APPEAL from the Superior Court of San Bernardino County. Janet M. Frangie, Judge. (Super.Ct.No. SCVSS131917)
The opinion of the court was delivered by: King J.
CERTIFIED FOR PUBLICATION
The present action is brought by plaintiff homeowners, Michael T. Gutierrez, Louise Gutierrez, Martin Gutierrez, Jr., Carmen V. Gutierrez, Anthony Bieggar, Rosa Bieggar, Frank Magdaleno, Carol Magdaleno, Ulric Presta, Nikki Presta, Chris E. Scott, and Michelle L. Scott, for inverse condemnation against defendant County of San Bernardino (the County). The alleged takings occurred during rainstorms in December 2003 and October 2004. On both occasions, plaintiffs' properties were inundated with water, dirt, and debris flowing from the mountainous area north of their properties.
Plaintiffs' properties are located along Greenwood Avenue in Devore, just north of Interstate 15. The area, while residential, is rural in nature. Greenwood Avenue runs generally in a north/south direction with Kenwood Avenue being the southern terminus, and mountains to the north. At the time of the floodings, approximately 80 percent of Greenwood Avenue was paved; the 20 percent closest to the mountains (known as the Greenwood alignment) was unimproved dirt, not suitable to drive on. The paved portion of Greenwood Avenue appears to be about 30-feet wide with no storm drains. Aerial photographs show a large canyon that drains to the base of the mountains just north of the unimproved Greenwood alignment. There is no flood control infrastructure at the base of the mountains.
In October 2003, the "Old Fire" denuded the mountains north of Devore. On December 25, 2003, it rained. The water flowed out of the mountains and down Greenwood Avenue, carrying with it significant amounts of debris and sediment. The flow caused substantial damage to plaintiffs' residences and property. The following month, the County placed K-rails along both sides of the paved portion of Greenwood Avenue for the purpose of protecting the residents from further damage. In October 2004, more rain hit the area, causing water, debris, and sediment to flow down Greenwood Avenue. Some of the water, debris, and sediment escaped the confines of the K-rails, causing damage to plaintiffs' properties.
"Article I, section 19 of the California Constitution permits private property to be 'taken or damaged for public use only when just compensation . . . has first been paid to, . . . the owner.' When there is incidental damage to private property caused by governmental action, but the governmental entity has not reimbursed the owner, a suit in 'inverse condemnation' may be brought to recover monetary damages for any 'special injury,' i.e., one not shared in common by the general public. . . . [Citation.]" (Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 362 (Locklin).)
Courts have referred to an important policy underpinning inverse condemnation damages as the "'loss distribution' premise." (See Holtz v. Superior Court (1970) 3 Cal.3d 296, 303-304, fn. omitted (Holtz).) As the Holtz court explained: The "general rule of compensability [does] not derive from statutory or common law tort doctrine, but instead [rests] on the construction . . . of our constitutional provision. . . . 'The decisive consideration is whether the owner of the damaged property if uncompensated would contribute more than his proper share to the public undertaking.' In other words, the underlying purpose of our constitutional provision in inverse--as well as ordinary--condemnation is 'to distribute throughout the community the loss inflicted upon the individual by the making of public improvements' [citation]: 'to socialize the burden . . . --to afford relief to the landowner in cases in which it is unfair to ask him to bear a burden that should be assumed by society' [citation]." (Id. at p. 303.)
An action for inverse condemnation lies when there is "'actual physical injury to real property proximately caused by [a public] improvement as deliberately designed and constructed . . . whether [said physical injury is] foreseeable or not.'" (Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 558 (Belair).) To be a proximate cause, the design, construction, or maintenance of the improvement must be a substantial cause of the damages. (Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 738-739.)
B. The Parties' Contentions and Procedural Background
Although plaintiffs asserted claims against the County for inverse condemnation, nuisance, dangerous and defective condition of public property, and trespass, only the cause of action for inverse condemnation was tried.*fn1 As to this theory, plaintiffs alleged that during both storms Greenwood Avenue "functioned as intended, designed, constructed and maintained" to channel large portions of storm flows down Greenwood Avenue, allowing the water and debris to escape onto plaintiffs' properties, causing substantial damage. At trial, plaintiffs' basic positions were: (1) Greenwood Avenue, together with the unpaved Greenwood alignment, was a County roadway and, as such, was a public improvement for purposes of inverse condemnation law; (2) the County's installation of the K-rails prior to the October 2004 flood constituted a further public improvement; (3) in both the December 2003 flood and the October 2004 flood, Greenwood Avenue functioned as a storm channel, proximately causing damage to plaintiffs' properties; and (4) under Albers v. County of Los Angeles (1965) 62 Cal.2d 250 (Albers), the County is strictly liable for such damage.
The County contended that, as to the December 2003 flood, any damage to plaintiffs' properties was not caused by a public improvement. As for the installation of the K-rails and the October 2004 flood, the County submitted that there was no showing that the K-rails caused any damage over and above the damage that would have occurred in the absence of the K-rails. Further, as to the 2004 flood, the County asserted that strict liability does not apply; instead, its actions are governed by a reasonableness standard under Locklin, and that it acted reasonably.
At trial, the issue of damages was bifurcated from that of whether a taking had occurred. Following the presentation of plaintiffs' case-in-chief on the takings issue, the trial court granted a non-suit as to the claim arising from the December 2003 flood. Following the presentation of the defense case, the court ruled in favor of the County on the remaining claim. In its tentative decision, which became the statement of decision, the court found that as to the December 2003 flood "there was no public improvement that constituted a 'taking.'" As to the October 2004 flood, the court found that the installation of the K-rails was a public improvement and that it caused damage to the plaintiffs' properties. The court concluded, however, that strict liability did not apply, and that in considering the various criteria set forth in Locklin, supra, 7 Cal.4th at pages 368 and 369, the County acted reasonably.
As presented by the pleadings, the evidence, and the arguments on appeal, the present matter deals with two alleged takings. The first being the initial flood in December 2003, which occurred approximately two months after the Old Fire, and the second being the flood of October 2004.
As to the 2003 incident, we conclude: (1) the Greenwood alignment was not a public improvement for purposes of inverse condemnation, and (2) to the extent the lower, paved Greenwood Avenue was a public improvement, plaintiffs failed ...