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Contra Costa County v. Pinole Point Properties, LLC

California Court of Appeals, First District, Second Division

April 3, 2015

CONTRA COSTA COUNTY, Cross-complainant, Cross-defendant and Respondent,
Pinole Point Properties, LLC, Cross-defendant, Cross-complainant and Appellant BNSF Railway Company, Cross-defendant and Respondent.

Contra Costa County Superior Court Nos. MSC0901011, MSC1000185 Hon. Steven K. Austin Judge

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Plageman, Lund & Cannon, Richard W. Lund and Shana Margolis Goldberg for Cross-defendant, Cross-complainant and Appellant.

Gordon, Watrous, Ryan, Langley, Bruno & Paltenghi, Dylan T. Radke, Hill, Farrer & Burrill, Paul M. Porter, McNamara, Ney, Beatty, Slattery, Borges & Ambacher and Timothy J. Ryan for Cross-complainant, Cross-defendant and Respondent and for Cross-defendant and Respondent.



Contra Costa County (the County) owns and operates a drainage system on Lettia Road in the Montalvin Manor residential subdivision (Montalvin Manor). This drainage system connects to a drainage channel on adjacent property owned by Pinole Point Properties, LLC (Pinole Point). When the drainage channel is functioning, its water flows into the San Pablo Bay (the Bay).

After experiencing storm-related flooding, homeowners on Lettia Road sued the County; the County cross-complained against Pinole Point for, among other things, nuisance and negligence. The County alleged that Pinole Point was responsible for the flooding by permitting the drainage channel to

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be blocked with debris and vegetation. Pinole Point filed a cross-complaint against the County, [1] which included claims for negligence and inverse condemnation.

The County and Pinole Point settled with the homeowners and their claims against each other proceeded to a bench trial. The court, applying the reasonableness test set forth in Keys v. Romley (1966) 64 Cal.2d 396 [50 Cal.Rptr. 273, 412 P.2d 529] (toys) and Locklin v. City of Lafayette (1994) 7 Cal.4th 327 [27 Cal.Rptr.2d 613, 867 P.2d 724] (Locklin), found in favor of the County and against Pinole Point. The court determined that the drainage channel is a natural watercourse, that the County’s conduct with respect to its property had been reasonable, and that Pinole Point’s failure to maintain the drainage channel had been “entirely unreasonable” in light of its actual or constructive knowledge when purchasing the property of the existence of the drainage channel and the need to keep it clear of debris to prevent flooding to the adjacent homeowners. The court awarded damages to the County and ordered Pinole Point to clear and maintain the obstructed drainage channel.

On appeal, Pinole Point contends that it has no legal duty as the downstream property owner to maintain the drainage channel, especially since it did not create any diversion or obstruction to the flow of the water. Even if it had a duty, the County’s conduct, according to Pinole Point, was unreasonable and therefore the County should be liable for all costs related to maintaining the drainage system.

As we explain, the trial court properly applied the reasonableness test and substantial evidence supported its findings. Accordingly, we affirm.


The Homeowners’ Lawsuit and the Parties’ Pleadings

The superior court consolidated two lawsuits by homeowners seeking damages against the County for storm-related flooding of their homes on Lettia Road in Montalvin Manor that occurred on February 17, 2009. (Cardenas v. Contra Costa County (Super. Ct. Contra Costa County, 2013, No. MSC09-01011); Puckett v. Contra Costa County, (Super. Ct. Contra Costa County, 2013, No. MSC10-00185).) The County answered and filed cross-complaints against Pinole Point, BNSF, and Union Pacific Railroad Company (Union Pacific) for indemnity and contribution, negligence, nuisance and trespass, and injunctive relief. Subsequently, the County dismissed Union

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Pacific and BNSF from its cross-complaint. The County sought monetary damages from Pinole Point for its costs related to pumping storm waters on Lettia Road during the period of March 1, 2009, to June 1, 2011. It also sought injunctive relief requiring Pinole Point to clear and maintain the obstructed drainage channel on its downstream property and to perform temporary pumping until the channel-clearing project could be completed.

Pinole Point answered the County’s cross-complaint and filed its own cross-complaint against the County, BNSF, and Union Pacific for indemnity, contribution, inverse condemnation, declaratory relief, and tortious diversion of surface waters. Subsequently, Union Pacific obtained a summary judgment against Pinole Point’s cross-complaint.

The homeowners settled their lawsuit for $90, 000. Under the settlement terms, the County and Pinole Point agreed to contribute $45, 000; both agreed each could seek recovery from the other at trial. On the first day of trial, the County stipulated that sediment it had not removed from the storm drain proximately caused the flooding of the homes on February 17, 2009. The County conceded liability for the $45, 000 Pinole Point paid to the homeowners. The matter proceeded to trial on the two cross-complaints.

The Trial, Judgment, and Notice of Appeal

The property that is the subject of this litigation is a 26-acre undeveloped parcel, including wetlands, in Richmond, California. (A copy of the map is attached as appendix A, post, at p. 943.) In 1979, Pinole Point acquired the low-lying parcel near the Bay from Bethlehem Steel Company (Bethlehem Steel) as part of a 500-acre block of land. Pinole Point sold off some of the larger parcels; it still owns a portion of this land, which the parties refer to as the Remainder Parcel.

Prior to the 1890s, the Remainder Parcel existed in a natural state. The property received tidal flow intrusions from the Bay to the north. It also received storm water runoff from upland areas to the south.

In the 1890s, BNSF and Union Pacific, or their predecessors, constructed high berms and railroad tracks across the property (UP berm). The UP berm extends from west to east and lies adjacent to the northern limit of the Remainder parcel. Before construction of the UP berm, storm waters reaching the Remainder Parcel flowed freely out to the Bay. The UP berm contains a single outlet that measures approximately 1.5 feet by 2.5 feet (UP culvert). The UP culvert extends through the UP berm near the eastern side of the Remainder Parcel.

Additionally, in the late 1800s, immediately upslope and adjacent to the southern limit of the Remainder Parcel, a second elevated earthen railroad

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berm (BNSF berm) was built. The BNSF berm extended from west to east across the full width of the southern limit of the Remainder Parcel, lying between the Remainder Parcel and what would later become Montalvin Manor. At least one 24-inch cast iron drainage pipe was installed through the BNSF berm upstream (the 24-inch Pipe) on the eastern edge of the Remainder Parcel.

The UP and BNSF berms prevented the natural flow of drainage waters into the Bay. The BNSF berm trapped water to the south of the BNSF tracks on what would later become the Lettia Road area in Montalvin Manor. The UP berm trapped water between the tracks on the Remainder Parcel.

Aerial photographs of the Remainder Parcel taken in the late 1940s, prior to the construction of Montalvin Manor, revealed that the drainage pipes constructed by the railroads were not working very well. The 1947 aerial photograph confirmed that water was being trapped in the lowlands south of the BNSF tracks in the area that would become Lettia Road. Additionally, the Remainder Parcel between the two tracks had become a water detention basin that held water drained through the BNSF berm until it eventually drained into the Bay through the drainage pipe in the UP berm. The aerial photographs also indicated that there were no defined drainage channels at the easterly side of the Remainder Parcel between the 24-inch Pipe (upstream) and the UP culvert (downstream).

In the 1950s, Montalvin Manor was constructed. Pinole Point’s civil engineering expert, Michael Milani, testified that the housing development built in the early 1950s significantly increased the volume of water, flow rate of water, and velocity of water discharged onto the Remainder Parcel.

The trial court found that the original drainage scheme of Montalvin Manor tied into the preexisting 24-inch Pipe installed on the eastern edge of the low portion of the Remainder Parcel. The court also found that by 1957 a drainage channel (the Drainage Channel) was constructed on the Remainder Parcel and it directly conveyed water from the 24-inch Pipe in the BNSF berm to the culvert in the UP berm. In the 1960s and 1970s, the Drainage Channel was 14 to 16 feet wide and six to eight feet deep. Storm waters from Montalvin Manor also discharged through a 36-inch concrete storm drain (36-inch Pipe) located west of the 24-inch Pipe. Water from the 36-inch Pipe did not empty into the Drainage Channel, but collected in a large marshy area to the west of the 36-inch Pipe.

The Drainage Channel was kept clear of vegetation and debris from the time of its construction until Pinole Point took title to the Remainder Parcel. Although no conclusive evidence showed who maintained the Drainage

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Channel, there was evidence that Bethlehem Steel, the prior owner of the Remainder Parcel, had cleaned out the Drainage Channel on at least one occasion in 1970. The trial court concluded that Bethlehem Steel had probably kept the Drainage Channel clear while it owned the Remainder Parcel.

At the time Pinole Point purchased the large piece of property from Bethlehem Steel in 1979, the Drainage Channel running across the Remainder Parcel was functional, open, and obvious. The trial court found that Pinole Point knew or should have known about the Drainage Channel and the intermittent maintenance it required to remain functional.

The County owned or controlled Lettia Road. In 1981, it approved a project to address flooding along Lettia Road in Montalvin Manor. The County installed a 54-inch diameter storm drain pipe (54-inch Pipe) on Lettia Road that extended northward a distance of approximately 190 feet from Lettia Road through the BNSF berm near the 24-inch Pipe to replace the existing 24-inch Pipe and 36-inch Pipe. The 54-inch Pipe was located at approximately the same location as the 24-inch Pipe, and discharged water into the Drainage Chanel. This project was approved over Pinole Point’s objections, and construction was completed in 1982. The trial court determined that this construction did not increase the amount of water discharged onto the Remainder Parcel from Montalvin Manor but simply redirected some of the water already discharging onto the Remainder parcel from the 36-inch Pipe. The trial court found that the 54-inch Pipe might have increased the rate of silt deposits in the Drainage Channel due to the increase in runoff flow at that location, but the same amount of silt would have been deposited through the drainage facilities that were in place prior to 1982.

Pinole Point did not maintain the Drainage Channel and over time it became obstructed with large trees, bushes, debris, and sediment. In 1991, Gregory Marshal Connaughton, a supervising civil engineer with the County, sent a letter notifying Pinole Point that the Drainage Channel was “obstructed with silt and vegetation” and “as a result, water ponds in Montalvin Manor.” He requested that it re-excavate the channel and warned that, without the appropriate action, Lettia Road would flood. He also wrote to Pinole Point on November 5, 2002, warning about the accumulation of sediment and vegetation. He again warned Pinole Point about the problems on January 21, 2003, January 30, 2003, and October 24, 2007.

Following the flooding on February 17, 2009, the County sent its maintenance crews to Lettia Road to prevent flooding whenever it anticipated a significant rainstorm. During rainstorms, the crews operated portable pumps to pump water ...

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