*1 Filed 4/30/14
CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
(Shasta)
PHILIP L. BIRON, as Trustee, etc., et al., C071094 Plaintiffs and Appellants, (Super. Ct. No. 167508) v.
CITY OF REDDING,
Defendant and Respondent. APPEAL from a judgment of the Superior Court of Shasta County, Monica Marlow, Judge. Affirmed.
McNeill Law Offices and Walter P. McNeill for Plaintiffs and Appellants. Damien M. Schiff and Anthony L. François for Pacific Legal Foundation as Amici Curiae on behalf of Plaintiffs and Appellants.
Richard A. Duvernay and Lynette M. Frediani, City Attorneys for Defendant and Respondent.
Plaintiffs Biron Family Living Trust and Philip L. and Julie M. Biron as trustees own a 12-unit apartment building in downtown Redding, California, which they purchased in 2001. In February and March 2009, their property was damaged by flooding during two separate storm events. They filed this action against defendant City *2 of Redding (City), alleging inverse condemnation and dangerous condition of public property.
The matter was bifurcated, and tried to the court without a jury as to liability. Following the plaintiffs’ presentation of evidence, City moved for judgment pursuant to Code of Civil Procedure section 631.8, subdivision (b), and the trial court granted the motion only as to the allegations of flooding occurring in March 2009. The trial proceeded as to the allegations of flooding occurring in February 2009.
The trial court ruled in favor of City on both causes of action. As to the inverse condemnation claim, it applied the rule of reasonableness to conclude that City’s decision to defer upgrades to City’s storm drainage system did not pose an unreasonable risk of harm to plaintiffs. As to the cause of action for dangerous condition of public property, the court concluded City’s decision to defer upgrades to the storm drainage system did not create a substantial risk of injury to members of the general public, and that even if the storm drain system had been a dangerous condition, City’s conduct was reasonable.
Plaintiffs argue the trial court erred in applying a rule of reasonableness to the inverse condemnation cause of action, and claim City should have been strictly liable for the damage. Plaintiffs make no focused argument with respect to the dangerous condition of public property claim, other than to reiterate that City knew the storm drainage facilities were deficient, and that the facilities were a dangerous condition of public property.
We shall affirm the judgment.
The trial court was correct in determining that City’s inverse condemnation liability was determined by a rule of reasonableness. Moreover, the trial court’s findings of fact lead to the conclusion that the storm drain facilities were not a substantial cause of plaintiffs’ damage. The trial court’s finding that City acted reasonably, reasonableness being a complete defense to the dangerous condition of public property claim, is supported by substantial evidence.
FACTUAL AND PROCEDURAL BACKGROUND
The trial court filed a lengthy and detailed statement of decision. Plaintiffs make no claim that the evidence was insufficient to support the trial court’s findings of fact. Therefore we derive most of the factual background in this opinion from the trial court’s findings of fact contained within the statement of decision.
The Biron property is a 12-unit apartment building located at 2487 Court Street in downtown Redding. It is not directly adjacent to a natural watercourse, but there is a natural watercourse approximately a block away. The owner of the property adjacent to plaintiffs’ installed a brick wall and floodgates because storm water had flooded that property in the past. The adjacent floodgates were in place when plaintiffs purchased their property in 2001.
City designed, constructed, and maintained a storm drainage system on and around plaintiffs’ property as a means of surface water and flood control. 1 The facilities are intended in part to protect property, including plaintiffs’ property. The Biron property is not within a mapped flood plain. There is a 36-inch storm drain inlet in the center of the parking lot on the Biron property. It falls outside City’s easement for the purpose of storm drain maintenance, thus is privately owned and controlled by plaintiffs, who have the responsibility for its maintenance.
In 1993 Montgomery Watson Engineers contracted with City to prepare a city- wide master storm drain study (Study), which evaluated the city’s storm drain facilities and made recommendations for repair and replacement. The purpose of the Study was to recommend upgrades and an implementation plan which would allow safe conveyance 1 Plaintiffs object to City’s characterization of the storm drain system as a flood control project because City’s attorney admitted the system was “not a flood control project, per se.” Of course, the statement of an attorney is not evidence. Plaintiffs do not point to any evidence that the purpose of the storm drain system was not to collect surface water and prevent flooding, whether or not it was “per se” a flood control project.
for floodflows from specific storm magnitudes (i.e., 10-year storms, 25-year storms, 100- year storms).
The Study contained a capital improvement plan, which set forth facilities needing improvement to convey future development design flows. The deficient facilities were ranked in order of priority, with the highest priority given to those facilities that were the most deficient, and the lowest priority given to those facilities that were the least severely undersized. Most of the downtown Redding facilities, where plaintiffs’ property is located, were assigned the lowest priority because “the majority of the problems in that area consist[ed] of nuisance flooding [less than 2 feet deep, with low velocities] in the streets.” Five facilities in the immediate vicinity of plaintiffs’ property were included in the capital improvement plan. The recommended level of protection for all but one of the five facilities was a 25-year storm design. A 100-year storm design was recommended for the remaining facility. All five were assigned a priority of six, which was the lowest priority assigned in the capital improvement plan. None of the downtown facilities identified by the Study as deficient were ever improved. There was no evidence that the volume of runoff into the storm drain system increased as a result of development since the 1993 Study. 2
City considered the storm drain utility to be grossly underfunded and lacking in available funds for improvement. The Study estimated the cost of recommended improvements to the facilities in the downtown area (where the Biron property is located) to be approximately $7.5 million. The cost of the recommended improvements for all 2 Plaintiffs’ reply brief argues there was evidence of properties that were built without drainage mitigation. However, defendant’s witness testified the amount of rainfall that was diverted from the watershed exceeded the amount of impervious surface that may have been created by unmitigated development.
other facilities identified in the Study throughout the city was approximately $14.5 million.
In 1992 or 1993 there was a flood on the Biron property and on the adjacent Cresswell property. Afterward, a brick wall and floodgates were installed on the adjacent Cresswell property. In the flood of 1992 or 1993, two to three inches of flooding occurred inside the apartment complex that was later purchased by the Birons. The Birons were not aware of the 1992 or 1993 flood.
Storms resulting in flooding occurred on February 23 and March 16, 2009. A tenant of the Birons’ apartment complex testified that the amount of water entering the Biron property and the direction of the water flow were the same in both instances. The parties’ experts agreed that the March 16, 2009, event was a greater than 100-year event. It was thus considered to be the result of an “ ‘act of God’ ” for which City bore no responsibility.
Two nearby rain gauges recorded precipitation from the storms. One recorded a 16-year storm event on February 23, 2009. One recorded a 100-year storm event on February 23, 2009. The trial court found that the February 23, 2009, storm event was more consistent with a 100-year frequency storm.
The flooding on the Biron property was not caused by City’s poor maintenance of the system. The trial court found the flooding was caused by a storm event that was akin to a 100-year event, which overwhelmed both natural watercourses and storm drain infrastructure, causing water to backup onto the street adjacent to the Biron property, to surcharge 3 through the storm drain inlet on the Biron property, and to run overland, finding the lowest path downstream via another adjacent street. The water from the adjacent streets entered the Biron property. The trial court also found that a cyclone and 3 A drain surcharges when water gushes upward and out rather than taking drainage water in.
a wood fence, as well as railroad ties placed on the Biron property impeded downstream draining.
The trial court ruled in favor of City on both the inverse condemnation and
dangerous condition of public property causes of action. In analyzing the inverse
condemnation cause of action, the court applied the “rule of reasonableness” set forth in
Locklin v. City of Lafayette
(1994)
The trial court also considered five factors set forth in
Albers v. County of Los
Angeles
(1965)
Considering all of the above factors, the trial court concluded City did not act unreasonably in deciding to defer upgrades to the storm drainage system in the downtown area, and that City’s decision to defer upgrades did not pose an unreasonable risk of harm to plaintiffs. The trial court also found plaintiffs did not prove that the storm drain system created a situation or risk that would not otherwise have been present, nor did they prove that the storm drain system exposed plaintiffs’ property to a risk of flooding *7 that did not otherwise exist. The trial court characterized plaintiffs’ claim as an argument that City did not do enough to protect their property.
As to plaintiffs’ dangerous condition of public property cause of action, the trial court concluded the storm drain was designed to a 10-year storm capacity, and that it performed as expected. The court concluded that the risk identified by the 1993 Study was of nuisance flooding, which did not create a substantial risk of injury to members of the general public. It also weighed the likelihood and seriousness of the potential injury against the practicality and cost of protecting against the risk of injury and concluded that any failure to take steps to protect against the risk of injury was reasonable.
DISCUSSION
I
Inverse Condemnation
A. Rule of Reasonableness versus Strict Liability
Plaintiffs argue the applicable standard of liability for inverse condemnation under these facts is strict liability, and that the trial court erred in applying a rule of reasonableness. Plaintiffs argue there are only two exceptions to strict liability in an inverse condemnation action, and that neither exception is applicable here. Plaintiffs claim the only two exceptions to the rule of strict liability are: (1) where the public entity as an upper riparian owner would otherwise be privileged to drain surface water into a natural watercourse, and (2) where the public agency undertakes a flood control project to relieve from flooding lands historically subject to flooding. Plaintiffs argue the exceptions do not apply here because City’s storm drain system did not discharge surface waters into a natural watercourse, and it was not a flood control project for the protection of lands that were historically subject to flooding.
The question of whether to apply a standard of reasonableness is a legal issue we
review de novo. (
Gutierrez v. County of San Bernardino
(2011)
Inverse condemnation cases originally were analyzed with reference to traditional tort and property law concepts under the assumption that inverse condemnation liability tracked private party liability. ( Bunch v. Coachella Valley Water Dist . (1997) 15 Cal.4th 432, 439 ( Bunch ).) The Supreme Court changed this assumption in Albers, supra, 62 Cal.2d 250, which held that a property owner may recover just compensation from a public entity for “any actual physical injury to real property proximately caused by [a public] improvement as deliberately designed and constructed . . . whether foreseeable or not.” ( Id. at pp. 263-264.)
Albers, supra
,
Belair v. Riverside County Flood Control Dist
. (1988)
Belair adopted a rule of reasonableness rather than one of absolute liability because absolute liability would discourage beneficial flood control improvement, but would still compensate for losses that were unfairly incurred. ( Belair, supra , 47 Cal.3d at p. 565.)
The Supreme Court has since followed the
Belair
rule of reasonableness, refining
its application in
Locklin, supra
,
Locklin, supra
,
Although
Locklin
involved a natural watercourse, it made two pronouncements
that are applicable here. First, it stated that a landowner’s conduct in using or altering
property in a manner affecting the discharge of surface waters onto adjacent property is
subject to a test of reasonableness. (
Locklin, supra
,
In
Bunch, supra
,
Plaintiffs cite two cases,
Yee v. City of Sausalito
(1983)
We thus reject the first part of plaintiffs’ contention--that the rule of reasonableness applies only where surface waters are discharged into a natural watercourse or the result of a flood control project for the protection of lands that were historically subject to flooding. We next consider the second part of plaintiffs’ contention.
Bunch
represents an expansion of the rule of reasonableness set forth in
Belair
and
Locklin
beyond the context of flood control improvements along natural watercourses.
Bunch
applied the rule of reasonableness even though the water district had diverted and
rechanneled the water. (
Bunch, supra
,
Bunch
should not be read so narrowly. First, the actual holding was that the
“reasonableness test applies to cases involving public flood control works that cause
physical damage to private property,” and “that courts should use [the
Belair
and
Locklin
]
factors in cases where a public entity’s flood control measures, designed to protect
against potentially dangerous periodic flooding, cause property damage.” (
Bunch, supra
,
Also,
Bunch
indicated
Belair
and
Locklin
are not to be narrowly interpreted. In
response to the Bunches’ argument that the rule of reasonableness should apply only
where the public entity’s actions would have been privileged under common law,
Bunch
responded that “
Belair
warned against limiting application of its rule to cases involving
previously privileged conduct.” (
Bunch, supra
,
In considering inverse condemnation liability, courts must balance the interests of property owners, who should not be required to contribute more than their fair share to the public undertaking, with the “possibility that imposing open-ended liability on public entities charged with creating and maintaining flood control improvements will discourage the development of needed public works.” ( Bunch, supra, 15 Cal.4th at pp. 450, 449.) That a certain harm is foreseeable does not necessarily mean the public entity is unreasonable in failing to protect against it if the probability, frequency, and magnitude of the damage is low in relation to the cost and ability to protect against the harm. ( Ibid .)
Bunch
predicted the circumstances of this case when it held, “the placement,
design, and construction of even the most effective system inherently involve a complex
balancing of interests and risks. Whatever choice the responsible agency makes will
necessarily affect the patterns of flooding in the event the project fails, and will almost
certainly increase certain risks in order to reduce others. The dangers posed to individual
lands by the failure of any public flood control project are ‘potentially enormous’ and
sometimes deserve compensation. However, strict and ‘open-ended’ liability for the
failure of a project whose overall design, construction, operation, and maintenance was
‘reasonable’ would unduly deter the development of these vital bulwarks against
common disaster. [Citation.] [¶] In the context of inverse condemnation, therefore, a
*13
flood control agency does not necessarily exact ‘disproportionate,’ and thus compensable,
contributions from particular landowners simply because it constructs adjacent flood
control improvements that may alter how floodwaters will affect those landowners if the
improvements fail to contain the flow.” (
Bunch, supra,
The trial court properly concluded that the correct standard in determining City’s inverse condemnation liability was a reasonableness standard.
B. Trial Court Properly Applied the Reasonableness Standard
The trial court considered eleven factors in concluding City acted reasonably. The
factors were set forth in
Locklin, supra
,
We review the court’s factual findings that City acted reasonably under the
substantial evidence standard. (
Gutierrez
,
supra
,
1. Overall Public Purpose
We agree with the trial court that an important public purpose was served by the storm drain system, which was constructed to control surface water and flooding. The system did not fail, but was unable to drain the amount of water entering the system. Nevertheless, there was a benefit to having some storm drain capacity that would prevent some flooding.
2. The Degree to Which Plaintiffs’ Loss is Offset by Benefits As the trial court stated, the extent of plaintiffs’ damage is unknown because the damages phase of the trial was bifurcated. However, plaintiffs undoubtedly have benefited from the storm drain system, even though it was inadequate in this instance to prevent flooding to plaintiffs’ property.
3. Availability to Public Entity of Feasible Alternatives with Lower Risks There was evidence that even if funding had been available, the downtown area was a low priority for an upgrade in capacity because the need was greater elsewhere. Additionally, the recommended design flow upgrade for most of the facilities at issue was for a 25-year storm. Even if the upgrades had been made, flooding may have resulted from the storm in question because it exceeded a 25-year storm.
4. Severity of Plaintiffs’ Damage in Relation to Risk-Bearing Capabilities The trial court concluded plaintiffs could have taken the same steps as the adjacent property owners to mitigate the risk of flooding, i.e., purchasing flood insurance and installing floodgates. The trial court concluded that this would not have been an enormous burden compared to the cost of upgrading the storm drain system to a level that would have prevented the flooding. We agree.
5. Extent to Which Damage is Normal Risk of Land Ownership Any property is subject to some risk for flooding when a particularly strong storm exceeds the storm drain capacity. The risk may be greater depending on the location and surroundings of the property. A property at the lowest point of a watershed is more likely to flood than one at a higher point. Flooding may also depend on the path of uncontained surface waters as they travel to the lowest point, and whether the property is in that path. Although there was some normal risk of flooding of the property given its location, the amount of flooding in this instance may well have been abnormal.
6. Whether Similar Damage is Distributed at Large or Peculiar to Plaintiffs The trial court found that no evidence was presented whether other landowners suffered damage as a result of the storm. There was evidence that the adjacent property owner had incurred the expense of protecting his property by installing a brick wall and floodgates and by purchasing flood insurance. There was no evidence City made a conscious decision to flood plaintiffs’ property in order to spare other properties.
The trial court properly applied the rule of reasonableness in this case to conclude that City acted reasonably in not increasing the capacity of its storm drain system. C. Substantial Causation
Although the trial court did not expressly rule that the storm drainage system was not a substantial cause of the flooding, its findings lead to a conclusion of no substantial causation. We agree that plaintiffs failed to prove the storm drainage system was a substantial cause of their damage because the system did not fail, it was simply overwhelmed by the amount of water the storm deposited into the system.
Belair
recognized that inverse condemnation liability requires a showing of
proximate cause, and “in order to establish a causal connection between the public
improvement and the plaintiff’s damages, there must be a showing of ‘ “a substantial
cause-and-effect relationship excluding the probability that other forces
alone
produced
the injury.” [Citations.]’ [Citation.]” (
Belair, supra
,
In the present case, the public improvement did operate perfectly, but the storm exceeded the design capacity. The trial court found that the storm event on February 23, 2009, “overwhelmed the natural watercourse . . . and overwhelmed the storm drain infrastructure . . . .” This caused surface water to backup onto the adjacent road, Railroad Avenue, caused the storm drain inlet on plaintiffs’ property to surcharge, and caused surface water to find the lowest path downstream via Court Street, another adjacent road. It found that City’s storm drain pipes were operating free of any obstructions. It found that the storm drain system did not fail, and that it performed as designed on a 10-year storm design. 4 However, the system was overwhelmed with water because the storm was consistent with a 100-year storm, rather than a 10-year storm.
The trial court found that plaintiffs did not prove the storm drain system created a situation or a risk that would not otherwise have been present, nor did they prove that the storm drain system exposed their property to a risk of flooding that did not otherwise 4 A witness for City testified the facilities were constructed for a 10-year design flow. *17 exist. The court found plaintiffs’ argument to be that the storm drain system simply did not do enough to protect their property.
Belair
accurately predicted the facts of this case, i.e., the project operated perfectly
but the storm exceeded the project’s design capacity, and concluded that under such facts
the extraordinary storm would be a superseding cause, cutting off the public entity’s
liability for inverse condemnation. (
Belair, supra
,
Plaintiffs cite this court’s decision in
Akins v. State of California
(1998) 61
Cal.App.4th 1, 43-47 (
Akins
), for the proposition that if the public improvement
contributes to the damage, another concurrent cause such as an extraordinarily large
storm, is not a superseding cause. However, the facts of this case align perfectly with the
description of a superseding cause in
Belair
and are dissimilar to the facts in
Akins
.
Akins
involved “an intentional use of plaintiffs’ properties as a retention basin, thereby causing
flooding to lands which were arguably not historically subject to flooding, in order to
protect other property. Thus, the fact that design capacity was exceeded would not make
the rainstorm the sole cause of the damage.” (
Akins, supra
,
Akins, supra
,
Nature was a superseding cause of the flooding, and absent proof of substantial causation, defendant has no liability in inverse condemnation.
II
Dangerous Condition of Public Property
Government Code section 835 provides that a public entity is liable for injury caused by a dangerous condition of public property if: (1) the property was in a dangerous condition at the time of the injury, (2) the dangerous condition proximately caused the injury, (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury that was incurred, and (4) a public employee acting within the scope of employment negligently or wrongfully created the dangerous condition, or the public entity had sufficient notice of the dangerous condition to have protected against it.
Even if the plaintiff can establish that a dangerous condition of public property existed, a public entity is not liable for damage from a dangerous condition if the act or omission that created the condition was reasonable, or if the action the entity took or failed to take to protect against the risk was reasonable. (Gov. Code, § 835.4.) Reasonableness is a question of fact for the trier of fact, and is determined by weighing the probability and gravity of potential injury against the practicability and cost of the action. (Gov. Code, § 835.4; De La Rosa v. City of San Bernardino (1971) 16 Cal.App.3d 739, 749.)
The trial court, acting as trier of fact, found that no dangerous condition existed because neither the storm drain system, nor the decision to defer upgrades to the system created a substantial risk of injury to members of the general public. The trial court further found that even if the storm drain system was a dangerous condition, City’s conduct in not protecting against the risk of injury was reasonable.
We review the trial court’s factual findings under a substantial evidence standard.
(
Biagini v. Beckham
(2008)
Plaintiffs completely ignore the fact that the trial court found no liability for a dangerous condition in part because City was not unreasonable in its decision not to upgrade the system. The determination of reasonableness required the court to weigh “the probability and gravity of potential injury to persons and property foreseeably exposed to the risk of injury against the practicability and cost of taking alternative action that would not create the risk of injury or of protecting against the risk of injury.” (Gov. Code, § 835.4, subd. (a).) The issue is, as indicated, one of fact for the trier of fact, which we review for substantial evidence.
The 1993 Study indicated City ranked the downtown area (where plaintiffs’ property is located) as the lowest priority because the majority of problems in that area consisted of nuisance flooding (less than 2 feet deep, with low velocities) in the streets. The trial court found that the Study estimated the cost of improvements to the deficient storm drain facilities in the downtown area to be $7.5 million, and the cost for all other deficient storm drain facilities throughout the city to be approximately $14.6 million, a finding plaintiffs do not dispute. The trial court also found that in the early 2000’s, City considered the storm drain utility to be grossly underfunded and lacking in available funds for improvement of the system, a finding plaintiffs do not dispute.
Because there was evidence that the risk of injury was small in relation to the cost of repairs, there was substantial evidence to support the trial court’s conclusion that City *20 acted reasonably in its decision not to upgrade the system. Thus, even if the trial court had concluded the storm drain system was a dangerous condition of public property, there would be no liability.
DISPOSITION
The judgment is affirmed. Defendant City shall recover costs on appeal. BLEASE , J.
We concur:
RAYE , P. J.
BUTZ , J.