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Friends of the Point Pleasant Area v. County of Sacramento et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


September 16, 2011

FRIENDS OF THE POINT PLEASANT AREA, PLAINTIFF AND APPELLANT,
v.
COUNTY OF SACRAMENTO ET AL., DEFENDANTS AND RESPONDENTS.

(Super. Ct. No. 07AS00248)

The opinion of the court was delivered by: Raye , P. J.

Friends of the Point Pleasant Area v. County of Sacramento

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In 1868 the Legislature authorized the construction of the Sacramento Drainage Canal (Canal) by defendant County of Sacramento (County). The Canal accommodated runoff of water from storms, channeling it from the City of Sacramento (City) into the southern part of Sacramento County. In 1878 the Legislature enacted a statute that transferred control of the Canal from the County to the City. In 1904 floods severely damaged the Canal. After the City declined to repair the Canal, the County undertook restoration but abandoned the effort in 1906.

A portion of the Canal lies adjacent to the Point Pleasant area of Sacramento County. Plaintiff Friends of the Point Pleasant Area (Friends), a nonprofit unincorporated association, brought suit against the County and defendant Sacramento County Water Agency (Agency). Friends sought declaratory and injunctive relief, arguing the County and the Agency have a legal duty to operate, maintain, repair, and improve the Canal.

The County and the Agency moved for summary judgment, which the trial court granted. Friends appeals, arguing the undisputed facts reveal the County has a legal duty to maintain the Canal, and the action is not barred by the statute of limitations, laches, or a lack of justiciability. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND The Canal Construction

In 1868 the California Legislature authorized the County to construct a canal from R Street in Sacramento, running for approximately 20 miles south and west to Snodgrass Slough near what is now Elk Grove. (Stats. 1868, ch. 149, p. 127.) When the Canal was finished, it incorporated four floodgates to control backwater, including a floodgate to the south near the head of Snodgrass Slough.

Transfer of the Canal

In 1878 the Legislature enacted a statute transferring the Canal from the County to the City. (Stats. 1878, ch. 550, § 1, p. 852.) That same year, the City obtained right-of-way easements from landowners for the Canal. In 1878, 1893, 1897, and 1911 the City Charter included a declaration that the City is the legal representative and successor to the County in all matters pertaining to the Canal.

In 1889 the City and County formed a joint executive committee to oversee and maintain, repair, and operate the Canal. The City and County acted jointly to improve the Canal.

The 1904 Flood

This joint operation and maintenance of the Canal by the City and the County continued until 1904. In February 1904 flooding caused the breach of a levee on the east bank of the Sacramento River, known as the "Edwards Break." The flooding caused significant damage to the Canal. The destruction caused the Canal to become stagnant and polluted.

In June 1904 the Sacramento County Board of Supervisors (Board) stated the repairs in the area of the Edwards Break were a "case of emergency and [directed] that the Commissioner of the District be instructed to proceed with said work of repair, costs not to exceed $1000.00."

The following month, the Board determined the Edwards Break had caused the deposit of sand into the Canal, which "impeded the flow of the drainage water causing it to become stagnant and [polluted] and endangering the health of the people in that vicinity." The County ordered the cleanup of the Canal in conjunction with the City. Shortly afterward, the City investigated the break and declined to repair the Canal.

Subsequent Repairs

In October 1904 the County awarded a contract to a dredging company for the reconstruction of the Canal. The following year, after the funding allocated for reconstruction ran out, the County referred the matter to its judiciary committee for review. On May 8, 1906, the County canceled the contract with the dredging company. The reconstruction of the Canal was never completed.

In 1921 the County relocated and rebuilt as both a bridge and a flood control structure the southernmost floodgates on the Canal, the Lambert Road floodgates. The County repaired the Lambert Road floodgates in 1928. In 1929 the County removed the floodgates at Lambert Road but reinstalled them in 1938.

In 1995 and 1996 the County rebuilt the Lambert Road floodgates. Afterward, the top of the floodgates rose to an elevation of 11.84 feet above mean sea level. The elevation of the Point Pleasant area north and east of the Lambert Road floodgates is between 10 feet and 16 feet above mean sea level. In 1997 floodwaters rose over the Lambert Road floodgates.

Creation of the Agency

In 1952 the Legislature enacted a statute creating the Agency, whose jurisdiction includes the County and which was to be governed by the Board. (Sacramento County Water Agency Act [SCWA Act], Stats. 1952, 1st Ex. Sess., ch. 10, §§ 1, 3, pp. 316-317.)

Complaint

Friends filed a first amended complaint for declaratory and injunctive relief against both the County and the City, seeking a declaration that both entities were legally responsible to operate, repair, maintain, and improve the Canal. Friends also sought to enjoin the City and the County from using the Canal unless they acted responsibly. The complaint also named the Agency as a defendant. The complaint did not request monetary damages.

The County filed a demurrer to the first amended complaint. The trial court overruled the demurrer. The court found the complaint alleged that statutory enactments and contractual agreements imposed a duty on the County to maintain the Canal. In addition, the court found the complaint alleged the County failed to comply with its legally mandated duty, creating a justiciable controversy. Finally, the court determined the complaint was not barred by laches or the statute of limitations, since it alleged the County did not publicly abandon the Canal until April 2005.

On January 15, 2008, the County and the Agency filed a summary judgment motion, arguing no triable issue of fact supported either cause of action, and Friends's claims were barred by the statute of limitations and by laches, and were non-justiciable. Friends opposed the motion, filing a response to County's separate statement of facts that included 46 additional facts. The County and the Agency each filed a composite statement setting forth those facts disputed by Friends, as well as the 46 additional facts, identifying them as either undisputed or "[i]n excess of issue framed by the pleading."

The trial court granted the summary judgment motion. Following entry of judgment, Friends filed a timely notice of appeal.

DISCUSSION Standard of Review

A motion for summary judgment must be granted if the submitted papers show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 844.) The moving party, whether plaintiff or defendant, initially bears the burden of making "a prima facie showing of the nonexistence of any genuine issue of material fact." (Id. at p. 845.) "A prima facie showing is one that is sufficient to support the position of the party in question." (Id. at p. 851.) "Thus, if a plaintiff who would bear the burden of proof by a preponderance of evidence at trial moves for summary judgment, he must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not----otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact." (Ibid., italics omitted.) Once the moving party has met its burden, the burden shifts to the opposing party to show the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subds. (c), (p)(2).)

We review de novo the record and the determination of the trial court. First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond. Second, we determine whether the moving party's showing has established facts negating the opponent's claims and justifying a judgment in the moving party's favor. When a summary judgment motion prima facie justifies a judgment, the final step is to determine whether the opposition demonstrates the existence of a triable issue of fact. (Barclay v. Jesse M. Lange Distributor, Inc. (2005) 129 Cal.App.4th 281, 290.)

Legal Duty to Operate the Canal

Friends's first amended complaint alleged two causes of action. Friends sought declaratory relief in the form of a decree that the County and the Agency have a present legal duty to operate, maintain, repair, and improve the Canal. Friends also sought injunctive relief, requesting the court to enjoin all surface water discharges until the County and the Agency perform their duty.

Friends contends the acts and omissions of the County after 1878 are the dispositive facts in this case, not the legal effect of the Legislature's 1878 act of transferring the Canal from the County to the City. According to Friends, when a public entity accepts responsibility for an improvement, it becomes that entity's public improvement regardless of who built the structure to begin with.

Friends contends the 1878 statute did not divest the County of its legal duty to maintain the Canal; in finding to the contrary, the trial court "completely misinterpreted" the meaning and effect of the 1878 statute.

The trial court reviewed the legislative history surrounding the Canal and determined: "In 1878, the Legislature enacted a statute which transferred the [Canal] from the County to the City. [Citation.] The Board of Trustees of the City was declared to be the successors [sic] of the County in all matters pertaining to the [Canal] and to have sole control. [Citation.] Thereafter, deeds granting right of way easements for the City for the [Canal] were executed and recorded by landowners. [Citation.] [¶] . . . [¶] This Court may determine as a matter of law, that the effect of the 1878 statute, which has not been repealed, vested sole ownership of the [Canal] in the City, as the City was to 'succeed' the County, and have 'sole control' in matters pertaining to the [Canal]. The Court concludes that the [1878] statute vested sole ownership in the City."

In interpreting a statute, we ascertain the legislative intent so as to effectuate the purpose of the law. If the statutory language is unambiguous, we determine the legislative intent from the plain meaning of the language itself. The question of statutory construction presents a question of law, which we review de novo on appeal. (Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 140; Estate of Shinkle (2002) 97 Cal.App.4th 990, 1004.)

Friends's contention that the County is under a statutory duty to maintain and operate the Canal rests on a triad of statutes: the 1868 statute, the 1878 statute, and the 1952 SCWA Act. Our review of these legislative actions leads us to conclude the County has no such duty.

1868 Statute

The 1868 statute provides that the County is authorized to use the Sacramento Drainage Fund, created by the statute, "for the construction of a ditch or canal for drainage purposes, leading from the [City] to . . . Snodgrass Slough, . . . and for the construction of such levees, floodgates and bridges as may be found necessary in their judgment to render drainage effective and to guard against back-water in said district." (Stats. 1868, ch. 149, §§ 1, 3, p. 127.)

The 1868 statute authorized the County to construct the Canal. The statute did not mandate construction, operation, or repair of the Canal.

Friends disagrees, pointing to provisions in the 1868 statute that authorize the County to assess a tax for construction and state the tax "shall be collected." (Stats. 1868, ch. 149, § 1, p. 127.) Friends also references language in the statute that states: "The ditch or canal herein provided for shall, after its construction, be subject to the control and management of the Board of Supervisors of Sacramento County." (Id. at § 6, p. 128.) According to Friends, "shall" is mandatory, not a mere authorization.

Friends is correct in this sense: the 1868 statute does not require the County to construct the Canal, but the statute does require the County, should it decide on construction, to assess a tax, and vests control and management in the Board. The question becomes, what impact did the subsequent 1878 statute have on the question of the County's control and management?

1878 Statute

The 1878 statute provides the City, "by its Board of Trustees, . . . is hereby declared to be the legal representatives and successors of the Board . . . in all matters pertaining to the [Canal] . . . and of said [C]anal . . . the said Board of Trustees shall have the sole control." (Stats. 1878, ch. 550, § 1, p. 852.) The language of the statute manifests a clear intent that, "in all matters pertaining" to the Canal, the City is the legal representative with sole control over the Canal. Under the plain language of the 1878 statute, any authority over the Canal conferred by the 1868 statute to the County passed to the City as the County's "successor."

Friends disputes this reading of the 1878 statute, arguing that although management and control shifted to the City, nothing in the 1878 statute relieved the County of all responsibility for the Canal. In support, Friends cites language in section 4 of the 1878 statute that authorizes the City to compel cost-sharing contributions from the County for the City's work on the Canal.*fn1

However, the language of section 4 of the 1878 statute simply allows the City to recover from other entities the costs of Canal repair. Section 4 neither requires nor authorizes the County to undertake any maintenance on the Canal. A statute authorizing a county's contribution to a city for construction and repair of city streets does not require the county to undertake the work itself, but only requires that the county contribute aid for work done by the city. (Upton v. City of Antioch (1959) 171 Cal.App.2d 858, 860-861.)

Friends also cites section 5 of the 1878 statute, which states, "all other Acts and parts of Acts inconsistent herewith, are hereby repealed; but such repeal shall not impair any valid claim created under such repealed Act or part of Act." (Stats. 1878, ch. 550, § 5, p. 853.) Friends argues: "The mere fact that the management and control of the [Canal] was shifted from the County to the City in 1878 did nothing to impair any 'claim' created by virtue of the 1868 Statute and the original construction of the [Canal] by the County." Friends also contends: "By this broad language in Section 5, the Legislature clearly intended that the 1878 Statute would preserve any and all valid claims created under any and all repealed acts or parts of acts for the whole system of levees and canals identified in Section 1, including any act connected to the construction of the [Canal]. Therefore, even though the 1878 Statute shifted management and control of the [Canal] from the County to the City, it also made sure that nothing was done to impair any claims arising out of the original construction of the [Canal] by virtue of the 1868 Statute."

We are not persuaded by Friends's tortuous reading of the statute. The 1878 statute clearly and unambiguously transferred control and responsibility for the Canal from the County to the City. Section 5 of the 1878 statute states that valid claims under the repealed Act will not be impaired. Friends's interpretation of section 5 would render the 1878 transfer largely ineffective, since under their theory any claim concerning the Canal's construction would be the County's problem in perpetuity. A more reasonable interpretation of section 5 would allow any party who performed work on the Canal prior to the 1878 statute to recover payment for that work from the County, even after the transfer.

1952 SCWA Act

In 1952 the SCWA Act created the Agency. Friends asserts that the Agency, under the SCWA Act, has a present duty to operate the Canal. However, as the trial court pointed out, nowhere in the SCWA Act is the Canal mentioned. As both parties acknowledge, the SCWA Act authorizes the agency to perform flood control and other water-related services within the County. However, an authorization is not a mandate and does not create a duty to act. (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 498-499.)

Moreover, the SCWA Act provides that affirmative action is required for the implementation of any project or work, such as maintenance of the Canal. Water Code Appendix section 66-20 states, "[t]he agency shall determine which projects or works of improvement shall be carried out . . . ." As the trial court noted, Friends failed to establish that any affirmative action was taken by the Agency regarding the Canal.

Friends contends the SCWA Act is not merely a discretionary flood control statute that the Agency and the County can ignore "at their good pleasure." According to Friends, "The [Agency] may not have a mandatory duty to act in a certain way under the [SCWA] Act, but it cannot seriously deny that the [SCWA] Act mandates the protection of people and property from the risks of flooding. Ergo, the [Agency] has a duty to act reasonably, and cannot arbitrarily deny the absence of any duty for the people and property in the Point Pleasant Area." However, Friends is claiming the City and the Agency are under a legal duty to maintain the Canal. The statutes cited by Friends do not create such a duty.

Legal Duty to Maintain and Operate the Canal Based on Continuing Activities

Friends argues that following the enactment of the 1878 statute, the County continued to be involved in the construction and maintenance of the Canal. These activities support a finding of a legal duty to operate the Canal. Friends cites the County's cooperation with the City from 1904 through 1906 in partially restoring the canal; the reconstruction of the Lambert Road floodgates in the 1920's and in 1995; and the approval of upstream development that increases water discharges into the Morrison Creek Watershed where the Canal is located.

Cleanup of the Canal, 1904 Through 1906

The trial court considered the County's efforts to clean up the canal from 1904 through 1906 and determined: "California law does not provide for a transfer of property ownership to an innocent improver. The improvements belonged to [the] property owner." (Taliaferro v. Colasso (1956) 139 Cal.App.2d 903.)

We agree the County's efforts to clean up the Canal, which had become stagnant, did not trigger legal responsibility for the Canal on the County. A stagnant ditch or pond may be abated as a nuisance under the County's police powers. Such actions do not confer ownership on the County. (City of Turlock v. Bristow (1930) 103 Cal.App. 750, 755.)

Lambert Road Floodgates

Friends also argues the County's reconstruction, maintenance, and operation of the Lambert Road floodgates creates a legal duty on the part of the County for the Canal. However, by statute, a county does not become responsible for maintenance and repair of a right-of-way unless its board of supervisors accepts it on the county's behalf. (Sts. & Hy. Code, § 941.)

Upstream Development

Friends also contends that the upstream urban development approved by the County has resulted in a de facto flood retardation basin, which creates a legal duty on the part of the County to operate the Canal. Friends bases its argument that the County's continued participation in the planning, approval, construction, and operation of the Canal imposes a legal duty on the County to maintain the canal on a trio of cases: Arreola v. County of Monterey (2002) 99 Cal.App.4th 722 (Arreola), Yue v. City of Auburn (1992) 3 Cal.App.4th 751 (Yue), and Paterno v. State of California (2003) 113 Cal.App.4th 998 (Paterno).

In Arreola, individuals who suffered property damage brought suit against the state, a county, and other entities for damages in inverse condemnation and tort damages for flood damage caused when a river levee project failed during a heavy rainstorm and the floodwaters were obstructed by a state highway. The county had joined three other counties in executing an indemnity agreement under which each county accepted responsibility for the portion of the levee project located within its borders. (Arreola, supra, 99 Cal.App.4th at pp. 731-732.) The trial court found the defendants liable on the inverse condemnation claims and tort causes of action. On appeal, the county argued it was not liable because it did not have responsibility for the project. (Id. at p. 737.)

The appellate court provided the background for an inverse condemnation cause of action: "'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.' (Cal. Const., art. I, § 19 . . . .) When a public use results in damage to private property without having been preceded by just compensation, the property owner may proceed against the public entity to recover it. Such a cause of action is denominated 'inverse condemnation.' [Citation.]" (Arreola, supra, 99 Cal.App.4th at pp. 737-738.)

The court considered the county's contention that because it had no authority to maintain the project channel, it could not be liable for inverse condemnation: "A public entity is a proper defendant in an action for inverse condemnation if the entity substantially participated in the planning, approval, construction, or operation of a public project or improvement that proximately caused injury to private property. [Citation.] So long as the plaintiffs can show substantial participation, it is immaterial 'which sovereign holds title or has the responsibility for operation of the project.' [Citation.]." (Arreola, supra, 99 Cal.App.4th at p. 761.)

The court further concluded: "[A] public entity is a proper defendant in a claim for inverse condemnation if it has the power to control or direct the aspect of the public improvement that is alleged to have caused the injury. The basis for liability in such a case is that in the exercise of its governmental power the entity either failed to appreciate the probability that the project would result in some damage to private property, or that it took the calculated risk that damage would result." (Arreola, supra, 99 Cal.App.4th at pp. 762-763.) The court noted the county entered into the indemnity agreement with other counties, the plain language of which supported the conclusion that the county assumed responsibility for the project's operation and maintenance. (Id. at p. 763.)

Friends argues, "The liability of Respondents is not based on the issuance of permits, but on the dangerous condition that has been created by their actions, for which they are not immune." Friends also analogizes the 50-year-old indemnity agreement in Arreola to the 1868 statute, which granted the County the authority to construct the Canal.

However, there are two crucial distinctions between Arreola and the case before us. The plaintiffs in Arreola filed suit under inverse condemnation and a variety of torts for damages caused by flooding. The Arreola plaintiffs established the elements required for inverse condemnation, which the court found imposed liability on the county. Here, Friends seeks declaratory and injunctive relief; it does not allege inverse condemnation or any other tort theory of recovery. In addition, the county in Arreola entered into an indemnity agreement that the court found established its responsibility for the project. Here, the 1868 statute was superseded by the 1878 statute, which vested control and responsibility in the City.

In Yue, a restaurant owner filed suit against a city, alleging inverse condemnation based on several incidents of flooding. The plaintiff alleged that construction of a subdivision substantially increased storm runoff onto his property, and the city failed to require the developer to mitigate the runoff and failed to upgrade its drainage facilities. The trial court sustained the city's demurrer for failure to state a cause of action. We reversed. (Yue, supra, 3 Cal.App.4th at pp. 755-757.)

We noted the dispute centered on the "requirements for pleading an inverse condemnation cause of action based on water damage." (Yue, supra, 3 Cal.App.4th at p. 757.) "An inverse condemnation cause of action based on damage by surface water is governed by a rule of reasonableness that is peculiar to that genre. . . . [¶] However, this reasonableness doctrine simply presents a question of fact to be determined in each case upon a consideration of all the relevant circumstances." (Id. at pp. 760-761.)

We noted the plaintiff was contending the city approved the development of a subdivision, which increased the flow of surface waters, then built a culvert to divert the water even though the city knew, or should have known, the culvert would cause the plaintiff's land to be flooded. In effect, the plaintiff was alleging the city had a duty to prevent harm to the plaintiff's land caused by conditions the city approved or created. (Yue, supra, 3 Cal.App.4th at p. 763.)

According to Friends, under Yue, the County's actions in approving upstream improvements are subject to "a rule of reasonableness," which presents a question of fact and creates a legal duty on the part of the County. However, Yue considered "reasonableness" in conjunction with an alleged taking by inverse condemnation by the city. Friends alleges no such taking in the present case. Nor was there any question of the city's control over the developer's project in Yue; here, Friends has failed to establish the County's control over the maintenance of the Canal.

In Paterno, the plaintiffs filed suit against the state and other defendants for damages resulting from a levee collapse. The trial court held for the state; we reversed. (Paterno, supra, 113 Cal.App.4th at pp. 1003-1004.) The trial court held the defendants could not be liable under an inverse condemnation theory for the basic construction of the levee because those plans were crafted by Yuba County, which had been out of the case for over a decade. (Id. at p. 1029.)

However, we found that when a public entity accepts responsibility for an improvement, it becomes the entity's public improvement regardless of who built it. (Paterno, supra, 113 Cal.App.4th at p. 1029.) Since the state plans called for the state to exercise control and incorporate the levee into a unified public flood control system, and the state had benefited from the cost savings of accepting the levee "as is," the state accepted the levee and could be held liable for damages from its failure. (Ibid.)

Friends argues that under Paterno, the acts and omissions of the County after 1878 confer liability on the County because "[w]hen a public entity accepts responsibility for an improvement, it becomes that entity's public improvement regardless of who built it." (Paterno, supra, 113 Cal.App.4th at p. 1029.) However, Paterno considered the "acceptance doctrine" in the context of liability for damages under an inverse condemnation theory, not a request for declaratory or injunctive relief. In addition, the state plans called for the state to exercise control over the levee. Here, Friends is not requesting damages under inverse condemnation or a negligence cause of action. Friends is limited to the theories of relief pled in the trial court. Paterno's application of the acceptance doctrine is inapplicable to the case before us because the legal theories are completely different.

Friends rejects the contention that it should have alleged separate causes of action for inverse condemnation, public nuisance, or continuing trespass. According to Friends: "Respondents cannot ignore these tort-based theories simply because they are not alleged as separate causes of action in the [first amended complaint]. Pointing to the obvious, claims for inverse condemnation, public nuisance or continuing trespass cannot be alleged as separate causes of action unless the damage has occurred and injuries are sustained. [Citation.] By contrast, a cause of action for declaratory relief can be filed before the actual injury occurs. [Citations.] [¶] The first cause of action for declaratory relief encompasses legal theories based on statute, contract and tort because the factual allegations show that these are all part of the gravamen of the complaint."

However, we are not persuaded Friends could establish a cause of action for inverse condemnation against the County. A public entity is a proper defendant in an inverse condemnation action if the entity substantially participated in the planning, approval, construction, or operation of a public project that proximately caused injury to private property. If a plaintiff can show substantial participation, it is immaterial whether the public entity has the responsibility for the project. "'Approval and acceptance by the public entity may be implied by official acts of dominion or control of the property and by continued use of the improvement by that agency for many years.' [Citation.]" (Paterno, supra, 113 Cal.App.4th at p. 1029.)

In Arreola, the public entity entered into an indemnity agreement with neighboring counties that it would maintain and operate the project that caused the damage to private property. (Arreola, supra, 99 Cal.App.4th at p. 763.) In Paterno, the Sacramento River Flood Control Project called for the state to exercise control and to incorporate the levee into a unified public flood control system. We concluded the state accepted the levee as a state levee. (Paterno, supra, 113 Cal.App.4th at p. 1029.) Conversely, we determined the district was not liable in inverse condemnation, noting: "The District does routine maintenance for the State. [Citations.] It collects assessments from local landowners to control weeds and rodents, and to patrol for boils during high water. [Citation.] It has no authority to reconstruct the levee, even if it had the resources to do so." (Id. at p. 1034.)

Here, Friends cites the County's reconstruction of the Lambert Road floodgates and the approval of upstream development as the source of its legal duty to operate the Canal. However, neither activity rises to the level of substantial participation necessary to bring an action against the County for inverse condemnation. Neither activity reveals the County "accepted" the Canal as its responsibility. Nor did the County enter into any agreement with the City to maintain the Canal. Instead, like the District in Paterno, the County's involvement with the Canal was minimal, and limited to sporadic maintenance of the Lambert Road floodgates.

Injunctive Relief

Friends argues the trial court also erred in granting summary judgment as to its second cause of action requesting injunctive relief. According to Friends, its cause of action for injunctive relief seeks to prevent the County from using the Canal: "[T]he County cannot continue using the [Canal] if, by Judge Loncke's judicial fiat, the County has no duty to maintain, repair, improve or operate the [Canal]. The County cannot claim the right to use and direct the use of the [Canal] (e.g., telling the residents they cannot sandbag the Lambert Road [floodgates]) and concurrently deny liability for the effects of that use and control."

The trial court rejected this contention, noting: "Courts may not grant injunctions for the purpose of controlling the lawful or legislative actions of public officers, such as boards of supervisors, on matters properly pertaining to their jurisdiction. [Citations.]" We agree.

Friends requests a court order compelling the County to exercise its legislative powers over flood policy in a particular manner, to wit, operating, maintaining, repairing, and improving the Canal. However, "courts lack power to compel legislative bodies to perform legislative acts in a particular manner." (Friends of H Street v. City of Sacramento (1993) 20 Cal.App.4th 152, 159.)

Nonjusticiability

Finally, the County argues Friends's claims were barred as against public policy and were non-justiciable. The trial court agreed, finding: "It is well settled that although a court may issue a writ of mandate requiring legislative or executive action to conform to the law, it may not substitute its discretion for that of legislative or executive bodies in matters committed to the discretion of those branches. Although a court may order a local legislative body to perform a non-discretionary ministerial act, it may not control a local board's discretion."

Friends argues it is not seeking a court order compelling the County to operate the Canal in a particular manner, but merely asking the court whether the County has a duty to do so. However, our review of the evidence reveals the County did not have a legally mandated duty to maintain the Canal. Any such duty was abrogated by the 1878 statute, and none of the County's subsequent actions in relation to the Canal revived that duty.

DISPOSITION

The judgment is affirmed. The County shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

We concur: BLEASE , J. HULL , J.


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