Hsu v. Riverside
Transp. Com.
Filed 5/22/13 Hsu v. Riverside Cty. Transp. Com. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
CHING LUNG HSU et al.,
Plaintiffs
and Appellants,
v.
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION et al.,
Defendants
and Respondents.
E054922
(Super.Ct.No.
RIC10014447)
APPEAL from the Superior
Court of
County. Paulette
Durand- Barkley, Temporary Judge.
(Pursuant to Cal. Const.,
art. VI, § 21.) Reversed.
Barry A. Ross for Plaintiffs and
Appellants.
Best Best & Krieger, Mark A.
Easter and Kira L. Klatchko for Defendant and Respondent
Riverside County
Transportation Commission.
Glenn B. Mueller, Ronald W. Beals,
and Jeffrey R. Benowitz for Defendant and Respondent
State of California.
Plaintiffs Ching Lung “Patrick†Hsu
and Wen Sung Hsu brought this inverse condemnation action to recover additional
severance damages for their property near Perris.
Defendant
Riverside County
Transportation Commission (RCTC) filed a motion for summary judgment.
by res judicata and collateral estoppel because plaintiffs had already received
severance damages for the same property in an earlier
Although plaintiffs argued that
there were many factual issues to be tried, the trial court granted the motion
for summary judgment. It found that the
drainage and flooding issues were considered in the eminent domain action and
that the severance damages awarded in the eminent domain action compensated
plaintiffs for all reasonably foreseeable damage to their property caused by
the proposed improvements.
Plaintiffs appeal, contending that
the trial court erred because the issue of flooding was not raised in the prior
action, there are material factual issues, and the flooding was not a
reasonably foreseeable result of the proposed project.
Finding at least three material
factual issues, we must reverse the trial court’s granting of the summary
judgment motion.
I
STANDARD OF REVIEW
Plaintiffs cite the standard of
review as stated in Lona v. Citibank,
N.A. (2011) 202 Cal.App.4th 89: “Summary judgment provides ‘courts with a
mechanism to cut through the parties’ pleadings in order to determine whether,
despite their allegations, trial is in fact necessary to resolve their
dispute.’ [Citation.] A summary judgment motion ‘shall be granted
if all the papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment as a matter
of law.’ [Citation.] ‘The pleadings determine the issues to be
addressed by a summary judgment motion [citation], and the declarations filed
in connection with such motion “must be directed to the issues raised by the
pleadings.â€â€™ [Citation.] [¶] The moving party ‘bears the burden of persuasion that
there is no triable issue of material fact and that he is entitled to judgment
as a matter of law.’ [Citations.] Defendants moving for summary judgment
. . . meet this burden by presenting evidence demonstrating that one
or more elements of the plaintiff’s cause of action cannot be established or
that there is a complete defense to the action.
[Citations.] Once the defendant
makes this showing, the burden shifts to the plaintiff to show that a triable
issue of material fact exists with regard to that cause of action or
defense. [Citations.] Material facts are those that relate to the
issues in the case as framed by the pleadings.
[Citation.] In ruling on the
motion, the court must consider the evidence and inferences reasonably drawn
from the evidence in the light most favorable to the party opposing the
motion. [Citation.] [¶] We review an order granting summary judgment de novo,
considering all the evidence set forth in the moving and opposition papers,
except that to which objections have been made and sustained. [Citations.]
In undertaking our independent review, we apply the same three-step
analysis as the trial court. First, we
identify the issues framed by the pleadings.
Next, we determine whether the moving party has established facts
justifying judgment in its favor.
Finally, if the moving party has carried its initial burden, we decide
whether the opposing party has demonstrated the existence of a triable issue of
material fact. [Citations.] ‘We need not defer to the trial court and are
not bound by the reasons for [its] summary judgment ruling; we review the
ruling of the trial court, not its rationale.’
[Citation.]†(
Proc., § 437c, subd. (c);
name="_ftnref2" title="">[2] Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar); Hamburg v. Wal-Mart
Stores. Inc. (2004) 116 Cal.App.4th 497, 502-503.)
II
THE PLEADINGS
The complaint alleges that
plaintiffs own property in Perris, that the property was affected by a project
involving Highway 74 in Perris, and that “[p]ursuant to the duly approved
plans, defendants and each of them, constructed the Project.†Despite this allegation, it is further
alleged that “[i]n constructing the Project, the defendants, and each of them,
failed to construct the Project in accordance with the approved plans†because
certain drainage improvements contained in the approved plans were not actually
constructed. As a result, the property
flooded during rainstorms. Finally,
plaintiffs allege they have not received any compensation as a result of such
flooding to their property.
RCTC’s answer was a general denial
with 13 affirmative defenses. The
affirmative defenses include res judicata “as Plaintiffs are seeking to recover
damages that Plaintiff [sic] could
have, and should have sought in the eminent domain
lawsuit . . . .†A
fifth affirmative defense asserts that the action is barred by the doctrine of
estoppel.
The State filed a separate answer.
It consisted of a general denial with 16 affirmative defenses. Interestingly enough, the State did not
assert a res judicata defense, but it did allege an
III
THE MOTION FOR SUMMARY JUDGMENT
On May 20, 2011, RCTC filed its
motion for summary judgment. The motion
asserted that RCTC was entitled to summary judgment because the plaintiffs
“seek compensation for damages to the same property that was the subject of a
prior eminent domain proceeding in which Plaintiffs sought severance
damages.†The motion argued that
defendants had constructed the project in accordance with “the manner in which
it was proposed†and that plaintiffs had received a jury award in the prior
action which included severance damages resulting from the project.
In an accompanying memorandum of points and authorities, RCTC argued
that plaintiffs were estopped “from being able to recover damages for inverse
condemnation when the damages were foreseeable at the time of the judgment in
condemnation.â€
RCTC also attacked the factual
basis for plaintiffs’ claim by arguing that it was based on a factual
inaccuracy.
title="">[4] RCTC argued that plaintiffs claimed that RCTC
omitted certain drainage facilities, designated as Drainage Facilities 66 and
67, from the approved 2003 project plans.
These facilities were shown on 2006 “as built†plans as being built, but
they never were constructed.
RCTC argued that the 2003 project plans did not include those drainage
plans and were never intended to include those drainage plans. Further, the designation of those plans as
“as built†plans was merely an error, the drainage facilities shown on those
plans were never a part of the project, and the drainage facilities were never
built. RCTC argued that, since the
project was completed in accordance with the original plans, plaintiffs had no
justifiable claim for inverse condemnation.
RCTC also argued that they had a complete defense to the action
because, after a severance damage award in an eminent domain action, plaintiffs
cannot prevail in a second action “for the past, present, or future damages
that may have occurred, or reasonably be expected to occur†by reason of the
use of the property for a public purpose.
(Citing Cox v. State of California
(1970) 3 Cal.App.3d 301, 309, italics omitted.)
Secondly, RCTC argued that severance damages were awarded in the
eminent domain action after consideration of various issues, including flooding
and drainage issues. RCTC cited various
code sections and People ex rel. Dept.
Pub. Wks. v. Silveira (1965) 236 Cal.App.2d 604 to support their claim that
a compensation award includes all damages, present and prospective, that will
arise from the construction of the project improvements as proposed in the
project plans. The corollary to this
argument is that the damages previously awarded in the eminent domain action
included damages for all reasonably foreseeable consequences of building the
project in accordance with the approved plans.
RCTC cited Ellena v. State of California
(1977) 69 Cal.App.3d 245 [Fourth Dist., Div. Two] in support of this
argument.
Numerous factual documents were filed with the motion, including
supporting declarations and plan pages showing planned drainage facilities,
designated D-25 and D-49. RCTC also
requested the court to take judicial notice of the pleadings and verdict in the
prior action.
A. Issues
Framed by the Pleadings
The primary issue framed by the
pleadings is whether defendants have a complete defense to the action. To establish a res judicata or collateral
estoppel defense, RCTC must show that plaintiffs were previously compensated
for severance damages to their property, that the Route 74 road improvements
were constructed in accordance with the approved plans, and that the subsequent
flood damage was foreseeable at the time of the prior eminent domain
award. The cases cited by RCTC support
these general propositions.
B.
Plaintiffs’ Claim?
RCTC contends that it has
established the res judicata and collateral estoppel defenses to the
plaintiffs’ complaint for additional severance damages. The contention is well supported by its
version of the facts, its declarations, and the applicable law. However, the primary issue in this case is
whether plaintiffs have shown that there are triable issues of fact. We therefore turn to that question.
C.
Triable Material Factual Issues?
The statements of undisputed
material facts filed by the parties in connection with the summary judgment
motion show the wide disagreement between the parties on the issue of whether
triable issues of material fact exist.
Defendants’ initial statement of
undisputed material facts lists 13 allegedly undisputed facts.
Plaintiffs’ statement disputes or objects to nine of those allegedly
undisputed facts. In addition,
plaintiffs included in their statement a 13-page statement of “additional facts
in dispute.†The statement primarily
references the declaration of Richard Doolittle, which plaintiffs submitted in
opposition to the summary judgment motion.
RCTC responded by filing a “replyâ€
separate statement of undisputed facts which lists RCTC’s alleged fact,
plaintiffs’ response, and RCTC’s objection to each response. In particular, RCTC objected to statements in
the declarations of Mr. Doolittle; plaintiff Ching Hsu; and plaintiffs’
attorney, Barry Ross. Although a
proposed order on the extensive objections was submitted to the trial court, it
apparently did not rule on them.
As they did in the trial court,
plaintiffs allege that there were at least eight factual issues which they
contend were raised by their declarations.
We focus on three of those issues.
1. Were
the subject drainage facilities part of the approved plans for the project?
Plaintiffs argue that there is a
triable issue of fact as to whether the drainage facilities were part of the
approved project plans. According to Mr.
Doolittle’s declaration, the approved sheets are D-25 and D-49 dated November
3, 2003. Secondly, there are revised
sheets D-25R and D-49R that are also dated November 3, 2003. Thirdly, there are drainage facility sheets
D-25 and D-49 that bear an “as built†stamp upon completion of the project in
2006.
Mr. Doolittle explains why there is confusion about which sheets were
part of the approved plans, primarily because of ambiguities surrounding the
revised plans, including lack of change orders and a general practice of not
dating plans and revisions on the same day.
Mr. Doolittle states “Exhibits ‘C’ and ‘F’ [sheets D-25R and D-49R] show
that additional drainage facilities were to be included as part of the Route 74
project in order to alleviate flooding and excessive rainwater flow on the
subject property.†He also confirms that
sheets D-25 and D-49 are the drainage improvements referred to as systems 66
and 67.
Plaintiffs argue that, if the drainage facilities listed on the
original or revised sheets were part of the original project, the failure to
complete the project by building those facilities would be grounds for the
additional severance damages sought by plaintiffs. In this regard, section 1263.450
provides: “Compensation for injury to
the remainder shall be based on the project as proposed.†Plaintiffs cite People v. Adamson (1953) 118 Cal.App.2d 714: “[I]t is the law of this state that damages
not necessarily included in the issues in a condemnation action may be
recovered in a subsequent action. [Citations.]†(Id.
at p. 722.)
Plaintiffs therefore find a factual issue as to whether the drainage
facility sheets, particularly the revised sheets D-25R and D-49R, show
facilities that were not constructed but were part of the project plans
existing at the time of the eminent domain trial.
undisputed that the 2003 Plans did not contain Drainage Facilities 66 &
67.†But, as shown above, the issue was
put into dispute by plaintiffs’ declarations.
RCTC argues that “Hsu has not established that the Project that was
built was different from the Project that was proposed.†But plaintiffs have established that there is
a difference of opinion in the declarations which creates a material factual
issue which cannot be decided on summary judgment.
Plaintiffs also cite the trial court’s statement of the general
rule: “If the proposed project is not
thereafter carried out as proposed, plaintiffs correctly contend that a
subsequent action may be maintained for damages to the retained parcel caused
by the changes in the project. (See
(1961) 190 Cal.App.2d 497, 502.)â€
issue of fact is a material issue.
2.
“Where
property has been taken by condemnation or acquired by deed, it must be assumed
that the owner has been compensated for all reasonably foreseeable damage to
his property resulting from the acquisition and the construction of the
proposed public improvements. [Citation.]†(Ellena
v. State of California, supra, 69 Cal.App.3d at p. 254.)
Plaintiffs argue that the flooding which occurred was not
foreseeable. They cite to both Mr. Hsu’s
and Mr. Doolittle’s declarations, in which it is said that it is a custom in
the industry and a requirement of the county code that new construction must
receive, accommodate, and discharge drainage water in substantially the same
manner as before the new construction.
As a result, they find that there was no reason anyone would believe
that the design of the project would result in increased flooding of the
subject property. Accordingly,
plaintiffs argue that the flood damage which subsequently occurred was not
foreseeable.
3.
the eminent domain trial?
Citing Mr. Hsu’s declaration, plaintiffs argue that there is a factual
issue as to whether the subject of possible flooding of the property by the new
Route 74 project arose during the eminent domain trial.
Mr. Hsu declares: “There was no
issue presented during the trial concerning flooding of the subject property by
the Route 74 project. This issue was not
raised during the trial. There was no
reason to raise the issue of flooding because there was no evidence presented
that the construction of the Route 74 project would cause the remainder portion
of the subject property to be flooded.
It was not reasonably foreseeable.â€
Mr. Hsu further alleges that the award of severance damages was based
on testimony as to the cost of fill dirt needed to raise the property to the
new grade level. Mr. Hsu, a former State
of California, Department of Transportation civil engineer, also stated that he
had no reason to believe that offsite improvements to Route 74 would result in
flooding of his property.
Citing the declarations of Mr. Hsu
and plaintiffs’ attorney, and the attachments to their declarations, plaintiffs
argue that the RCTC trial brief in the eminent domain action, the RCTC closing
argument, and a declaration of RCTC’s attorney show that the severance damages
in the eminent domain trial were the
result of Mr. Hsu’s claim for $150,000 for
loss of and replacement of fill dirt,
possible loss, such as flooding.
Plaintiffs’ attorney states that the declaration of defendants’ attorney
shows that “there was no issue of severance damages relating to offsite
flooding due to the construction of the Route 74 project.â€
Since there is a serious
disagreement regarding the evidence and issues at the eminent domain trial,
plaintiffs contend they have demonstrated another material factual issue.
IV
DISCUSSION
Plaintiffs rely on the general
principles of summary judgment as stated in Aguilar: “First, and
generally, from commencement to conclusion, the party
moving for summary judgment bears the burden of persuasion that there is no
triable issue of material fact and that he is entitled to judgment as a matter
of law. That is because of the general
principle that a party who seeks a court’s action in his favor bears the burden
of persuasion thereon. [Citation.]†(Aguilar,
supra, 25 Cal.4th at p. 850, fn. omitted.)
“Second, and generally, the
party moving for summary judgment bears an initial burden of production to make
a prima facie showing of the nonexistence of any triable issue of material
fact; if he carries his burden of production, he causes a shift, and the
opposing party is then subjected to a burden of production of his own to make a
prima facie showing of the existence of a triable issue of material fact.†(Aguilar,
supra, 25 Cal.4th at p. 850.)
Also, “[t]he court may not ‘grant[]’ the
defendants’ motion for summary judgment ‘based on inferences
. . . , if contradicted by other inferences or evidence, which
raise a triable issue as to any material fact.’
[Citation.] Neither, apparently,
may the court grant their motion based on any evidence from which such
inferences are drawn, if so contradicted.
That means that, if the court concludes that the plaintiff’s evidence or
inferences raise a triable issue of material fact, it must conclude its
consideration and deny the defendants’ motion.â€
(Aguilar, supra, 25 Cal.4th at
p. 856.)
More specifically, “[t]he trial
court may not weigh the evidence in the manner of a fact finder to determine
whose version is more likely true.
[Citation.] Nor may the trial
court grant summary judgment based on the court’s evaluation of
credibility. [Citation.] Nor may the trial court grant summary
judgment for a defendant based simply on its opinion that plaintiff’s claims
are ‘implausible,’ if a reasonable factfinder could find for plaintiff on the
evidence presented. [Citation.]†(Binder
v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.)
Put more succinctly, the trial court considering a summary judgment motion
is limited to issue finding. It cannot
properly go beyond issue finding to issue determination in deciding a motion
for summary judgment. (
174 Cal.App.2d 613, 616.)
A. The
Trial Court Determined That the Revised Drainage Facilities Were Not Part of
the Project
But the trial court here did not limit its inquiry to identifying
material factual issues. Instead, it
engaged in issue determination. For
example, the trial court stated that “[i]t is undisputed that the 2003 Plans
did not contain Drainage Facilities 66 & 67.†It therefore decided that “[p]laintiffs
cannot establish that [drainage facilities 66 and 67] were part of the Project
as proposed at the time of the underlying action.†But these conclusions could only have been
reached by disregarding plaintiffs’ argument and declarations. Those declarations establish the existence of
a material factual issue on this subject.
Mr. Doolittle’s declaration establishes the necessary factual
conflict. Mr. Doolittle explains that he
believes the revised plans showing the subject drainage facilities were part of
the project because they were dated in 2003, and for other reasons. While the trier of fact could accept the
explanation of Mr. Chavez to the effect that these plans were conceptual plans
prepared in 2005, and not part of the approved project, it is certainly not
required to do so. This is a material
factual issue.
The trial court also ruled that plaintiffs’ complaint was based solely
on the theory that the drainage facilities were not constructed and
“[p]laintiffs have asserted no claims that the Project, as proposed and
approved at the time of the Eminent Domain action, caused or aggravated the
drainage or flooding problems to the remainder.â€
However, the complaint is based on the theory that defendants failed
to construct the project in accordance with the proposed plans, and that the
proposed drainage facilities were a part of those plans. The complaint specifically alleges that “[a]s
a proximate and direct result of the failure by the defendants, and each of
them, to construct the Project as planned and by specifically omitting the
above described drainage improvements, the Subject Property during the past
three years has been subject to flooding during rain storms.â€
Section 1263.450 states:
“Compensation for injury
to the remainder shall be based on the project as proposed.†If the subject drainage facilities were
included in the project, but not built, plaintiffs can recover for the
resulting injuries to their property in an inverse condemnation action. Conversely, plaintiffs cannot recover if the
drainage facilities were not included in the project, unless the damages were
unforeseeable at the time of trial.
We find that the disputed question of whether the proposed drainage
facilities were part of the original approved plans given to plaintiffs and
submitted at the eminent domain trial is a material factual issue.
B. Foreseeability
is a Factual Issue
There is another material factual
issue established by conflicting declarations.
RCTC contends that the issue of flood damage arising from the project
was foreseeable, that it was raised and determined in the eminent domain
action, and that res judicata therefore bars this inverse condemnation action.
Mr. Doolittle and other declarants offer their respective opinions
that the flood damage that occurred was unforeseeable, that it was not raised
and determined in the eminent domain action, and that principles of
not bar this action.
Forseeability is a factual question:
“Estoppel is a question of fact, and the
determination of the trier of fact is binding on appeal unless the contrary
conclusion is the only one that can reasonably be drawn from the
evidence.†(Mehl v. People ex rel Dept. Pub. Wks. (1975) 13 Cal.3d 710,
715-716.) The proper procedure is shown
by our case of Ellena v. State of
California, supra, 69 Cal.App.3d 245.
In that case, trial was bifurcated in a flooding action so that the res
judicata defense, including foreseeability issues, would first be tried to the
court without a jury.
C.
in the Eminent Domain Trial are Factual Determinations
Questions
relating to the testimony and arguments at the prior trial cannot be resolved
by piecemeal references to the prior record.
Whether the issue of flood damage was considered and adjudicated in the
prior trial is therefore another material factual issue, despite the trial
court’s conclusion that “[d]rainage and flooding issues were explored in
connection with the Eminent Domain action.â€
Plaintiffs dispute this conclusion by arguing that the only issue
concerning flooding in the eminent domain action was related to flooding that
would occur if sufficient fill dirt was not used to properly grade the
property.
The trial court should not have decided the issue because there are
conflicting declarations on this subject.
The conflicting declarations merely raise another material factual
issue.
D. Conclusion
The trial court did not limit itself to recognizing factual
issues. Instead, it made factual
determinations on summary judgment. “The function of the trial court in ruling on a motion for
summary judgment is merely to determine whether such issues of fact exist, not
to decide the merits of the issues themselves.
[Citation.]†(
Cal.App.4th 1069, 1076-1077.)
In determining whether factual issues exist, the trial court should
have applied the general rule that the moving party’s papers are strictly
construed and the opposing party’s papers are liberally construed, with any
doubts being resolved in favor of the party opposing the motion. (Hamburg
v. Wal-Mart Stores, Inc., supra, 116 Cal.App.4th at p. 502.) This is so because of the strong public
policy favoring a trial on the merits. (
Specifically, the trial court was not free to disregard Mr.
Doolittle’s declaration, Mr. Hsu’s declaration, or Mr. Ross’s declaration: “[T]he sole declaration of a party opposing a
summary judgment motion which raises a triable issue of fact is sufficient to
deny that motion. . . .
Further, . . .
section 437c, subdivision (e) does not allow a
trial court to weigh the credibility of a declaration submitted by the party
opposing a summary judgment motion and then grant the motion, except where the
declaration is facially so incredible as a matter of law that the moving party
otherwise would be entitled to summary judgment.†(Estate
of Housley (1997) 56 Cal.App.4th 342, 359-360, fns. omitted.) Clearly, none of the declarations submitted
by plaintiffs were facially incredible, and the trial court erred in
disregarding them.
Since there were at least three factual issues presented by the
conflicting declarations and documentary evidence, we are compelled to reverse
the trial court’s judgment. On remand,
the trial court is directed to consider plaintiffs’ request for attorney fees
under section 1036.
V
DISPOSITION
The judgment is reversed. On
remand, the trial court is directed to consider appellants’ request for
attorney fees under section 1036.
Appellants shall recover their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RICHLI
J.
We concur:
McKINSTER
Acting
P. J.
KING
J.
name="_ftn1" title=""> [1] Defendant
State of California (the State) subsequently joined in the summary judgment
motion and in RCTC’s briefing.
statutory references are to the Code of Civil Procedure.
