Burns v. City of Los Altos

Filed 8/24/06 Burns v. City of Los Altos CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Plaintiffs Thomas and Deborah Burns appeal from a judgment after a court trial in their action for inverse condemnation, nuisance, and trespass. They contend that the trial court erred in finding that the sewer maintenance practices of defendant City of Los Altos did not cause the damage resulting from the intrusion of sewage into their home from a blocked main line. They further argue that the court incorrectly applied Civil Code section 3482 to their nuisance claim and erroneously found their trespass claim barred by Government Code section 910, part of the Tort Claims Act. We find no error and therefore must affirm the judgment.

Background[1]

Plaintiffs' residence was constructed during 1983 and 1984, and plaintiffs moved in on October 19, 1984. The construction was completed, inspected, and approved without the installation of a "backwater valve" or backflow device to protect the property from the backflow of sewage. Plaintiffs lived in this home without a major sewer problem until February 3, 2003, when the residence was flooded with sewage and contaminated water from a blocked sewer main.

In April 2003, after their government tort claim was denied, they sued the City of Los Altos (the City) for inverse condemnation, negligence, nuisance, and trespass. Plaintiffs alleged that the City's inadequate operation and maintenance of the main sewer line had led to the sewage spill, which inflicted significant damage on the structure and contents of their house and displaced them from the residence during its decontamination.

Plaintiffs' legal address is in Los Altos, but the property is physically located in an unincorporated portion of Santa Clara County (the County). It was the County's building department that inspected the house during its construction and issued a permit. Among other things, the building inspector approved the connection to the City's main sewer line through a sewer "lateral." Thomas Shih, a county building inspector since 1981, testified that the 1979 version of the County's building code applied to the construction of plaintiffs' residence. Section 409 of that code, which was based on the same provision in the Uniform Plumbing Code, required a backwater valve when the flood level rim was lower than the curb or property line. The measurements taken for the building permit were made at the construction site on February 23, 1984. At that time the level of the flood rim and the property line were about the same. Consequently, according to plaintiffs' experts, under section 409 of the Uniform Plumbing Code, a backflow valve would not have been required.

The elevation apparently changed significantly after that inspection, however. On cross-examination, Shih testified that on the day of the "spill," the shower drain inside was 3.91 feet lower than the manhole cover immediately upstream of the residence. If the conditions had been the same when the plumbing plans were approved, then a backflow device would have been required. In addition, testimony from civil engineer James Schaff indicated that on February 23, 1984, the depth of the cleanout--measured from the top of the trench (at the height of the property line) to the top of the lateral-- was six and a half feet. During the investigation of this case about 20 years later, the depth was nine feet, five inches, which indicated to Schaff that some improvement work had been done on the property since the County's inspection had been done. The most likely time that such work would have been performed was between the February 1984 inspection and the October 1984 date when plaintiffs moved in, because Schaff had understood that no improvements were made on the property after plaintiffs moved in. If the level of nine feet, five inches had existed at the time of the original inspection, it would have called for a backflow device.

Plaintiffs argued (and continue to argue on appeal) that the County's building code, and not the City's ordinances, was the "exclusive" law applicable to construction of their residence. The City, however, maintained-- and the trial court agreed-- that sewer provisions in the City's ordinances applied to plaintiffs' property, even though it was located outside the City. Specifically, section 92 of Ordinance No. 125 required "building sewers and lateral sewers" to be constructed "in accordance with the requirements of the County and the requirements of the [City]. In case of conflict the more stringent shall apply." Section 162 of the same ordinance stated: "Permission shall not be granted to connect any lot or parcel of land outside the [City] to any public sewer in or under the jurisdiction of the [City] unless a permit therefor is obtained. The applicant shall first enter into a contract in writing whereby he shall bind himself, his heirs, successors and assigns to abide by all ordinances, rules and regulations in regard to the manner in which such sewer shall be used, the manner of connecting therewith, and the plumbing and drainage in connection therewith and also shall agree to pay all fees required for securing the permit and a monthly fee in the amount set by the [City] for the privilege of using such sewer." Finally, section 154 of the ordinance provided that an applicant's signature on an application for a permit "shall constitute an agreement to comply with all of the provisions, terms and requirements of this and other ordinances, rules and regulations of the [City] . . . . Such agreement shall be binding upon the applicant and may be altered only by the [City] upon the written request for the alteration from the applicant."

Another ordinance, No. 77-6, required the installation of a backflow device on every sewer lateral serving an individual building. The device also had to be installed in existing sewers if the lowest drain opening in the building was less than two feet above the rim of the nearest upstream manhole.

The trial court determined that these provisions together required installation of a backflow device on plaintiffs' property, and that sewage would not have intruded into their home if the valve had been in place. In other words, the court concluded, the absence of this preventive device "defeated the proper functioning of the sewer system as deliberately designed and constructed." This finding was based in part on another section of Ordinance No. 125, which described the habitation of any building in violation of City ordinances as a public nuisance. The court found this to be a "strong public statement which, at the very least, leads to a reasonable inference that the lack of such a device defeats the deliberate design of the City's sewer system." Accordingly, the court concluded that the City's sewer main had not caused plaintiffs' damages. The court further found that the City's liability depended on its having engaged in a deliberate plan or a calculated risk by implementing maintenance plans that it knew were inadequate and would likely cause damage to users of the system. Here, that situation was not present; instead, "the City adopted, funded and implemented a proactive plan of sewer maintenance intended to keep the City's sewer mains flowing without obstruction." Consequently, the City's maintenance program "was not, under the facts of this case, a legal cause of Plaintiffs' damage."

The trial court went on to adjudicate the nuisance and trespass causes of action. The nuisance claim failed for two reasons: first, the City's conduct was not a "legal cause" of injury to plaintiffs; and second, Civil Code section 3482 barred a finding of nuisance. The trespass allegation, the court ruled, pleaded a common-law tort for which recovery from a public entity was not permitted. In any event, the evidence did not demonstrate to the court that any intentional, negligent, or reckless act by the City, or any ultra-hazardous activity, had caused an unlawful interference with plaintiffs' possession of their property.

Discussion

Plaintiffs insist that the issues on appeal are confined to questions of law. They do not explicitly assert insufficiency of the evidence to support the trial court's factual findings; instead, they maintain that the court applied the wrong standard of causation with respect to their claim of inverse condemnation. As to nuisance, they contend that the court misapplied Civil Code section 3482; and as to trespass, they argue that the court erroneously found their claim barred by Government Code section 910.

Although it is apparent from plaintiffs' argument that they disagree with the factual findings of the trial court, we accept their assertion that they raise only legal questions based on undisputed facts. We will therefore address the trial court's rulings on the law applicable to the facts as found by the court, but we will not engage in a review of the sufficiency of the evidence to support the lower court's factual determinations, as we have not been asked to do so. To the extent that mixed questions of law and fact are presented, we will consider only whether the trial court selected the applicable legal principles and whether it applied those principles to the facts. (See Ali v. City of Los Angeles (1999) 77 Cal.App.4th 246, 250; CUNA Mutual Life Ins. Co. v. Los Angeles County (2003) 108 Cal.App.4th 382, 391.)

1. Inverse Condemnation

Plaintiffs challenge the trial court's determination that their damages were not caused by the City's operation and maintenance of the sewer system. Underlying this general contention are two narrower questions: whether the City's maintenance of the sewer system was in accordance with a deliberate plan or omission; and, if so, whether its deliberate conduct or failure to act was a substantial cause of the harm suffered by plaintiffs. Only if the first question is answered in the affirmative is the second question necessary for a verdict of liability.

The principles governing inverse condemnation are rooted in Article I, section 19 of the California Constitution, which provides: "Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner." When, as here, a public entity's maintenance of a public improvement is in question, its liability for inverse condemnation necessitates a finding that the entity engaged in "a deliberate act to undertake the particular plan or manner of maintenance." (Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 742; see also Bauer v. County of Ventura (1955) 45 Cal.2d 276, 285-286 [deliberate taking or damaging for maintenance is compensable act].) Simple negligence cannot support a constitutional claim of inverse condemnation. (Ibid.) Thus, poor execution of the entity's maintenance plan is by itself insufficient to constitute a taking. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 87; Bauer v. County of Ventura, supra, 45 Cal.2d at pp. 285-286.) On the other hand, liability can be shown if the entity "was aware of the risk posed by its public improvement and deliberately chose a course of action -- or inaction -- in the face of that known risk." (Arreola, supra, 99 Cal.App.4th at p. 744.)

In Arreola, supra, we found substantial evidence supporting a determination that two counties and their water agencies had maintained a levee project in accordance with deliberate policies which had allowed the buildup of sandbars and vegetation, thereby clogging the channel. When the levee failed and flooding occurred, the defendants were held liable, because they had deliberately continued the inadequate maintenance practices for 20 years notwithstanding their knowledge of the risk of flooding. (Id. at p. 746.) In upholding the trial court's finding of liability, we examined two other inverse condemnation cases involving deficient maintenance. One was McMahan's of Santa Monica v. City of Santa Monica (1983) 146 Cal.App.3d 683 [disapproved to the extent that it applied strict liability in Bunch v. Coachella Valley Water Dist. (1997) 15 Cal.4th 432, 443]). In McMahan's, the defendant city was liable because it had taken a "calculated risk" by adopting and following a water-main maintenance program it knew to be inadequate. (146 Cal.App.3d at p. 697.) In the other case, Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596, the defendant city had no testing program to identify cast-iron pipes requiring immediate replacement; instead, it learned about the need for replacement only when a pipe broke, and it had denied repeated requests for water rate increases to fund pipe repair. Reversing the judgment for the city, the reviewing court held the city liable because it had "deliberately designed, constructed and maintained" its water delivery system without any method or program for monitoring the inevitable deterioration of the pipes "other than waiting for a pipe to break." (Id. at p. 607; cf. Paterno v. State of California, supra, 74 Cal.App.4th 68, 96 [if defendants knew about abandoned piping system and chose to leave it in place, plaintiff might be able to show a plan to accept the risk of levee failure].)

In this case the trial court expressly found that the City had not adopted, implemented, or funded a maintenance plan that it knew was inadequate and that created a calculated risk of damage to users of the sewer system. It rejected as unpersuasive the opinions of plaintiffs' experts who testified to the contrary. The court distinguished McMahan's because here the maintenance program, "as deliberately designed and constructed, was proactive, i.e. undertaken in anticipation of potential but unrealized problems rather than in reaction to a pre-existing problem." And in contrast to Pacific Bell, there was no evidence that defendant had followed a " 'replace when it breaks' " policy or had turned down rate increases to fund a more proactive approach to sewer maintenance.

Plaintiffs argue extensively that liability was established as a matter of law because the evidence presented at trial showed that their property damage was caused by the City's "deliberate maintenance practices, or more properly, lack of maintenance practices, associated with its sewer system, in the face of known longstanding systemic problems." Plaintiffs specifically contend that the following circumstances compel a finding of causation: (a) the City's "ability" to conduct regular hydroflushing of the system was compromised by limited staff and equipment; (b) the City had failed to visually inspect the entire sewer system before 2003; (c) the engineering division had failed to share information about conditions of the line with the maintenance division; and (d) the City was aware of the frequency of mainline stoppages caused by root intrusion in the three years before plaintiffs' home was flooded.

These circumstances, plaintiffs argue, compel the conclusion that the City's "deliberate maintenance program was utterly inadequate in the face of a known and admittedly 'significant' risk of root intrusion into its sewer system." The root control system employed by the City consisted not of proactive measures but of "reactive (or 'corrective') maintenance," such as root cutters and chain flails, which were used only after roots were detected in the line in the course of hydroflushing. According to plaintiffs, the City instead should have conducted a visual inspection of its entire system before blockages occurred, and it should have implemented a "preventative [sic] root control program to address the problem, such as starting a chemical or foam root control program or 'slip lining' its sewer lines." Plaintiffs further contend that the alleged failure of the sewer system was caused by the City's "voluntary decision" not to fund capital improvement plans (CIPs).

As noted earlier, plaintiffs insist that they are not challenging the sufficiency of the evidence supporting the trial court's factual findings, and consequently they have not framed such a challenge in their briefs. But the success of plaintiffs' arguments turns on acceptance of the premise that an inadequate monitoring practice or capability in itself "constitutes a deliberate plan of inadequate maintenance" and thus a "deliberate act sufficient to impose liability under inverse condemnation." We cannot indulge in this leap of logic in the absence of factual support. The trial court expressly found no deliberate plan that allowed the City to take a calculated risk of sewer stoppages to homes served by the sewer system. Absent such deliberateness, the City's failure to remedy the deficiencies in its maintenance program amounts at most to negligence, which cannot serve as the predicate of liability for inverse condemnation.[2] (Customer Co. v. City of Sacramento (1995) 10 Cal.4th 368, 381-382; see also Paterno v. State of California, supra, 74 Cal.App.4th 68, 87 [for "shoddy maintenance" to be a taking, the plan must be unreasonable, not merely poor execution of the plan].) In addition, the court found, the City's program was proactive, not merely reactive.

Accordingly, if (as plaintiffs contend) the City's inadequate maintenance was the cause of the blockage and thus a substantial cause of plaintiffs' damages, this fact would not save the inverse condemnation cause of action. (See generally Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 559-560 [causation may be established if public improvement constitutes a substantial concurring cause of the injury]; see also California State Auto. Ass'n Inter-Insurance Bureau v. City of Palo Alto (2006) 138 Cal.App.4th 474, 483 [inverse condemnation causation established because blockage occurred in city's sewer main and therefore the public improvement failed to function as intended].) Because the court determined that the sewer failure was not caused by a deliberate maintenance plan, it properly found no liability on the City's part.

2. Nuisance

The trial court found no liability for nuisance on two grounds: The City's conduct was not the "legal cause" of the damage suffered by plaintiffs; and Civil Code section 3482 (hereafter section 3482) precluded recovery on the specific facts presented. The second ground is insufficient to support the judgment. Section 3482 states that no act "done or maintained under the express authority of a statute can be deemed a nuisance." It is settled that even though acts authorized by statute cannot give rise to nuisance liability, "the manner in which those acts are performed may constitute a nuisance." (Friends of H Street v. City of Sacramento (1993) 20 Cal.App.4th 152, 160; accord, Jones v. Union Pacific Railroad Co. (2000) 79 Cal.App.4th 1053, 1067.) If the City performed its maintenance of the sewer system in a manner that constituted a nuisance, section 3482 standing alone would not preclude liability.

The first ground presents a different story, however. The trial court apparently accepted the City's argument that it was the absence of a backflow device that caused the harm to plaintiffs' property. Plaintiffs do not argue on appeal that there was no substantial evidence supporting the finding that the City's conduct was not the proximate cause of the sewage intrusion. The parties' stipulation at trial did not resolve this question.[3] Accordingly, we cannot disturb the trial court's factual finding that proximate cause was not proved in the nuisance cause of action.

3. Trespass

In rejecting plaintiffs' trespass claim, the trial court relied in part on a provision in the Tort Claims Act that exempts public entities from liability except as otherwise specified by statute. (Gov. Code, § 815; see Odello Bros. v. County of Monterey (1998) 63 Cal.App.4th 778, 792.) The court noted that plaintiffs had not identified a statute permitting recovery for trespass from a municipal entity. On appeal, plaintiffs do not address this aspect of the court's ruling, but discuss only the pleading procedures for filing claims with the entity involved (Gov. Code, § 910). We see no error in the court's adjudication of this cause of action.

Disposition

The judgment is affirmed.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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PREMO, J.

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[1] Plaintiffs' summary of facts consists of statements without reference to the record. Contrary to the representation in their reply brief, they do not compensate for this violation of California Rules of Court, rule 14 by citing the record for some factual assertions in the discussion. Statements made without proper citation are useless to the reviewing court and will be disregarded.

[2] The trial court also noted that a cause of action for negligence against the City had previously been summarily adjudicated in the City's favor.

[3] The stipulation at trial, which plaintiffs contend established causation, pertained to the fact that they had "suffered property damage as a result of the sewer intrusion." Whether the cause of that intrusion was the City's conduct or the absence of a backflow device, however, was a factual issue that the court resolved in the City's favor.