*1 Dist., Two. No. 17150. Fourth Div. Apr. 1977.] [Civ. ELLENA,

JOHN B. Plaintiff Appellant, CALIFORNIA,

THE STATE OF Defendant and Respondent.

Counsel

Goldstein, Goldstein, Barceloux, Barceloux & P. Goldstein, M. Burton J. Golub, Stewart, Keith S. E. Ronald Thomas A. Ralph Humphreys, Seaton, Jefferson E. and M. Reed Hunter for Plaintiff and Peyser Appellant. Fenton, S. A. Robert L. Robert W. Vidor

Harry Joseph Montoya, Meyer, and Jack M. Miller for Defendant and Respondent.

Opinion By a TAMURA, condemnation, stipulated judgment J. State of California of land across acquired parcels plaintiff’s property the construction of a of a segment freeway. During prolonged rainstorm, suffered considerable plaintiff’s flood damage; fill acted as a dam and freeway the accumulated surface waters discharged through freeway drainage system outletting caused substantial erosion and remaining property Plaintiff1 channeling. the instant action for brought two causes of action: The alleging first that the flood was caused charged construc- design, tion and maintenance of the and the freeway second improvements that the were the alleged result proximate negligent construction and maintenance of design, public improvements. *6 state defenses, number of interposed the defense that the including in the eminent domain stipulated action judgment was res judicata from precluded his plaintiff recovering complaint.

The trial was bifurcated and the res defense was tried first to judicata the court without a an extended jury. Following evidentiary hearing, trial rendered a memorandum of intended decision judge holding “the doctrines of res and collateral judicata estoppel” precluded plaintiff 1Plaintiff John Ellena died after the action and the was filed suit has thereafter been however, convenience, under the executrix his will. For we shall refer prosecuted as still Mr. Ellena. being from for the flood to his land. The court directed recovering counsel for the state to unless were prepare judgment findings were not and the court and entered requested. Findings requested signed action with judgment Plaintiff dismissing plaintiff’s prejudice. appeals from the judgment.

The central issue on this is whether appeal prior stipulated in condemnation from precluded plaintiff maintaining instant action. We have concluded that the trial determination judge’s of res and collateral principles judicata estoppel precluded plaintiff on his must be recovering complaint upheld.

Facts in the favorable to the the evidence most Viewing light party below, must, the facts be summarized as follows: as we may prevailing Condition Property Before alluvial fan which lies between

Plaintiff’s is on an Cajon property the San Gabriel Creek at the base of the foothills of Creek Lytle visualized Mountains. The may configuration property roughly “U,” “A” as the letter above the letter with the of the A imposed apex in a and the external lines the A and direction northwesterly pointing U as base of the foothills.2 The crossbar of representing surrounding A location represents approximate freeway segment A area within the letter drains crossing plaintiff’s property. Generally from west to east and the area the U from east to west. represented by Where the two areas from north to south join, drainage generally Creek wash area. The into has been used for Lytle many as a vineyard. years waters across the alluvial fan surface flowing represented A confined to definite water courses but flow are not

letter along shifting, location, to storm. from storm veins width varying depth tangled Action Condemnation and the The Public Improvements the water shed to define the state made a In 1963 study hydrological *7 detailed and thereafter plans above the area freeway prepared proposed convenient means of visualizing the above 2 We credit the state’s for attorney devising the property. for The for the and. provided plans freeway improvements. appurtenant cuts and elevated across by an plaintiff’s property accomplished freeway waters under structures to surface fills and included four drainage convey to From south north the and onto remaining freeway plaintiff’s property. the the across drainage along freeway segment plaintiff’s property, CMP, CMP, 54-inch a of the A 30-inch a structures consisted following: CMP, 24-inch a 12 foot RCB.3 and by a with Mr. 1966 state met Ellena the

In agent right-of-way spring and showed him the the the cut location of right-of-way freeway maps, areas, fill him and and advised of the facilities. proposed drainage In 1966 the state filed its eminent action domain August (People lands S.B. Court No. 132939) Superior acquire Swertfeger, of the The and others for the construction freeway. right-of-way the size attached to the showed location and of the complaint maps Plaintiff an answer facilities. filed drainage proposed freeway $178,000 land he claimed as of the taken which value complaint $376,000 and as severance damages. commenced construction of and

In March 1967 the state freeway was On structure October 1967. Decem- the last completed drainage in condemnation was entered ber stipulated to be “that paid just compensation taking adjudging $155,765” is the sum of with On interest. together property] [plaintiff’s with and same the state the award the court obtained a day deposited final order condemnation.

The Flood Damage was an and In 1969 there unusually heavy January February area resulted in rainstorm in the which saturated the soil and prolonged flow hillsides. concentrated runoffs from heavy surrounding erosion and facilities caused considerable through freeway drainage outlets. In below drainage channeling plaintiff’s property addition, was some of the foot RCB by wing damaged, silt, of Devore were and a smaller blocked portion pipes drainage state which traversed been relocated Road which had washed out. northwest freeway metal RCB stands for reinforced concrete box. 3 CMP stands for corrogated pipe

253 that the who testified The state witnesses expert presented reason of construction freeway plaintiff’s in 1967 when foreseeable facilities as reasonably proposed drainage entered into a judgment. stipulated parties Contentions did

Plaintiff of res and collateral (1) judicata estoppel urges: Principles him not from his action because claimed maintaining preclude resulted from failure of the (a) public improvements in the manner were not foreseeable (b) operate proposed the time the at was entered and the court (2) stipulated judgment excluded extrinsic evidence offered to show that the erroneously parties intended to as to the value of the land taken but not as to stipulate only severance From the discussion we have concluded damages.4 ensuing attacks must fail. judgment upon

I At the we outset review some of the involved in this legal principles appeal. are

There two res effect of a final aspects judicata on the merits: bars the those in (1) (or judgment parties with from the same cause of action in a them) litigating privity those in with (2) (or them) proceeding parties subsequent privity from are in a on a collaterally estopped litigating subsequent proceeding different cause of action issue and determined in any actually litigated Russell, 229, 12 the former re Cal.3d 233 (In proceeding. Cal.Rptr. [115 511, Bd., 524 P.2d Busick v. 1295]; Workmen’s 7 Cal.3d Comp. Appeals 42, Martin, 967, 972-973 500 P.2d Martin v. 1386]; Cal.Rptr. [104 752, 526, Cal.3d 470 P.2d Bernhard v. Bank 662]; Cal.Rptr. [87 America, 807, 19 Cal.2d P.2d Ford Motor Co. v. 892]; Superior [122 Court, Rest., 447-448 Cal.Rptr. Judgments, [94 127]. a., 68, com. To the extent that the instant action seeks to 293-295.) § pp. recover from the construction of the damages resulting improvements case, manner in the it involves the same eminent domain proposed cause of action and issues which precluded litigating were or could have been action. former City (Klopping litigated Whittier, 1, 500 P.2d To the 1345].) 8 Cal.3d of action.

4Plaintiff does his cause not of the dismissal of negligence complain *9 254 of that claim for involves a different cause

extent plaintiff’s damages action, issues which were he is those collaterally estopped litigating determined in action. and the eminent domain litigated actually all fix the A must once for condemnation award of reason the construction will occur of that public reasonably by rel. Pub. Wks. ex in manner Dept. proposed. (People improvements Silveira, 604, 260]; 621-622 East v. 236 Bay Cal.Rptr. Cal.App.2d [46 Lodi, 740, v. 120 762 P.2d 532].) Mun. Util. Dist. Cal.App. [8 deed, it been Where has taken condemnation or by acquired by property that owner been all must be assumed has for compensated to foreseeable his from the reasonably resulting property and the of the construction acquisition proposed improvements. public 1024, v. 9 1030 (See County Orange, Reinking Cal.App.3d [88 whether the be 695].) Cal.Rptr. Consequently, acquired property consent, condemnation or the landowner is “from by by estopped afterward action for the or future prosecuting any past, present, occurred, occur, have or be reason of may reasonably expected by natural, use” of for the necessary, ordinary public Co., it which was v. 61 (Sternes Sutter Butte Canal purpose acquired. 737, 743 P. italics v. Los 66], Albers Cal.App. supplied; County [216 250, 89, 62 Cal.2d 265-266 P.2d 398 129].) Angeles, Cal.Rptr. [42 of the res and collateral defenses judicata estoppel validity as well and an case factual as issues the instant legal presented The trial was held to resolve the factual issues. trial evidentiary of the factual issues on collateral determination court’s estoppel bearing this court unless a the former binding stipulated judgment upon one be drawn from conclusion is that can only contrary Wks., 710, ex 13 Mehl v. rel. Pub. Cal.3d the evidence. (See Dept. People 625, P.2d rendition 532 489].) 715-716 Upon Cal.Rptr. [119 however, decision, neither intended findings requested party judge’s reference of law fact and conclusions despite judge’s express state made. On this were no need for such findings Accordingly, requests. record, of dismissal. is in favor of the intendment judgment every facts found all the trial It necessary must judge presumed Inc., 606, Restaurants, 48 Cal.2d v. (Reid Valley judgment support 633, 649-650 v. 60 P.2d Philbrick 473]; [131 Huff, Cal.App.3d 609 [311 if the be affirmed must implied 733]), Cal.Rptr. Law (Environmental substantial evidence are findings supported Madera, Fund, Inc. v. Town Corte Cal.App.3d [122 Childers, 218]). P.2d Childers 282]; mind, With the we turn to conten- foregoing principles tions.

II Plaintiff’s is that the principal argument stipulated judgment does not him from the action because preclude (a) maintaining present the to his land was caused the failure of the damage by public in the manner and the improvements operate (b) proposed were not foreseeable. We the reasonably reject argument. drains, there was evidence failure of bench the

Although partial absence of it must be that the court trial express findings presumed found that such failure not a was cause of the proximate damage lands and that the that did occur were the plaintiff’s reasonably foreseeable of the construction the as consequences improvements “ context, In this cause a convinc- proposed. proximate ‘requires of a “substantial” cause-and-effect which ing showing relationship ” excludes the that other forces alone probability produced injury.’ Shasta, (Olson 77], County from Van Inverse Condemnation: Unintended quoting Alstyne, Physical L.J. There 435-436.) was substantial Damage, Hastings evidence to on cause. support implied findings proximate

The evidence was uncontradicted that the were con- improvements structed accordance with the state’s at the locations design plans on the The state’s testified that depicted right way maps. expert given fan, that the fact land was on an alluvial it was plaintiff’s that the foreseeable concentrated of flood waters from four discharge outlets onto land would cause erosion and drainage plaintiff’s remaining The same testified that while of the some smaller channeling. experts became silted this caused some of the flood drainage pipes up, simply to “end run” waters around the freeway segment discharge upon lands not owned and that to the extent by plaintiff blockage facilities, increased flow in some of the it have larger drainage may resulted in additional erosion-at the outlet of those drains but at slight the same time reduced blocked erosion at outlets of the pipes.

state further testified that facilities benefited engineers drainage lands flood waters to areas by .confining specific thereby of all of lands. avoiding general flooding plaintiff’s remaining

Plaintiff to undermine the of the state’s sought credibility experts by cross-examination their was suggesting opinion foreseeability that after the based evidence state upon hindsight flooding, some of the to avoid future to the redesigned improvements However, needless to freeway appurtenant improvements. evidence, resolution of conflicts assessment credibility say, and the to be of the witnesses experts weight given opinions of the trier of fact. all matters within the exclusive were province the court below Based properly findings, implied upon of res judicata determined principles precluded of Civil Procedure Former Code action. from maintaining present *11 was entered 1246 in effect when the section stipulated forth in must set in an eminent domain action that a landowner provided taken and claimed for the value of his answer the amounts any parcel as 1248 defined severance Former section severance damages damages.5 reason of to the not taken by portion damages accruing in the manner “and the its severance construction improvements Thus, the for the foreseeable claim damages reasonably proposed.” of the construction and maintenance drainage consequences in the eminent domain facilities should have been claimed and litigated Indeed, the eminent domain action. answer to complaint that “the made severance an issue by alleging specifically damages and to the of the real by taking damage remaining portion property” as is the “the construction of proposed by plaintiff improvements $376,000.” sum of to his land evidence of flood that

Plaintiff damage potential argues as too excluded in the condemnation action have been would being it true that a landowner remote. While may speculative in an eminent domain or not claim conjectural damages speculative Co., ex rel. P. W. Schultz Dept. (People proceeding that another P.2d this is 117]), saying way simply foreseeable need not be asserted which are not reasonably damages its that the eminent domain action. By implied finding foreseeable, were the trial court necessarily rejected reasonably the claim that the were and conjectural. speculative

The seizes State Jackson’s dissent testimony upon Engineer fan, “when an alluvial it’s future you’re crossing impossible predict of the Code of Civil Procedure was revised and 5 The eminent domain chapter recodified in 1975. flow with conclusion, to the patterns certainty” leaps unsupported by record, that the state’s “affirmed that what experts again again was not foreseeable.” italics.) happened (Original testimony singled out the dissent to the flow of surface waters pertains pattern flowing down across to the embankment. plaintiff’s property freeway Engineer Jackson testified that such waters across alluvial fan would flowing not be confined to definite water courses but would run in veins tangled location, and width from storm to varying storm. Both depth, Jackson and Dibble testified and without engineers repeatedly equivoca- tion, however, foreseeable, that it was even to a layman, when the surface waters reached the embankment and were freeway collected and drains, the four cross the concentrated discharged through Thus, flow from them would result in erosion. there was issuing substantial evidence the trial supporting judge’s implied finding foreseeability. state,

The dissent however, on to that his more fundamental goes with our lies in our treatment of as a quarrel analysis foreseeability of fact. It is that had the eminent domain action question urged gone trial, evidence of flood lands potential plaintiff’s remaining *12 reason of the construction and of the maintenance and the cross freeway drains would have been excluded as too being speculative, conjectural and remote. The cited for this is only authority startling proposition v. 54 217 151, Cal.2d 352 P.2d Ayon, Reliance People Cal.Rptr. [5 519]. on That case involved the of a Ayon trial court’s misplaced. propriety in a condemnation trial the condemnee’s offer ruling of rejecting proof of for interference with his of access to the damages temporary right the remaining property during period public improvement’s construction. In the trial court’s the Court upholding ruling, Supreme interference, unreasonable, held: it is not with (1) Temporary provided the owner’s of access to his the course of right during property construction is while unreasonable and (2) substantial noncompensable; the interference with owner’s construction property rights during may such cannot be recovered before occur damages they compensable, so, because never occur and until do such are they may they damages where the condemnation action is tried (3) purely speculative; before the is constructed and substantial improvement temporary injury construction, occurs the maintain a owner subse- during may property action for such quent damages. bench,

In the case at arewe concerned with a claim for severance from the construction of the damages resulting public improvements with not a claim for interference a manner temporary proposed, the domain owner’s construction. Had eminent action during gone rights trial, evidence of flood lands potential plaintiff’s remaining of construction of the cross reason embankment and by freeway have on of drains would been admissible the issue severance clearly to the of remainder reason and the construction taking (Pac. etc. v. W. H. manner Gas Co. improvements proposed. Co., 565, Hunt 49 Cal.2d & 1044]; Estate 571-575 P.2d Yolo Water [319 Hudson, 48, Co. v. P. & R. 772]; Power Cal. Colusa Hamilton [186 Leonard, 109, 119-120, R 176 Cal. 123-124 P. 878], Co. v. See City [167 Stoskus, Park 567-568 Baldwin Cal.3d P.2d One need not of a 1333].) hydraulic engineer expertise possess rainstorm, surface to foresee that in the event of prolonged heavy embankment waters freeway discharged intercepted by at the would result erosion the cross drains lands remaining through points discharge.6 Wks., 710,: Mehl v. ex rel. Pub. 13 Cal.3d

Citing People Dept. supra, from construction of a damages resulting plaintiff argues public not be to be foreseeable found unless improvement may was future does not landowner Mehl potential damage. apprised to the state for stand for that In that case land deeded proposition. and all with an waiver of claim “any any freeway purposes express construc- reason remaining grantor’s property” tion maintenance of the The state constructed freeway. subsequently it, under surface and installed a channeling freeway drainage pipe court The trial runoffs onto waters and freeway plaintiff’s property. of action cause was not found estopped maintaining the waters the flood caused in inverse condemnation for *13 damage the Court reversed the drained onto his Although Supreme property. it the issue of in of the landowner on favor damages, upheld judgment was to landowner not that the litigate the trial court’s estopped finding the of issue liability. the case is that Mehl and instant critical difference between

The the when were nonexistent former, the for facility drainage plans 565, Co., plaintiff acquired H. Estate Cal.2d Gas. etc. Co. v. W. Hunt supra, 6 InPac. lines defendant’s property. transmission spanning an Defendant, two electrical easement over a adduced testimony who his land by sprinkler system, irrigated would in the event a of electrocution sprinkler pipe on objection danger plaintiff’s this lines. The court held come into contact with the break water to causing power caused to was admissible on issue severance testimony properly of the lines. virtue and the construction transmission remainder taking he told of the state. Nor was any deeded his landowner as had actual as well In the instant case drainage plaintiff plan. proposed before the notice of the constructive judgment stipulated plans the eminent domain entered. way maps appended right and locations of showed dimensions served plaintiff complaint facilities; that he met testified drainage right-of-way agent proposed him the of the with and informed location nature drainage plaintiff constructed; and, to an from to be response interrogatory system for a of the to be former counsel description improvements constructed, the state of the gave general description improvements San and referred on file state’s plaintiff specific design plans Bernardino office which were available for inspection. plans public

Ill that extrinsic evidence was admissible Finally, argues that the in condemnation was intended to to show stipulated judgment resolve the value of the land taken and not issue of only The court severance issue and on that (1) assumption complains: excluded an former erroneously appraisal report prepared by plaintiff’s for use in the condemnation action and the court (2) appraiser from his former erroneously precluded plaintiff eliciting attorney with a his discussions state testimony concerning right-of-way agent preceding stipulated judgment.

Plaintiff’s assumes two That a (1) argument legal propositions: attacked on the it does stipulated judgment may collaterally ground not to the conform that extrinsic (2) stipulation parties evidence is admissible to of a interpret language stipulated judgment. The first is incorrect. A which does legal assumption judgment not conform to a be reformed or contested on direct stipulation may but not be attacked on the it fails to appeal may collaterally ground 485, 490; conform to the v. 43 Cal. (Hobbs stipulation parties. Duff, Yams, Yams 199-200 Nielsen v. 50]; [3 Emerson, P.2d A 281].) Cal.App. judgment by is as conclusive a bar as a rendered after trial. (4 stipulation *14 Witkin, 170, there Cal. Procedure ed. and cases 1971) (2d § Judgment, However, there is to the second cited.) legal assumption validity to resolve extrinsic evidence is admissible in plaintiff’s argument; Beekmann, 276 v. a (Larsen in judgment. ambiguities stipulated 185, 654].) 191 Cal.Rptr. Cal.App.2d [80

260 error committed that the court

Plaintiff claims by prejudicial for the certain extrinsic evidence him from introducing precluding in the the that amount upon compensation agreed showing purpose and taken not was for the value only parcel stipulated judgment of this We address the merits severance argument. damages. been after a contested

Had the in condemnation entered judgment trial, the from would prosecuting present plaintiff manifestly estopped observed, awarded in action. As we just previously compensation for all a condemnation action is to include presumed compensation foreseeable sustained as result of taking use (Mehl In the manner condemner. v.. by proposed Wks., 710, 716; ex Pub. 13 Cal.3d v. rel. Reinking People Dept. supra, 1024, 9 1030.) County By entering Orange, supra, Cal.App.3d bench, of dismissal case at trial judge impliedly judgment now were found that for which seeks the damages compensation action an foreseeable and as a consequence, present have been an issue which could litigate impermissible attempt however, Plaintiff, former action. claims litigated of severance was not intended to resolve the issue stipulated judgment not, therefore, he maintaining precluded instant action. than a is no less conclusive a stipulated judgment

Although v. A 10 entered after trial and contest (A Cal.App.3d very very, judgment 525, cited; Mosk 529 there ex rel. v. 195], cases Cal.Rptr. People [89 166, 203 175 it is axiomatic that 501]) Barenfeld, Cal.App.2d Cal.Rptr. [21 its res effect extends issues within to those embraced judicata only Lux, James, 38, consent & 44 Inc. v. 180 Cal. P. (Miller judgment. [179 Beekmann, Larsen ex 185, 191; v. 174]; rel. supra, Cal.App.2d People 166, 176-177; v. Mosk Drain. Barenfeld, supra, Cal.App.2d Laguna Co., Thus, Dist. v. Charles Martin 169-171 P. 993].) Cal.App. [89 while a into concludes all matters issue stipulated normally put can to restrict its pleadings, parties agree scope expressly Lux, Inc. an issue from the consent & v. (Miller withdrawing judgment. James, see Monolith Portland Cement Co. Public Util. v. supra; Mojave Dist., Mosk ex rel. 639]; People Lux, James, Inc. v. As stated Miller & Barenfeld, cogently supra.) res is to at 44: “The rule of page prevent supra, adjudicata one decision in vexatious and to rest require upon litigation parties withdraw an issue their but where agreed controversy, they expressly not in court, ceases. issue is fact from the the reason the rule *15 and the themselves consented to that method of adjudged, parties having trial are not entitled to invoke the rule which to submit requires parties their case whole to the court. If consent to their they adjudicate differences there is no reason that the court should extend the piecemeal, rules of law to that which had prevent they expressly agreed might done.” (Italics supplied.)

In the case there is no present express language for the severance stipulation issue from judgment withdrawing damage the eminent domain action. Insofar as is here pertinent stipulation that a in condemnation in the simply provided form attached judgment be entered. The attached may form “that the provided just to be for the of said compensation ... is the sum of paid taking parcels $155,765, with interest....” together

Plaintiff, however, that the word is in that argues “taking” ambiguous it could that the signify for the value compensation agreed upon only taken that, therefore, extrinsic evidence was parcel admissible to show that the was not intended to for stipulated judgment compensate severance damages.

We that because of the contractual of a agree aspect stipulated extrinsic evidence be admitted to judgment, may ambiguities resolve Beekmann, its (Larsen 185, language. But 191.) supra, Cal.App.2d for he must not show that the word plaintiff prevail, only “taking” but that the used the word to an ambiguous, parties express agreement withdraw the issue of severance from the damages scope stipulated The to the normal res effect judgment. of a exception judicata judgment, as Lux, articulated in Miller James, & Inc. v. 180 Cal. supra, requires that an otherwise included issue be withdrawn an reservation. express extrinsic evidence failed to show proffered such agreement. for the

Normally, just compensation “taking” eminent domain includes all that will accrue from and the construction of the taking proposed improvements. (People Silveira, ex rel. Pub. Wks. v. 621- Dept. supra, 622.) below, in the court disavowed Interestingly, any in this action the issue; entire severance he attempt litigate damage conceded he was not to recover caused attempting severance of the taken from the remainder part (including damages but such access) severance as accrued from impairment only *16 262 But, construction of the facilities. an

the drainage ambiguity assuming as used in the and the word stipulated judgment assuming “taking” to what that evidence was admissible determine the further extrinsic word, meant that the evidence which complains using plaintiff parties by would not have shown that the was excluded agreed parties erroneously of the action the condemnation to a withdrawing by piecemeal litigation of severance future determination or issue litigation. concerned, the record shows that it Insofar as the appraiser’s report that ever offered in was marked for identification but fails to show it was is, therefore, evidence. the issue of its Plaintiff from raising precluded offered, even had it there have been But been would no admissibility. error in its behind to exclusion. manifest attempt purpose plaintiff’s the the not before court was to show that it did mention get report to of flood land reason the remaining potential damage construction maintenance of the and system. proposed freeway drainage However, or intent of the former subjective appraiser plaintiff’s was irrelevant to issue as to whether the attorney plaintiff withdraw issue from the state had the severance agreed condemnation action. The like other stipulated agreements, judgment, it that be an is immaterial one must construed standard objective it to what meant. had an undisclosed intention or belief as parties Franklin, v. 23 Cal.2d P.2d Brant 16]; (Citron [142 California & Dairies, Inc., 128, 133 Dock 13]; P.2d Consolidated Cal.2d Storage [48 Court, 254].) Co. v. Superior and the between former As to the conversation attorney from to elicit was testimony state way agent, plaintiff permitted right with that he never discussed right problems attorney drainage he discussed the When he was asked whether or else. way agent anyone “Yes,” answered with the he “amounts of settlement” way agent, right made and An was an could before objection objection interposed. sustained the on the discussed and the court ground objection but cannot be altered or modified evidence by parol judgment no further were asked was never stricken. Thereafter answer questions on that attorney subject. would not Plaintiff that the statement that he contends trial judge’s or introduction of evidence alter modify permit parol his excused him to elicit further former from attempting testimony his with the conversation that attorney concerning right-of-way agent his failure to do so should not him from issue of the preclude raising conversation with the admissibility attorney’s right way agent. We agree justified assuming objections *17 further on the he, would have been sustained and that questions subject therefore, the has to raise the issue of the of the court’s right propriety him from the matter further at trial. ruling precluding pursuing However, has shown no foreclosed prejudice by being impliedly further from his former the eliciting testimony attorney concerning with conversation the The offer of made right-of-way agent.7 only proof was that the of the would have shown that by plaintiff testimony attorney the settlement was based on a of value figure upon agreed per acreage the taken. That offer would have more than that part proved nothing former either overlooked of attorney component compensa- ble severance or was satisfied that the flood benefit to damage protection of lands or major exceeded portion plaintiff’s remaining equaled any harm from the cross drains. the most liberal potential Giving interpreta- offer, tion to the it far falls short anof offer to discussions prove with the it was that severance right-of-way agent mutually damage agreed reason of flood by from the construction and potential mainten- ance of the facilities was reserved for future resolution.8 drainage

We conclude that the of exclusion was evidence plaintiff’s proffered nor, erroneous, neither erroneous even if prejudicial. affirmed.

Judgment J.,

Gardner, P. concurred.

McDANIEL, J. I dissent.

As I read it their to majority’s key opinion, appears on the res their there an issue is determination that holding judicata that the to the Ellena lands were implied finding sound, case, If that foreseeable. is it is and the position dispositive trial court be must affirmed.

However, for there to an there finding foreseeability, implied record, to I must be some evidence in record it. As read support 7 Evidence Code that a be reversed for section 354 shall not provides it erroneous it results “and justice exclusion evidence unless in a miscarriage substance, (a) of record The of the excluded that: relevance appears evidence was made known purpose, [¶] asked, the court an offer of or by questions proof, means;...” other any 8 As the state’s observed at oral an on attorney argument, agreement part would be unprecedented. state to such a of a condemnation case piecemeal litigation fact was unforeseen in 1969 as a matter of what totally happened who here state’s engineers facility everyone, including designed state’s affirmed under experts testimony again question. at was not The witness Jackson that what foreseeable. happened again testified, here—and I hate to unknown one keep harping big point “[t]he it, with when but it the case when you’re dealing drainage, you’re fan, flow future an alluvial it’s impossible predict patterns crossing with certainty.” fan the alluvial over

It was this drainage pattern inability predict *18 which what resulted from the runoff turn unforeseen that in made the results? Item: in 1969. What were those the rains heavy accompanied of this there to as because drains failed bench operate anticipated the drains of water cross was a increased flow passing through greatly to the bench the Ellena Next item: onto excluding repairs property. drains, the facilities the runoff and to repairs freeway damaged by from a of to function as failure the entire resulting again design $112,551.25. to if storm amounted the anticipated Surely, consequences foreseeable, were the state’s own would not have engineers design $112,551.25 built a defect into their own structure. knowingly to the In its the certain evidence as majority supporting opinion, points the More remind that of foreseeability. they implied finding particularly, however, state’s “testified and without experts repeatedly equivocation, foreseeable, the that it was even to a when reasonably layman, were collected and surface waters reached the embankment and freeway drains, the cross the concentrated flow four issuing discharged through this result in I from them would erosion.” respectfully suggest noted, the of the bench the real As failure testimony question. begged cross of water the drains increased the flow (unforeseen) through greatly also unforeseen. the such increased flow was drains and thus volume of caused unforeseen volume of flow what the This damage, evidence, extrinsic, it reason and defied of this uncontradicted logic face that the extent the witnesses to have continued for state’s protest of Such statements which did occur was foreseeable. erosion generalized unbeliev- facts were are in the inherently view of opinion physical able.

However, defect there is a fundamental in treatment more as In their case characterizing findings majority. implied “that that did occur were including finding as of the construction of the foreseeable consequences improvements treat as a matter of fact. It is on this basic they foreseeability proposed,” I determination that with the I see that issue one as disagree majority, law. illustrate, To Ellena had taken his case trial in 1967. suppose at that trial had he offered to show Suppose by expert testimony amount of erosion which could later have carved his IF lands through storm, there were to be storm of the size IF the flow over cut were of the volume it which was in and IF the freeway drains were to bench silt and allow this flow to down side of up pour the cut and the four cross drains. In the face of this offer through the trial in trial in would have been faced proof, judge imagined with a determination whether to admit such evidence. legal deciding clear,

It seems in view of the Cal.2d holding Ayon, People 151, 352 P.2d 519], that the trial in the 1967 judge trial would have offer He would have hypothetical rejected proof. considered . too .. to be possible damages “[s]uch *19 speculative recovered] in action.” (Id., 229.) at “Too “not foresee- p. speculative” [that] able” are shorthand forms which describe a determination policy courts which to define of operates perimeters permissible recovery. Ellena abandoned his claim based on that

Although negligence, body of law a valid of kind of determination provides ready analogy here involved. In cases is a matter of law. It is negligence “foreseeability” a label for assessment which leads to or denies the policy imposition of to for the of a failure to behave a within duty pay consequences determined standard of care. factually

The cases of talk cause and proximate foreseeability interchangeably, and, while whether a is care reasonable is a matter of person exercising fact, what is deemed to be the of result the want of reasonable proximate or what care is to be deemed a foreseeable as a of that risk consequence want of reasonable care is a law. question to the hallowed Cardozo risk

Turning language, “[t]he relation; be defines the to be and risk it perceived duty obeyed, imports is risk to another or others within the range apprehension.” Co., v. 99, 100, Island R. 248 N.Y. 339 N.E. 59 (Palsgraf Long [162 A.L.R. 1253].)

266 considerations, otherwise, in a the absence of

Stated overriding policy for owes a in the sense of a liability duty, potential “[defendant with those risks or hazards whose likelihood only damages, respect and hence in made the conduct negligent, unreasonably dangerous, 728, v. Cal.2d 739 68 first instance. (Dillon Legg, [69 [Citations.]” 72, 912, 441 P.2d 29 A.L.R.3d 1316].) Cal.Rptr. if in cases is shorthand label for

Surely, “foreseeability” negligence of those seven which are used as the sum considerations aids policy with care to behave reasonable (Commercial defining legal duty America, Ins. Co. v. Bank Standard Cal.App.3d [129 Derrick v. Ontario 91]; Community Hospital, Cal.Rptr. then it can that 566]), conscientiously urged at bench is as used in cases kind likewise “foreseeability” words, In if at the trial of 1967 the of law. other hypothetical question would have faced with a determination whether trial been legal judge foreseeable, too not erosion were or speculative prospective into factual does that determination become how legal metamorphosed his as one when the a latter effort to losses seeks day recoup Cal.2d 217. prescribed People Ayon, supra, because this reliance on Ayon misplaced opines majority to claim the land owner that case an facts of involved attempt by interference events in nature of for temporary prospective I his construction. with access to suggest property during respectfully difference is not a basis this factual legal distinguishing principle *20 in the offered not because the The court excluded involved. proof Ayon a to be shown would have resulted from thereby temporary damages That but such were too interference because damages speculative. here that is precisely applicable. principle This is of course a a close determination question turning legal upon of and it does the issue to does the not meet state as majority policy, need not of foresee engineer possess expertise hydraulic “[o]ne rainstorm, the event of surface waters in heavy prolonged remain- embankment discharged freeway intercepted at the would in erosion cross drains result lands points through ing end of I have that erosion at the never discharge suggested discharge.” at the time that the drains was not foreseeable the cross judgment to the What was not foreseeable reached was layman by stipulation. the bench drains was that of a engineer” lacking “expertise hydraulic would fail and result in a collection water into the cross drains far in excess of what ever themselves project’s designers contemplated. to the “. . . if the is not

Turning again language Ayon, improvement and, carried result, out as if as a or unreasonable proposed, unnecessary interference with occurs, or access then appellants’ rights possession an action for such have occurred.” they may bring damages they after 217, 229; 54 Cal.2d italics Ayon, added.) (People supra, such cannot be recovered Continuing, before “[b]ut they occurred, have for the obvious reason that never occur.” at they may (Id., situation, to the Ellena 229.) could have p. Applied without years passed there 1969, been a storm the size of the one in and should having such a never occurred, storm have there would have been no for the defect way in However, to have manifested itself. the storm design facility occur, did the defect in did in result substantial to the design lands below the and under the rule laid down Ellena freeway, Ayon, should have been allowed to his action. prove subsequent

Thus of the rule of res the trial court misapplication judicata by to foreclose the an issue which had not operated litigating and could not have been before the rains 1969. late litigated heavy The affirmance of the below countenanced denial of judgment Ellena’s constitutional and as such should not right just compensation I tolerated. would reverse the and allow the case to proceed to the second of the bifurcated trial. phase

A for a McDaniel, J., was denied 1977. petition rehearing May that the should be opinion petition granted. Appellant’s petition for a Court was denied 1977. hearing by Supreme July