Filed 4/19/17 Glaser v. City of San Juan Capistrano CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



GUY H. GLASER et al.,

Plaintiffs and Appellants,

v.

CITY OF SAN JUAN CAPISTRANO,

Defendant and Respondent.
D070921



(Super. Ct. No. 30-2011-004560117)


APPEAL from a judgment of the Superior Court of Orange County, Gail A. Andler and Kim Garlin Dunning, Judges. Affirmed.

Blum Collins, Craig M. Collins and Gary Ho for Plaintiffs and Appellants.
Kutak Rock, Edwin J. Richards and Antoinette P. Hewitt for Defendant and Respondent.
I
INTRODUCTION
Guy H. Glaser and Letty E. Bassler-Glaser appeal a judgment in favor of the City of San Juan Capistrano (City) on their complaint for inverse condemnation and related causes of action for damage to their home after storm water overflowed from a nearby drainage ditch and intruded into it. The Glasers contend we must reverse the judgment because the court erred in determining the City had no liability to them as neither the ditch nor the City's easement over the lot containing the ditch was a public improvement, and neither was a substantial cause of the damage to their home. For the reasons explained below, we are unpersuaded by this contention. We, therefore, affirm the judgment.
II
BACKGROUND
A
The Glasers own a home in a small, gated subdivision. A concrete v-shaped drainage ditch (v-ditch), identified on the subdivision map as Lot E, runs along the subdivision's western perimeter. The southern end of the v-ditch is across the street from the Glasers' home and adjacent to an ascending slope. A portion of the slope is within the subdivision's boundary and is identified on the subdivision map as Lot A. The southern end of the v-ditch connects to the inlet of an underground concrete pipe, which runs alongside the Glasers' home and drains into a creek behind it.
During an unusually high-volume rainstorm in December 2010, the inlet became clogged with mud and debris from soil failures, or sloughs, on a portion of the slope above Lot A. The v-ditch subsequently overflowed, sending mud, water, and debris across the road and into the Glasers' home.
B
The Glasers sued the City, alleging causes of action for inverse condemnation, nuisance, and dangerous condition of public property. The court bifurcated the trial of the liability phase of the inverse condemnation cause of action from the remainder of the case and conducted a multi-day bench trial, which included a site visit.
As relevant to this appeal and viewed in the light most favorable to the judgment (see Ullery v. County of Contra Costa (1988) 202 Cal.App.3d 562, 565-566 (Ullery)), the evidence presented at trial showed the subdivision developer dedicated and the City accepted an easement over Lot E for storm drain and drainage maintenance purposes (easement). The subdivision developer also dedicated the v-ditch to the City; however, the City never formally accepted the dedication. Although the City's geographical information system identified the City as the v-ditch's owner, the City engineer who helped create the storm drain portion of the computer system explained he used the City as the default entry for the ownership field in the computer system, intending to later change the default entry whenever the City encountered a non-City-owned storm drain system.
The v-ditch does not connect to the City's storm drain system and the City does not regularly maintain the v-ditch. The City also does not own or maintain the creek into which the v-ditch's contents flow. However, the City has twice performed emergency clean-out work on the v-ditch: once after the flooding of the Glasers' home and once about five years earlier after another storm event.
While the developer was constructing the subdivision, the developer maintained the v-ditch. After the subdivision's homeowners' association (association) was formed, the association maintained the v-ditch. Consistent with the association's actions, the subdivision's covenants, conditions, and restrictions identify Lot E as part of the subdivision's common area and indicate the association is responsible for maintaining and repairing the common area, including the subdivision's "private storm drain system."
C
Following the trial, the court issued a statement of decision determining the City had no liability for inverse condemnation. The court based its decision in part on findings: (1) the easement was not in and of itself a public improvement; (2) the v-ditch was not a public improvement because the City had not expressly or impliedly accepted it; (3) the design of the v-ditch was not a substantial contributing cause of the Glasers' damage; and (4) the design and construction of Lot E was not a substantial contributing cause of the Glasers' damage. Instead, the court found the cause of the Glasers' damage was the blockage of the inlet from mud and debris flowing from saturated uphill property owned by third parties.
After the court found against the Glasers on their inverse condemnation claim, the City moved for summary adjudication of their remaining claims on the ground the court's factual findings on their inverse condemnation claim were binding and dispositive of their remaining claims. The court granted the motion and entered judgment in the City's favor.
III
DISCUSSION
A
"In reviewing a judgment based upon a statement of decision following a bench trial, we review questions of law de novo. [Citation.] We apply a substantial evidence standard of review to the trial court's findings of fact. [Citation.] Under this deferential standard of review, findings of fact are liberally construed to support the judgment and we consider the evidence in the light most favorable to the prevailing party, drawing all reasonable inferences in support of the findings." (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981.)
Unmindful of the substantial evidence standard of review, the Glasers' arguments rest almost exclusively on their own evidence, particularly the testimony of their hydrology expert, whom the court expressly found to be less credible than the City's hydrology expert. By largely ignoring the evidence unfavorable to their position, the Glasers have forfeited any contention there is insufficient evidence to support the court's factual findings. (Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1165-1166; Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 737-738.) We, therefore, do not belabor any of the Glasers' points based on facts contrary to those found by the trial court.
B
"The authority for prosecution of an inverse condemnation proceeding derives from article I, section 19 of the California Constitution … which requires that just compensation be paid when private property is 'taken or damaged for public use.' There is inverse condemnation liability for any physical injury to real property proximately caused by a public improvement as deliberately designed and constructed, whether or not the injury was foreseeable and in the absence of fault by the public entity." (Ullery, supra, 202 Cal.App.3d at p. 568, citing Holtz v. Superior Court (1970) 3 Cal.3d 296, 303-304; Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 263-264.) "To be a proximate cause, the design, construction, or maintenance of the improvement must be a substantial cause of the damages." (Gutierrez v. County of San Bernardino (2011) 198 Cal.App.4th 831, 837 (Gutierrez).)
C
The Glasers contend the court erred by determining the easement was not a public improvement for inverse condemnation purposes. We disagree.
For the easement to be a public improvement for inverse condemnation purposes, the City must have deliberately undertaken a particular plan or course of action for maintaining it. (Gutierrez, supra, 198 Cal.App.4th at p. 843.) While there is evidence the City accepted the easement and provided emergency services on Lot E after two aberrational rainstorms, there is no evidence the City regularly repaired, maintained, or otherwise exercised dominion and control over the easement. (Ibid. & at p. 842, fn. 5.) Accordingly, the court did not err in determining the easement was not a public improvement for inverse condemnation purposes.
Moreover, even if the easement were a public improvement, the court found as a factual matter the easement was not a substantial cause of the Glasers' damages. Rather, the court found the cause of the Glasers' damages was mud and debris from soil failures on the slope above Lots A and E, which clogged the v-ditch. This finding was based on the testimony of the City's hydrology expert, which provides sufficient evidence to support it. (Thompson v. Asimos, supra, 6 Cal.App.5th at p. 981 [the testimony of a single witness may constitute substantial evidence to support a factual finding].) Therefore, the City has no liability for inverse condemnation based on the easement.
D
The Glasers also contend the court erred in finding the v-ditch was not a public improvement for inverse condemnation purposes. Again, we disagree.
"A storm drainage system constructed and maintained by a public entity is a public improvement. [Citation.] A public entity is not insulated from liability by the fact that a part of the system may have been constructed by a private property owner. Where there has been at least implied approval or acceptance of the work by a public entity, there is inverse condemnation liability for the taking or damage proximately caused by the drainage system. [Citations.] Official acts of dominion and control constituting acceptance of the private drainage system can be shown if the public entity does maintenance and repair work. [Citations.] Use of land for a public purpose over time may constitute implied acceptance of the offer of dedication. [Citation.] On the other hand, where 'there is no acceptance of … the drainage system …, there is no public improvement, public work or public use and therefore there can be no public liability for inverse condemnation.' " (Ullery, supra, 202 Cal.App.3d at pp. 568-569; Yox v. City of Whittier (1986) 182 Cal.App.3d 347, 354.)
Here, the evidence showed the v-ditch was not connected to the City's storm drain system and the City never formally accepted the subdivision developer's dedication of it. Although the City twice provided emergency clean-out services after two aberrational storms, the City did not regularly maintain or otherwise exercise dominion and control over it. Rather, the association, consistent with the subdivision's covenants, conditions and restrictions, repaired and maintained it as part of the subdivision's common area. Consequently, the court did not err in determining the v-ditch was not a public improvement for inverse condemnation purposes.
Further, even if the v-ditch were a public improvement, the court, as previously indicated, found as a factual matter the v-ditch did not cause Glasers' damages. Soil failures on the slope above Lots A and E caused their damages. This finding is supported by substantial evidence. The City, therefore, has no liability for inverse condemnation based on the v-ditch.
E
Lastly, in a two-sentence argument, the Glasers contend the court erred in granting summary adjudication to the City on their nuisance and dangerous condition of public property causes of action because "[t]he discharge by a public entity of drainage water onto private land is a nuisance and creates a dangerous condition of public property. [Citation.]" This argument assumes the City discharged the water that inundated the Glasers' home, which assumes the easement and v-ditch are public improvements. For the reasons explained above, these assumptions are incorrect. Consequently, the Glasers have not established the court erred in summarily adjudicating their nuisance and dangerous condition of public property causes of action against them.
IV
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.



MCCONNELL, P. J.

WE CONCUR:




BENKE, J.




NARES, J.