986 through 1990) were sent to those who had filed administrative claims, but that at various stages each of the Group Three plaintiffs failed to return a signed extension letter. In a document entitled “Sumner Peck Plaintiffs’ Request to Exclude Evidence Presented By Westlands Water District,” Plaintiffs object that the subject matter of the Alderson Declaration is not of the type for which judicial notice may be taken. They also object on evidentiary grounds. They additionally contend that insufficient discovery has occurred to fairly allow the motion to dismiss to be transformed into one for summary judgment. They have also submitted declarations of the Group Three plaintiffs which contradict the Alderson Declaration. Given the complexity of Westlands’ motion and the stay of discovery, Plaintiffs are justified in seeking to prevent the introduction of non-pleading evidence. In any case, the existence of factual disputes prevents the dismissal of Group Three plaintiffs. The Group Four plaintiffs have not filed an administrative claim, yet allege that they have standing to sue as successors-in-interest of family members who timely filed claims. Westlands alleges that suit may only be initiated by plaintiffs whose names actually appear on the underlying administrative claims. It notes that California Government Code Section 910 requires that “[a] claim shall be presented by the claimant or a person acting on his behalf ...” Section 910.2 similarly requires that “[t]he claim shall be signed by the claimant or by some person on his behalf.” Yet these statutes do not explicitly bar a successor-in-interest from filing suit on the basis of a properly filed claim. The case law Westlands cites is distinguishable from the present situation. In those cases, the plaintiffs attempted to either change the nature of the injury asserted or expand the recovery sought. In each case, the government would have suffered potential prejudice, by either having to defend against a new theory or be exposed to increased liability. See Roberts v. State of California, 39 Cal.App.3d 844, 848, 114 Cal. Rptr. 518 (1974) (filing requirement for widow suing for wrongful death not satisfied by worker’s compensation claim filed by insurer and employer, since state’s “exposure is different in kind and nature”); Pacific Tel. & Tel. Co. v. County of Riverside, 106 Cal. App.3d 183, 191, 165 Cal.Rptr. 29 (1980) (filing requirement for widow suing for wrongful death not satisfied by workers’ compensation claim filed by employer, citing rationale of Roberts)-, Lewis v. City and County of San Francisco, 21 Cal.App.3d 339, 341, 98 Cal.Rptr. 407 (1971) (filing requirement for widower suing for wrongful death, not satisfied by personal injury claim filed by decedent since “action for wrongful death is wholly distinct”); Petersen v. City of Vallejo, 259 Cal.App.2d 757, 765-66, 66 Cal.Rptr. 776 (1968) (filing requirement for daughter suing for wrongful death of father not satisfied by wrongful death claim made by still living mother where daughter could have filed claim at same time and each survivor has independent cause of action in wrongful death suit); Bozaich v. State of California, 32 Cal.App.3d 688, 697, 108 Cal.Rptr. 392 (1973) (class action cannot be instituted when only two plaintiffs filed administrative claim since allowing “an unascertainable number of claimants whose properties allegedly were taken by the state over the years” would “erode the very foundation upon which the claim-filing statutes rest”). All of the cases Westlands cites were discussed and rejected in San Diego Unified Port Dist. v. Superior Court, 197 Cal.App.3d 843, 243 Cal.Rptr. 163 (1988). San Diego Unified involved the factual opposite of Roberts; a worker had filed an administrative claim based on personal injury but her employer’s workers’ compensation insurer had failed to file a reimbursement claim. The court began by noting: There are two purposes for the filing requirement: (1) to give notice to the public entity so it will have a timely opportunity to investigate the claim and determine the facts; and (2) to give the public entity an opportunity to settle meritorious claims thereby avoiding unnecessary lawsuits. Id., 39 Cal.App.3d at 847, 114 Cal.Rptr. 518. The court concluded that the governmental entity could not have been prejudiced by the insurer’s failure to file a claim as plaintiffs claim for damages was “all-inclusive.” Id. at 848,114 Cal.Rptr. 518. It was also clear that the governmental entity’s decision not to settle with plaintiff was not affected by the insurer’s failure to file a claim. Id. The court rejected Petersen and Bozaich as inapplicable as “[bjoth cases involved prospective claimants with separate claims and additional claims” and Roberts and Pacific Telephone as distinguishable because the initial claim left the “extent of potential damages ... unknown to the entity” and “the entities’ posture on settlement may have been significantly different.” Id. at 851, 114 Cal.Rptr. 518. Westlands argues that San Diego Unified is factually distinguishable as it involves a subrogation relationship and relies on workers’ compensation statutes. While this is true, the logic employed by the case is relevant: a governmental entity must demonstrate that it would be prejudiced by the failure of a successor-in-interest to file an administrative claim. . Westlands would not be prejudiced by allowing the Group Four claims to go forward. The Group Four plaintiffs are alleging the same issues and injuries as raised in the claims filed by their predecessors-in-interest. Westlands does not contest Plaintiffs’ allegation that the identical acreage is at issue now as in 1986, when the claims were filed. The land has simply been divided up within the families. Westlands does not argue that Group Four’s failure to file negatively affected the district’s ability to settle the case. Westlands’ dealings with Group One, indicate that the district made the tactical decision not to settle with any party. The Group Five plaintiffs acknowledge that they did not file administrative claims until April 5, 1991. They allegedly own land which was never served by the collector drainage system. The parties disagree as to whether these claims are timely and the time period for which Plaintiffs can seek damages. Westlands argues that the Group Five plaintiffs were required to file a claim at the time any alleged injury occurred. Plaintiffs correctly point out that their claim for dangerous condition of public property is susceptible to a continuing tort theory. “If the injury is of a continuing nature, such as a prolonged flooding of land, the owner may treat the claim as one that keeps accruing from time to time and present periodic claims as the damage persists, or may treat the entire sequence of events as the occurrence from which the claim arose and compute the time for claims presentation from the last event in the series.” Arvo Van Alstyne, California Government Tort Liability Practice, § 6.43 (3d ed. 1992) (citations omitted). A claimant may only recover for damage incurred within the period provided for filing claims. See Amador Valley Investors v. City .of Livermore, 43 Cal.App.3d 483, 490-91, 117 Cal.Rptr. 749 (1974) (damages only recoverable if they were incurred one year before the claim was filed). The claims of Groups One through Four are viable. Group Five’s claims are limited by the applicable statutes of limitations under the continuing tort theory. C. Breach of Contract Claims The eighth cause of action alleges that Westlands has breached the 1963 Service Contract, the 1965 Repayment Contract, the contracts relating to the merger of the former Westlands and the original Westlands, and the 1986 Stipulated Judgment. It seeks money damages and appropriate equitable relief for such breaches. 1. Have Plaintiffs Stated a Claim in their Role as Third Party Beneficiaries Westlands contends that the complaint fails to allege a cognizable claim for breach of the 1963 Service Contract and the 1965 Repayment Contract. Westlands makes no arguments as to the claims arising from the other alleged contracts. Both Westlands and Plaintiffs agree that Plaintiffs are third-party beneficiaries to the 1963 and 1965 contracts between the United States and Westlands. “The rights of third-party beneficiaries are limited by the contract between the promisor and the promisee.” Punikaia v. Clark, 720 F.2d 564, 570 (9th Cir.1983). As Plaintiffs cannot state a contract claim against Westlands for alleged promises made by the United States, Plaintiffs’ claims are limited to those rights which the United States could assert against West-lands under the two contracts. Westlands contends that Plaintiffs have no claims as to the provision of drainage service because the United States could not state a cognizable claim for breach under either of the contracts. Plaintiffs’ claim as to the 1963 Service Contract focuses around Article 13 which provides that Westlands “shall construct such drainage works as are necessary to protect the irrigability of lands within the District.” The term “drainage works” is not defined. Plaintiffs would define the term broadly, so as to impose on Westlands the duty to build whatever facilities are necessary to protect irrigability, regardless of the federal government’s subsequent refusal to provide any portion of the drainage. That is, since the federal government decided to shut down the interceptor drain and the disposal site, West-lands owes a contractual duty to the federal government, and thus to Plaintiffs, to construct an entire alternate drainage system. Yet, paragraph (g) of the contract demonstrates that the parties to the contract did not intend that the obligation owed by West-lands be so broad. It provides, “[djrainage facilities of the District constructed in accordance with Article 13 hereof may be connected to the interceptor drain in such capacity and at such location as may be mutually agreed upon by the District and the United States.” Thus the only logical interpretation of the two contractual provisions is that the “drainage works” contemplated under Article 13 refers to the intra-district drainage collector system. It cannot refer to the interceptor drain, as the works in question are to “be connected to the interceptor drain.” Nor is there any suggestion that it refers to the disposal site at the terminus of the interceptor drain. Thus, the United States could not maintain a breach of contract action against Westlands for its failure to provide any more than an intra-district drainage collection system. Nor can Plaintiffs, as third-party beneficiaries to the contract, maintain such an action. Thus narrowed, the question becomes whether the United States could maintain a contract action against Westlands for its failure to provide a drainage collector system. Westlands argues that such an action could not be maintained because the United States, by shutting down the interceptor drain, has made performance of the District’s obligation impossible. Westlands contends that it cannot provide drainage because there is no place for the water to go. Westlands is correct that the United States could not now bring such a suit. Yet, it is not clear that the United States never could have brought such a suit. The Barcel-los Judgment appears to have modified the terms of the 1963 Service Contract as to the parties’ respective drainage obligations. The rights of a third-party beneficiary are not always affected by the subsequent acts of the contracting parties. As Witkin states: [I]n the absence of a contract term limiting their power, the promisor and promisee “retain power to discharge or modify the duty by subsequent agreement.” The power terminates, however, when the beneficiary, before receiving notification of the discharge or modification, “materially changes his position in justifiable reliance on the promise or brings suit on it or manifests assent to it at the request of the promisor or promisee.” And if the promis-ee receives consideration for an attempted discharge or modification which is ineffective against the beneficiary, “the beneficiary can assert a right to the consideration so received.” B.E. Witkin, 1 Summary of California Law, § 671 (9th ed.1987). Westlands’ motion to dismiss Plaintiffs’ claim for breach as to the 1963 Service Contract must be denied, as the effect of the modification on Plaintiffs’ rights cannot be determined from the pleadings or the present record. As to the 1965 Repayment Contract, Plaintiffs allege that language within Articles 2 and 7 imposes a duty on Westlands. Plaintiffs specifically point to Article 2(a) which provides that “[t]he United States and the District will exert their best efforts to expedite the completion” of the “distribution system” which the United States will pay for. A similar provision in Article 7 obligates West-lands to “use all proper methods to secure the economical and beneficial use of the water delivered by means of the distribution system.” Article 1(d) defines “distribution system” to include “a drainage collector system.” While conceding that Plaintiffs are third-party beneficiaries under the 1965 contract, Westlands argues, The intent of each of these provisions is to set forth general conditions, for the mutual benefit of the contracting parties. These provisions are intended to guide and define the relationship of the parties in carrying out a complex undertaking. They were not intended to grant third-parties the right to sue for perceived failures of mutual agreement, effort, consultation, or cooperation. (emphasis in original). Westlands miscites a 1978 case from the Northern District of Mississippi, Ivey’s Plumbing and Elec. Co. v. Petrochem Maintenance, Inc., 463 F.Supp. 543 (N.D.Miss.1978), for the proposition that a party can be a third-party beneficiary of some portions of a contract, but not for others. The intent that Westlands ascribes to the parties cannot be determined from the language of the contract, and the,issue cannot be determined on a pleading, motion. 2. Compliance with Tort Claims Acts Westlands contends that the breach of contract claims as to some of the,plaintiffs must be dismissed as their administrative claims failed to “state any direct or inferential facts in support of their contract claim for relief.” It alleges this deficiency as to all but 23 of the plaintiffs who filed an administrative claim in 1986. Plaintiffs respond that the facts alleged' in all of the claims put Westlands on adequate notice of the claimants’ intent to assert a claim for breach of contract. Copies of the administrative claims are contained in Westlands’ Request for Judicial Notice, filed on June 17, 1991. Judicial notice can be taken of these public records. A document entitled “Supplemental Declaration of Mary K. Alderson, filed April 20, 1992, lists the 23 claims which Westlands concedes adequately state a contract claim. Review of those claims reveal that in each case it is alleged that harm has been caused by the plugging of the drains and that contracts exist which were breached by Westlands. For instance the May 26, 1986 claim of members of the Silveira family states in part: Circumstances: On or about [March 10, 1986] subsurface drainage lines were first plugged which had the effect’ of preventing the removal of subsurface waters from property owned and farmed by claimants in Western Fresno County. Because of the plugging of the sub-surface drainage lines the production capability and value of the farm land immediately lowered in value. Contentions ... That certain contracts were entered into between the Westlands Water District and other entities, of which claimants were third-party beneficiaries. By failing to enforce performance by the other entities .to the various contracts, Westlands Water District has caused the damage and injury to claimants to which this claim is addressed. Administrative Claim of various members of the Silveira Family, Westlands’ Request for Judicial Notice, Ex. 1. Review of a few of the administrative claims which Westlands contends fail to allege facts establishing a cause of action for breach demonstrates that the allegations of breach are not clearly stated. For instance, the claim of Linda Britz Glassman, filed June 5, 1986 states: This.claim arises from the shutting-off of the drainage pumps and the installing of earthen plugs in the drainage collector system -in the area in which the Claimant’s property is located. The shutting-off of the pumps and the installing of the plugs began on or about March 10, 1986, and adversely affects Claimant’s attempts to mitigate damage by recycling, the shutting-off of the pumps and the installing of the plugs will cause the underground water table to rise; and if the water table rises, phytotoxic elements, including but not limited to sodium, chlorides, and boron, will increase, will reduce crop productivity, and in turn will reduce the fair market value of the property. The shutting-off of the drainage pumps and the installing of the earthen plugs is a taking of the Claimants property without just compensation (inverse condemnation), is tortious, and violates express and implied covenants between Claimant and the District. The dollar amount claimed may increase with the passage of time. Administrative Claim of Linda Britz Glass-man, Westlands’ Request for Judicial Notice, Ex. 1. Another claim, filed by Robert Chuck, on June 4, 1986, is even more attenuated: On or about the end of March 1986, Westlands Water District willfully and wrongfully constructed a drain plug on the drainage collector system serving the property described below ... Such actions were taken by Westlands Water District with knowledge that properties would thereafter be unable to adequately drain irrigation water and that such actions would result in loss of the ability to continue to farm such property, loss in value of the property, and loss of profits such farming activities on the property. Administrative Claim of Robert Chuck, as Trustee, Westlands’ Request for Judicial Notice, Ex. 1. ' “When a civil action is brought following denial of a government tort claim ‘the written claim must correspond with the facts alleged in the complaint; even if the claim were untimely, the complaint is vulnerable to a demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim.’ ” Blair v. Superior Court, 218 Cal.App.3d 221, 223-24, 267 Cal.Rptr. 13 (1990) (citation omitted). Government Code section 910, prescribes the information that the claim must contain. As pertinent here, the statute requires that the claimant set forth: “(c) The date, place, and other circumstances of the occurrence or transaction which gave rise to the claim asserted, (d) A general description of the ... inquiry, damage or loss incurred.... (e) The name or names of the public employee or employees causing the injury ... if known.” As long as these general elements are present, it is not necessary that the claim comply with formal pleading standards. The purpose of the claim is to present sufficient detail “to reasonably enable the public entity to make an adequate investigation of the merits of the claim and to settle it without the expense of a lawsuit.” ... ... While an allegation as to the legal cause of an accident may be an element of the tort which must be pled in a complaint, section 910 does not impose upon an injured claimant an obligation to include it in the claim. Blair, 218 Cal.App.3d at 224-25, 267 Cal. Rptr. 13 (citations omitted, emphasis added). The administrative claims filed in 1986 gave Westlands sufficient notice of the injury alleged, namely that the water table had risen as a result of plugging the drainage collector system thereby causing harm to claimants’ lands and crops. Whether plaintiffs now proceed under a tort theory or contract theory, the underlying factual basis for their claim's is identical. The only unal-leged fact in those claims which Westlands challenges is the existence of the contracts themselves. Westlands cannot establish that it was in any way prejudiced by this, as the claims filed by other landowners clearly alleged the existence of contractual rights and such rights were at the heart of the Barcellos litigation, which was settled prior to the drains being plugged. Neither the district’s ability to investigate nor its settlement position was adversely affected by the lack of specificity of the claims. The motion must be denied as to these administrative claims. D. Inverse Condemnation Claims Plaintiffs’ ninth claim asserts that Westlands has taken, and damaged, Plaintiffs’ property for public use, but has failed to pay just compensation under the California and United States Constitutions. In the Court’s October 21, 1991 Order, Plaintiffs were directed that any future claim as to inverse condemnation should “focus on the conduct that ... effects a taking.” Plaintiffs’ new inverse condemnation claim alleges a new factual basis. The former complaint alleged that Westlands misused the existing, but non-operating, drainage system. The weakness of Plaintiffs’ allegations was an inability to sho