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Biron v. City of Redding

California Court of Appeals, Third District, Shasta

April 30, 2014

PHILIP L. BIRON, as Trustee, etc., et al., Plaintiffs and Appellants,
v.
CITY OF REDDING, Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Shasta County No. 167508, Monica Marlow, Judge.

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COUNSEL

McNeill Law Offices and Walter P. McNeill for Plaintiffs and Appellants.

Damien M. Schiff and Anthony L. François for Pacific Legal Foundation as Amici Curiae on behalf of Plaintiffs and Appellants.

Richard A. Duvernay and Lynette M. Frediani, City Attorneys for Defendant and Respondent.

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OPINION

BLEASE, J.

Plaintiffs Biron Family Living Trust and Philip L. and Julie M. Biron as trustees own a 12-unit apartment building in downtown Redding, California, which they purchased in 2001. In February and March 2009, their property was damaged by flooding during two separate storm events. They filed this action against defendant City of Redding (City), alleging inverse condemnation and dangerous condition of public property.

The matter was bifurcated, and tried to the court without a jury as to liability. Following the plaintiffs’ presentation of evidence, City moved for judgment pursuant to Code of Civil Procedure section 631.8, subdivision (b), and the trial court granted the motion only as to the allegations of flooding occurring in March 2009. The trial proceeded as to the allegations of flooding occurring in February 2009.

The trial court ruled in favor of City on both causes of action. As to the inverse condemnation claim, it applied the rule of reasonableness to conclude that City’s decision to defer upgrades to City’s storm drainage system did not pose an unreasonable risk of harm to plaintiffs. As to the cause of action for dangerous condition of public property, the court concluded City’s decision to defer upgrades to the storm drainage system did not create a substantial risk of injury to members of the general public, and that even if the storm drain system had been a dangerous condition, City’s conduct was reasonable.

Plaintiffs argue the trial court erred in applying a rule of reasonableness to the inverse condemnation cause of action, and claim City should have been strictly liable for the damage. Plaintiffs make no focused argument with respect to the dangerous condition of public property claim, other than to reiterate that City knew the storm drainage facilities were deficient, and that the facilities were a dangerous condition of public property.

We shall affirm the judgment.

The trial court was correct in determining that City’s inverse condemnation liability was determined by a rule of reasonableness. Moreover, the trial court’s findings of fact lead to the conclusion that the storm drain facilities were not a substantial cause of plaintiffs’ damage. The trial court’s finding that City acted reasonably, reasonableness being a complete defense to the dangerous condition of public property claim, is supported by substantial evidence.

FACTUAL AND PROCEDURAL BACKGROUND

The trial court filed a lengthy and detailed statement of decision. Plaintiffs make no claim that the evidence was insufficient to support the trial court’s

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findings of fact. Therefore we derive most of the factual background in this opinion from the trial court’s findings of fact contained within the statement of decision.

The Biron property is a 12-unit apartment building located at 2487 Court Street in downtown Redding. It is not directly adjacent to a natural watercourse, but there is a natural watercourse approximately a block away. The owner of the property adjacent to plaintiffs’ installed a brick wall and floodgates because storm water had flooded that property in the past. The adjacent floodgates were in place when plaintiffs purchased their property in 2001.

City designed, constructed, and maintained a storm drainage system on and around plaintiffs’ property as a means of surface water and flood control.[1] The facilities are intended in part to protect property, including plaintiffs’ property. The Biron property is not within a mapped flood plain. There is a 36-inch storm drain inlet in the center of the parking lot on the Biron property. It falls outside City’s easement for the purpose of storm drain maintenance, thus is privately owned and controlled by plaintiffs, who have the responsibility for its maintenance.

In 1993 Montgomery Watson Engineers contracted with City to prepare a city-wide master storm drain study (Study), which evaluated the city’s storm drain facilities and made recommendations for repair and replacement. The purpose of the Study was to recommend upgrades and an implementation plan which would allow safe conveyance for floodflows from specific storm magnitudes (i.e., 10-year storms, 25-year storms, 100-year storms).

The Study contained a capital improvement plan, which set forth facilities needing improvement to convey future development design flows. The deficient facilities were ranked in order of priority, with the highest priority given to those facilities that were the most deficient, and the lowest priority given to those facilities that were the least severely undersized. Most of the downtown Redding facilities, where plaintiffs’ property is located, were assigned the lowest priority because “the majority of the problems in that area consist[ed] of nuisance flooding [less than 2 feet deep, with low velocities] in the streets.” Five facilities in the immediate vicinity of plaintiffs’ property were included in the capital improvement plan. The recommended level of protection for all but one of the five facilities was a 25-year storm design. A

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100-year storm design was recommended for the remaining facility. All five were assigned a priority of six, which was the lowest priority assigned in the capital improvement plan. None of the downtown facilities identified by the Study as deficient were ever improved. There was no evidence that the volume of runoff into the storm drain system increased as a result of development since the 1993 Study.[2]

City considered the storm drain utility to be grossly underfunded and lacking in available funds for improvement. The Study estimated the cost of recommended improvements to the facilities in the downtown area (where the Biron property is located) to be approximately $7.5 million. The cost of the recommended improvements for all other facilities identified in the Study throughout the city was approximately $14.5 million.

In 1992 or 1993 there was a flood on the Biron property and on the adjacent Cresswell property. Afterward, a brick wall and floodgates were installed on the adjacent Cresswell property. In the flood of 1992 or 1993, two to three inches of flooding occurred inside the apartment complex that was later purchased by the Birons. The Birons were not aware of the 1992 or 1993 flood.

Storms resulting in flooding occurred on February 23 and March 16, 2009. A tenant of the Birons’ apartment complex testified that the amount of water entering the Biron property and the direction of the water flow were the same in both instances. The parties’ experts agreed that the March 16, 2009, event was a greater than 100-year event. It was thus considered to be the result of an “ ‘act of God’ ” for which City bore no responsibility.

Two nearby rain gauges recorded precipitation from the storms. One recorded a 16-year storm event on February 23, 2009. One recorded a 100-year storm event on February 23, 2009. The trial court found that the February 23, 2009, storm event was more consistent with a 100-year frequency storm.

The flooding on the Biron property was not caused by City’s poor maintenance of the system. The trial court found the flooding was caused by a storm event that was akin to a 100-year event, which overwhelmed both natural ...


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