Roger Sullivan, R.I.P. — A War Story

Word has reached us a couple of days ago that Roger M. Sullivan, Esq., a great California condemnation lawyer, passed away at the age of 90.

There is an extensive obituary of Roger in today’s Los Angeles Times (12/5/16, at p. B5.). Check it out. We recommend you read it because, among other things, it will tell you about Roger the man. http://www.legacy.com/obituaries/latimes/obituary.aspx?n=roger-michael-sullivan&pid=182977886&fhid=11024

As for us, we contribute this war story about Roger the professional.

Few people know it, but it was Roger who, professionally speaking, put me on the map. Back in 1968, I lost Lombardy v. Peter Kiewit Sons’ Co. (1968) 266 Cal.App.2d 616). It was an inverse condemnation case involving proximity damages to my clients’ home from a steep upward freeway ramp. It was heavily used by large, heavy trucks, so to ascend the grade they had to downshift into lower gears, producing a high level of noise, seriously interfering with the use and enjoyment of the home.

Alas, we were demurred out of court, and the Court of Appeal affirmed, holding that (a) the state was immune to actions for nuisance, and (b) that state violation of restrictive covenants (CC & Rs) was non-compensable. The Supreme Court denied hearing, and it appeared that that was that. Except, thanks to Roger, it wasn’t.

Some time later, in 1971, as I recall, I got a call from Roger. He had read the wretched Lombardy case, and got intrigued by it to the extent of digging up and reading our briefs. They impressed him sufficiently to inspire him to call me and to ask: “I just read your Lombardy briefs. Would you like to try again?” Would I?! Surely you jest by asking. Long story short, Roger turned the file over to us, and away we went. Since our submission required a change in the decisional law, this was a case suitable for the California Supreme Court which would have to overrule its own 1909 precedent to give the nod to our client.

So off we went, predictably losing at the trial court and court of appeal level. But miracle of miracles, the California Supreme Court granted hearing and the rest became history in short order. See Southern Cal. Edison Co. v. Bourgerie (1973) 9 Cal.3d 169. And guess what? The court reexamined it earlier ruling, concluded that it had been in error (and out of step with the decisional law of other states), and overruled its own precedent as well as Lombardy on the point of compensability of CC & Rs.

And so, I wound up the winner in a precedent-breaking and precedent-making case. And I owe it to Roger who saw in my work a potential that the Lombardy judges failed to note. For that I have been grateful to him for the rest of my career. The professional compliments bestowed on me by that referral don’t come higher than that.

So thank you again, Roger. Rest in peace.

PS — But, you ask,  what about that second Lombardy holding, the one that government is immune to suits for nuisance? Actually, we got that one overruled too in Nestle v. City of Santa Monica (1972) 6 Cal.3d 920. Michael M. Berger (who handled just about every airport case before the California Supreme Court)* did most of the briefing and your faithful servant argued it before that court.

So the moral of this war story is that when your litigational ship sails, leaving you standing on the dock, that isn’t necessarily the end of it.

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* To get a better idea of his accomplishments in that field, see 4 Brigham-Kanner Property Rights Jour. at 3-11 (2015)