244 Cal. App. 4th 12
Cal. Ct. App.2016Background
- Inverse condemnation action involving Lake Earl flood control, where the state allegedly flooded private Pacific Shores lands to protect environmental resources.
- County breached a sandbar to control flooding under historical practice; the Department of Fish and Wildlife (Department) sought to limit breaching to higher water levels.
- From 1989–2005 no long-term permit existed; emergency and interim permits governed breaching at various levels (four to eight to ten feet msl).
- In 2005, Department approved a management plan breaching at eight to 10 feet msl; the Commission and Army Corps issued corresponding permits.
- Plaintiffs claimed a physical taking (and regulatory taking by the Commission) and sought precondemnation damages and attorney fees; trial court held Department liable for a physical taking and awarded damages, with other rulings on the Commission and fees.
- Appellate court remanded for a Department flowage easement; reversed the Commission’s liability on timeliness grounds; upheld Department liability, and addressed regulatory taking, precondemnation damages, and attorney fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of inverse condemnation claims | Commission actions timely under 60-day mandate rule. | Commission actions time-barred under mandate rule; Department timely. | Commission barred; Department timely. |
| Liability standard for Department's flooding | Department liable under strict or reasonable liability for flooding. | No flood-control duty; breach at eight to 10 feet msl merely reasonable. | Department strictly liable; or, failing strict liability, unreasonableness supports liability. |
| Regulatory taking against the Commission | White hole/retained land-use jurisdiction violated Coastal Act and deprived use. | Administrative mandate exhaustion required; Commission not acting beyond jurisdiction. | Regulatory taking claim barred; administrative jurisdiction exception did not apply. |
| Precondemnation damages | Deferral of certification and increased flooding constitute precondemnation taking damages. | Commission had no duty to compel certification or accelerate permits. | No precondemnation damages awarded. |
| Attorney fees under 1036 | Fees should reflect hours billed and rates; contingency should not cap. | Fees limited to actually incurred per contingency agreement and Andre v. City of West Sacramento. | Fees awarded capped by actual incurred fees per contingency; equitable under 1036. |
Key Cases Cited
- Dickinson, 331 U.S. 745 (U.S. Supreme Court, 1947) (stabilization doctrine for ongoing takings)
- Pierpont Inn, Inc. v. State of California, 70 Cal.2d 282 (Cal. 1969) (stabilization formulation for accrual in ongoing takings)
- Lee v. Los Angeles County Metropolitan Transportation Authority, 107 Cal.App.4th 848 (Cal. App. 2003) (stabilization doctrine applied to ongoing effects)
- Belair County Flood Control Dist. v., 47 Cal.3d 550 (Cal. 1988) (strict liability in flood-control contexts with exceptions for reasonableness)
- Bunch II v. Coachella Valley Water Dist., 15 Cal.4th 432 (Cal. 1997) (reasonableness standard in flood-control inverse condemnation)
- Akins v. State of California, 61 Cal.App.4th 1 (Cal. App. 1998) (distinguishes strict liability when government diverts water to flood private property)
- Salton Bay Marina, Inc. v. Imperial Irrigation Dist., 172 Cal.App.3d 914 (Cal. App. 1985) (contingency fees and 1036 analysis guidance for attorney fees)
- Andre v. City of West Sacramento, 92 Cal.App.4th 532 (Cal. App. 2001) (fees under 1036 limited to actually incurred, contingency cap)
- Northwest Louisiana Fish & Game Preserve Comm. v. United States, 446 F.3d 1285 (Fed. Cir. 2006) (stabilization doctrine in federal takings context applied to timing)