Opinion
A165600
09-27-2023
ROBERT INSALACO, et al., Plaintiffs and Appellants, v. WEST COUNTY WASTEWATER DISTRICT, Defendant and Respondent.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. MSC17-00725
MILLER, J.
This is the third appeal brought by plaintiffs Robert Insalaco and Leslie Lomax (the Insalacos) regarding extensive property damage to their residence in a 2017 landslide. Over the years, the Insalacos have sought to hold various defendants liable for the landslide based on different theories. In this round of litigation, the Insalacos allege that a sewer pipe owned and maintained by defendant West County Wastewater District (the Water District) leaked and was a cause of the landslide. The Water District successfully moved for summary judgment on the ground that the Insalacos failed to establish that the broken sewer pipe was a substantial factor in causing the landslide. The Insalacos argue reversal is required as a matter of fairness and public policy because the Water District allegedly excavated and destroyed the sewer pipe without providing for an inspection prior to its destruction. The Insalacos also claim that aside from the fairness issue, they raised a triable issue of material fact regarding the role of the Water District's sewer pipeline in causing the landslide. We discern no error requiring reversal and will affirm the judgment.
In Insalaco v. Hope Lutheran Church of West Contra Costa County (2020) 49 Cal.App.5th 506, 509 (Insalaco I), we reversed summary judgment in favor of defendant Hope Lutheran Church of West Contra Costa County (church), holding the trial court erred in denying the Insalacos' timely motion for a continuance (Code Civ. Proc., § 437c, subd. (h)). In Insalaco v. Padilla (June 27, 2022, A160164) [nonpub. opn.] 2022 WL 2302058, we reversed summary judgment in favor of defendant Juan Padilla based on concededly material facts identified in Padilla's motion that the Insalacos disputed.
BACKGROUND
A. The Parties and the Litigation
The Insalacos own residential property at 71 Avenida Martinez in El Sobrante that was severely damaged in a February 2017 landslide. The Water District is a public entity that owns, operates and maintains the public sewer main under Avenida Martinez in El Sobrante. Following the February 2017 landslide, the Insalacos sued a number of neighboring landowners and two public entities, including the Water District. The causes of action alleged against the Water District were for inverse condemnation, nuisance, injunctive relief, trespass, diversion of surface waters, dangerous condition of public property, and declaratory relief.
In December 2021, the Water District moved for summary judgment against the Insalacos on the grounds that its sewer main was not a substantial factor in causing the February 2017 landslide. We set forth the relevant undisputed facts before summarizing the briefing on the motion.
The Water District also argued that the Insalacos' diversion of water claim (sixth cause of action in the operative Fifth Amended Complaint) was improper because the Water District is a public entity immune from liability in the absence of a statute. Finding that no statutory basis for liability had been alleged, the trial court adjudicated this cause of action in the Water District's favor. The Insalacos do not challenge this ruling on appeal; thus, any claims regarding the sixth cause of action have been forfeited on appeal. (Behr v. Redmond (2011) 193 Cal.App.4th 517, 537 [party's failure to brief an issue "constitutes a waiver or abandonment of the issue on appeal"].)
B. The Sewer Main
1. History
A sewer main was originally constructed as a 6-inch vitrified clay pipe under Avenida Martinez in or about 1963. In 1998, the Water District hired Harza Consulting Engineers and Scientists (Harza) to assess the limits of a landslide that had developed on the north side of Avenida Martinez and to evaluate the most suitable place to relocate a portion of the main to minimize the risk of future damage to the sewer main because of landslide movement. Harza recommended that the Water District relocate a portion of its sewer main southward and replace the existing 6-inch pipe with an 8-inch pipe. The plan did not call for the abandonment or replacement of the segment of the sewer main in front of 63 or 71 Avenida Martinez-the location of the February 2017 landslide. The Water District adopted the recommendations and the project, referred to as Project 728, was completed in March 1999.
2. June 2017 Inspection
On June 6, 2017 (a few months after the February 2017 landslide at issue here), the Water District performed a video inspection of the segment of its main between the upstream manhole (No. 16-6-16) in front of 79 and 80 Avenida Martinez and the downstream manhole (No. 16-6-15) in front of 55 Avenida Martinez, which totals 200 linear feet. This segment is upstream of (and to the east of) the segment that was abandoned and replaced pursuant to Project 728; the segment of main between manhole Nos. 16-6-16 and 16-615 was not part of Project 728.
During the June 6, 2017 inspection, the Water District observed an offset at a joint approximately 93 feet upstream of manhole No. 16-6-15 (and thus approximately 107 feet downstream of manhole No. 16-6-16). This offset at the joint is the focus of the Insalacos' claim against the Water District.
3. August 2017 Repairs
On August 4, 2017, plumbing contractor Z&Z Plumbing (Z&Z) submitted a proposal to the Water District to repair the offset in the sewer main. The proposed repair consisted of replacing the 200 linear feet of 6-inch vitrified clay pipe between manholes Nos. 16-6-16 and 16-6-15 with 8-inch, high density polyethylene via pipe bursting, with one exception: Z&Z proposed excavating 14 feet down to the section of the main where the offset was found to repair/replace that section.
Pipe bursting is a trenchless method of replacing buried pipelines without the need for construction of a traditional trench.
On October 24, 2017, the Water District produced photographs and videos of the August 2017 repair work to all counsel, which included photographs and videos before, during and after the repair. There is no dispute that counsel for the Insalacos received this material.
C. The Water District's Motion for Summary Judgment
Nearly three and a half years after the repair work, the Water District moved for summary judgment against the Insalacos, on the ground, pertinent here, that its sewer main was not a substantial factor in causing the landslide. As relevant to this appeal, the Water District relied primarily on declarations from two retained experts: Ted Sayre, a registered geologist and engineering geologist; and David Schrier, a registered civil and geotechnical engineer. We briefly describe the evidence in support of the motion.
Although not at issue in this appeal, the Water District also argued that the causes of action for negligence and diversion of waters were improperly alleged against the Water District because it is a public entity. Additionally, the Water District sought to summarily adjudicate claims of other plaintiffs who are not parties to the instant appeal.
The Water District also relied on the declaration of Ken Deibert, an engineer employed by the Water District. Deibert provided the history of the sewer main and its repairs.
1. Sayre Declaration
On August 31, 2017, Sayre observed the repair work to replace a section of the Water District's sewer pipeline between 63 and 71 Avenida Martinez. He observed an exposed sewer pipeline in a recently excavated trench. In the trench, he confirmed the presence of an offset at a gasketed joint in the main. Sayre saw no indication of variability of moisture content in the soil immediately surrounding the offset joint, compared to the soil exposed in the sidewalls of the trench, which indicated to him that there was no visual evidence of a leak from the sewer pipe. He noted that no sewage odor was present in the soils around the pipe joint and in the general trench excavation, which he opined was consistent with the lack of any pipe leakage. While he was in the trench, Sayre noted a small continuous flow of sewage water that was audible from within the pipe; the flow was conveyed within the pipe across the distorted and displaced gasket joint with no apparent leakage.
Sayre observed that the exposed soil in the trench, including the backfill material immediately surrounding the offset joint and the pipe sidewalls, consisted of high plasticity "clayey" material that was tightly packed around the pipe. He did not see any voids or signs of water having flowed along the exterior of the pipeline; he also did not see any water ponding or collecting in the bottom of the trench excavation.
Sayre pasted into his declaration three color photographs that he took at the site on August 31, 2017, marking the photographs to illustrate his points. One photograph shows the separation of the pipe at the rubber gasket joint, with the photograph annotated to show which side of the pipe dropped (as compared to the other side of the pipe), an arrow to show the direction of landslide movement, and hashmarks to show the approximate margin of the landslide at that location. Another photograph shows the sewer pipeline separation at the rubber gasket joint, with arrows to show the direction of effluent flow in the sewer pipeline. The third photograph shows the trench from street level, looking in a southerly direction, with 63 and 71 Avenida Martinez directly behind the photographer. This photograph is marked with hashmarks to show the eastern margin of the landslide and an arrow to show the general direction of the landslide.
2. Schrier Declaration
Schrier visited Avenida Martinez on three occasions: June 6, 2017, October 27, 2017, and January 4, 2018. During these visits, Schrier walked the street and observed the conditions of the roadway, curbs, gutters, sidewalks, and the front and back yards of the residences and vacant lots, including the conditions of 71 Avenida Martinez.
Schrier reviewed Sayre's declaration, as well as records concerning the development of the Water District's sewer main, attempt to stabilize a prior landslide, investigations, and sewer pipeline videos. In addition, Schrier reviewed investigations of the 2017 landslide. Based on his education, experience, personal observations, and records review, he concluded that the Water District's sewer pipeline did not cause the 2017 landslide or aggravate the stability of the slope. Schrier, based on his "participation in many landslide investigations and stabilization designs," acknowledged that "while pipelines are broken by landslide movement, they typically do not cause the landslide, but are a victim of the landslide." He further opined that the "incipient movement of the 63/71 Avenida Martinez landslide caused the sewer pipeline to separate at the location identified" by Sayre. This opinion was based on the location of the separation "at the base of landslide headscarp margin, adjacent to the abrupt drop across the roadway," and is supported by Sayre's observation on August 31, 2017 that the exposed sewer pipe in the trench was "slightly separated at a joint, and the separation had vertical and lateral offsets that were in the same direction as the 63/71 Avenida Martinez Landslide movement (down slope and towards the north/creek)."
Relying in part on Sayre's findings, Schrier concluded that no water or effluent leaked out of the sewer pipe in the vicinity of the 63/71 Avenida Martinez landslide. In Schrier's opinion, no water or effluent leaked into the surrounding soil at the separated rubber gasket joint "because the soil surrounding the pipeline, including the separated joint, consist[ed] of a moderate to high plasticity impervious clay," which made this material a perfect" 'patch' for a separated pipe joint and to prevent leakage."
Schrier also looked at East Bay Municipal Utility District water use records for properties upstream of the landslide and the separated joint, which showed that about 200,000 gallons of water per year likely flowed through the Water District sewer pipeline in front of 71 and 63 Avenida Martinez "and across the joint separation without saturating or increasing the moisture content in the adjacent soil." He stated that this further supported his opinion that "no water or effluent leaked out of the sewer pipeline in the vicinity of the 63/71 Avenida Martinez Landslide" at issue here. This was consistent with Sayre not seeing wet soil or elevated moisture around the "flexible outer/exterior rubber gasket" in August 2017.
In Schrier's opinion, the separated pipeline has had no impact on the landslide movement. He based this opinion on the results of slope monitoring instruments installed in June and October 2018 along Avenida Martinez that show the 63/71 Avenida Martinez landslide has continued to move (up about 2 inches between November 2018 and January 2020) after the sewer pipeline separation was repaired in September 2017. Schrier concluded that "[b]ecause the 61/71 Avenida Martinez Landslide continues to move even though there are no new separations in the sewer pipeline since the [September] 2017 repair, it is readily apparent that the landslide movement is unrelated to the [Water District] sewer pipeline."
Schrier noted "there appears to be a claim that groundwater was conveyed into the sewer pipeline trench backfill from areas outside of the landslide to areas inside the landslide." Based, in part, on Sayre's "observation that the soil was packed tightly around the pipeline, that there were no observed voids, and no sign of water having travelled along the pipeline," Schrier opined that "no groundwater or surface water was conveyed from outside the landslide area into the 63/71 Avenida Martinez" landslide area by the Water District's "pipeline trench backfill or the abandoned section of sewer pipeline located downslope and to the west of the 63/71 Avenida Martinez [l]andslide."
D. The Insalacos' Opposition
In opposition to the Water District's motion, the Insalacos argued that the Water District "spoliated" the evidence from the sewer pipeline excavation and prevented the Insalacos from observing the evidence that the Water District relies on in support of its motion. The Insalacos argued that as a result, the Water District's evidence was subject to exclusion as a form of an evidentiary sanction, and summary judgment should be denied. Aside from this issue, the Insalacos contended that disputed factual issues existed as to whether the leak in the Water District's pipeline caused or contributed to the damage on their property.
Evidentiary Issue About August 2017 Repairs
The Insalacos rely on an exchange of emails to support their evidentiary claim. We describe in detail the undisputed email exchange that ensued and continued over the course of a few days in late August 2017.
These emails also form the basis of the Water District's rebuttal.
1. August 28, 2017 Emails Between Counsel
On August 28, 2017, the Insalacos' counsel, Clifford Hirsch, sent an email to the Water District's counsel, Todd Master, stating that he had "just been advised that either the County or [the Water District] is tearing up the road [Avenida Martinez]. This clearly raises a spoliation of evidence issue." The Insalacos' counsel demanded that the Water District "provide . . . a detailed description of the work being done," photographs of the site, and "an opportunity to inspect."
The Water District's counsel sent an email to the Insalacos' counsel that same day, advising that "[t]his is news to me, counsel for [the Water District], but I have a call in to my client to see what is happening and will advise to the extent my client has any information." Within the hour, the Water District's counsel emailed all counsel (including Hirsch), advising that the Water District "is conducting emergency repairs to a segment of its line on Avenida Martinez, which has been undermined by the landslide that has impacted your clients' property." The repair, which had begun on August 28, 2017, would be completed by September 6, 2017. "[T]he offset in the line will be exposed this week and . . . pipe-bursting will begin thereafter." Although the Water District would be taking photographs of the before and after conditions, the Water District's counsel stated that all counsel were "free to inspect the work as it proceeds, so long as you and your consultants do not interfere with Z and Z Plumbing." It was requested that "any such inspections be visual in nature from the roadway surface ...." The Water District's counsel wanted "to make it abundantly clear that nobody has permission to climb down into or enter any excavated portions of the project, for their personal safety."
In response, Hirsch wrote, "Please make certain that any damaged or corroded pipe is preserved." Within 30 minutes, the Water District's counsel replied, "they are doing a pipe burst, which necessarily means that the pipe will NOT be preserved. [¶] We have documented the condition, which again, was caused by the slide." Approximately 20 minutes later, Hirsch replied that his "understanding of 'pipe bursting' is that you intentionally destroy the existing pipe to avoid the expense of digging a trench. Basically you create launching and receiving pits and pull the new pipe through the old pipe and destroy the old pipe in place. In this case, it is a convenient way to destroy evidence. You started this project without giving notice and are intentionally destroying evidence under the guise of economy. Did you send a camera through the existing pipe? Where were the pipe breaks? Was the existing pipe x-rayed before it was destroyed? . . . Please be advised that we are not waiving any rights to assert that your client has intentionally destroyed evidence. We will seek the requisite evidentiary sanctions, if warranted. Please advise whether your client will continue to 'pipe burst' or will carefully replace any damaged pipe with trenching to preserve evidence."
Approximately 15 minutes later, the Water District's counsel wrote back that the Water District "is NOT destroying evidence. It is conducting an emergency repair of its property. The decision to pipe burst was made by engineers, not legal counsel, so it is not, as you say, a 'convenient way to destroy evidence . . . under the guise of economy.' To be very clear, and as I stated previously, [the Water District] is documenting what has occurred and what is being done in order to address any concerns with evidence. My client, like your clients, is a victim of this landslide and needs to conduct these repairs for the benefit of all involved-including your clients which tie into this line....You can assert what you wish, but I'd caution you against making such unsubstantiated and baseless spoliation claims against a public entity. Such claims are subject to sanctions. [¶] Again, you are welcome to inspect-as you are clearly on notice of what is happening now-and [the Water District] is documenting the condition of the line and the project, all of which will be made available when the project is completed."
2. August 29, 2017 Email
The next day, August 29, 2017, the Water District's attorney sent an email to all counsel (including Hirsch), advising that he had learned that "a number of you or your representatives/agents intend to inspect or are already on scene, which is fine. Again, you are welcome to observe and take photographs .... [¶] To keep you apprised of developments . . . I have received word that there will be three areas excavated-one at each end of the line that will be repaired and one at the offset in the line, which was caused by the land movement and is the reason for this work. I further understand that the best, and likely only, opportunity to see the existing pipe will be at this third excavated area. I am told this could occur later this afternoon or tomorrow morning .... [¶] The bursting is scheduled to occur later this week, once all excavations are exposed. Once the pipe bursting is completed, excavations will be made for the eight laterals."
3. August 30, 2017 Email Exchange
On August 30, 2017, the Water District's counsel received an email from attorney Jim Weixel who represented the Insalacos in their capacity as cross-defendants. Weixel advised the Water District's counsel that "workers have taped off the excavation area and are not permitting consultants viewing of the work on the pipe." Weixel asked if the Water District's counsel could "contact those on site and see what can be done to restore that access." The Water District's counsel responded to Weixel within 40 minutes, copying all counsel (including Hirsch), stating that he had "no control over the contractor or any safety measures they choose to implement during the work. That being said, I'm inquiring whether there might be some way to grant access, without interrupting the contractor's ability to perform the job."
Approximately 15 minutes later, the Water District's counsel sent another email stating that he had "been informed that a consultant was moved back from the area during excavation (for his own safety), but will now be permitted to look into the excavation area now, at his/her own risk. Again, nobody is permitted to actually climb down into the pit, for obvious safety reasons."
Causation Issue
In support of their claim that a triable issue of fact existed as to causation, the Insalacos relied on a declaration from their retained expert, Alan Kropp, a registered civil and geotechnical engineer.
Kropp inspected the Insalaco property at 71 Avenida Martinez, as well as the neighboring properties at 63 and 64 Avenida Martinez. Kropp reviewed the Sayre and Schrier declarations in support of summary judgment. Kropp disagreed with some of Schrier's opinions and rationale (some of which were themselves reliant on Sayre's observations) about causation. Kropp offered that although pipe breaks can certainly be caused by landslides, the converse is true that landslides can be caused by pipe breaks. Criticizing Schrier, Kropp stated that "[i]t is not enough to say simply that since a pipe break was located at or near a slide plane, the break must have been caused by land movement, rather than having been a contributing factor to the land movement."
Kropp also disagreed with the conclusion that there was no evidence that effluent could have leaked out of the pipe and contributed to the landslide. Kropp noted that Sayre had failed to observe whether there was any leakage from the bottom of the pipe.
Kropp questioned Sayre's conclusion that, because there was no odor or observable signs of leakage at the time of the August 2017 excavation, a leak had not been present before or at the time of the landslide six months earlier. Kropp was unconvinced that there had been no sewer odor at all because the pipeline was still in service at the time of Sayre's observation; in his view, at least some degree of odor should have been detectable. In Kropp's view, the fact that Sayre said there was no odor at the time of his inspection called into question the accuracy of his observations and, thus, the foundation for Schrier's opinions.
The Insalacos objected to the entirety of Schrier's opinions (declaration paragraphs 8 through 19) for lack of foundation, contending that Schrier "fails to explain how he reached his ultimate conclusion in his opinion from the facts stated, and his opinions are thus conclusory and inadmissible, because they are unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion." All of these objections were denied by the trial court and the evidentiary rulings are not challenged on appeal.
Kropp reviewed data from soil borings conducted in 2019 around the landslide, most specifically near the site of the Water District's pipe. He claimed that two borings (B-1 and B-2) showed elevated levels of moisture. Boring B-1 contained the highest moisture content at 14 feet of depth, which is the same level at which the Water District's line and break were located. Boring B-2 showed a large increase in moisture content from 10 to 17 feet of depth. Based on this data, Kropp opined that there is some evidence that water and other liquid effluent were leaking out of the Water District's pipeline at the break. The Water District, however, objected to this moisture evidence from 2019 as speculative, lacking foundation and irrelevant. The trial court sustained the objection, and its ruling is not challenged on appeal.
The Water District objected to Kropp's reliance on the soil borings as speculative, lacking foundation, and irrelevant, contending "soil boring study has no evidentiary value and . . . is based on data obtained . . . two years after the slide and 1.5 years after the repair of the offset in the sewer main in August 2017." (Original bolding and underling omitted.) The trial court sustained this objection, ruling that "Kropp does not explain how soil borings taken in 2019 can be used to determine moisture content during the slide or before the repairs to the sewer main."
Kropp also disagreed with Schrier's opinion that the clayey soil around the break in the pipe was" 'impervious'" and would have acted as a sealant, preventing moisture from permeating the soil. In his view, the photographs depicted a mixture of soils. That mixture was consistent with how a pipe trench would have been backfilled in 1963; the soils would not have been exclusively native clay. Also, the backfill would not have been compacted, which means the soil around the pipe would have remained more porous. The borings data demonstrated that about two-thirds of the borings showed a transition from impervious clay to impervious clay mixed with other soils at the 14-foot depth where the pipe break occurred. From these observations, Kropp opined there was no way to rule out leakage of moisture from the leak into the slide plane.
The Water District objected to Kropp's reliance on the soil borings as support for his opinion that the soil surrounding the break was not entirely "impervious clayey soil," but rather a "mixture of soil types." The Water District argued Kropp's opinion was a "baseless conclusion regarding the soil condition." The trial court overruled this particular objection, ruling that the soil boring data "provides information on the types of soil, and not just the moisture content in 2019," which, as we have noted, it excluded.
Finally, on the issue of causation, Kropp stated this: "The causation of the slide vis-a-vis the leaking [Water District] pipe is a classic 'chicken or egg' question: did the leak cause the slide, or the converse." Kropp answered the question by not answering it, declaring, "For the reasons I explain above [criticizing the Sayre and Schrier declarations], it is my opinion that the evidence is insufficient to mandate a conclusion that the slide caused the leak in the pipe, and that the leak was not a substantial factor in the causation of the slide."
E. The Water District's Reply
In response to the Insalacos' opposition, the Water District argued that it did not destroy or willfully suppress any evidence. The Water District relied on the very same emails regarding the 2017 repairs that were submitted with the Insalacos' opposition to the motion for summary judgment, as described above. In its view, the emails confirmed that emergency repairs had been required and that the Water District had advised the parties that they could observe and take photographs if they chose to do so. Further, the Water District argued that it had provided all counsel with copies of all photographs and video recordings taken of the existing pipe and the repaired pipe.
On the merits, the Water District argued it had shifted the burden on summary judgment by submitting substantial evidence to negate causation, most particularly the declarations of Sayre and Schrier. The Water District asserted that the Insalacos had not raised any issue regarding causation because they had not adduced any admissible evidence that water from inside the sewer main escaped from the offset and migrated toward the slide area. Rather, the Insalacos relied entirely on Kropp's declaration, which the Water District claimed was "wholly speculative and unsupported by admissible affirmative evidence."
F. Summary Judgment Hearing and Ruling
Prior to the hearing, the trial court issued a tentative ruling granting the Water District's motion. At the beginning of the hearing, counsel for the Insalacos pointed out the ways in which the Water District prevented the other parties from gathering evidence-including what the Insalacos called the "smell test"-during the excavation of the sewer line. Counsel contended that the Insalacos' experts were precluded from going down into the trench.
Counsel for the Water District argued that although the plaintiffs were focusing on the trench, the Insalacos' attorney and consultants could have been present at the time of the repairs. The court responded: "I understand that. [Plaintiffs' counsel] could have been there. He says it makes a difference that they would have had to be 15 feet away, standing outside the trench. You say it doesn't make a difference. I'll look at it again and see if I think it makes a difference."
The trial court took the matter under submission and later issued an order granting summary judgment in the Water District's favor. The trial court overruled the Insalacos' evidentiary objections that the Sayre and Schrier declarations lacked foundation, and concluded they were admissible evidence that the sewer pipeline did not cause the 2017 landslide or aggravate the stability of the slope. The trial court found that the Water District had shifted the summary judgment burden on causation to the Insalacos. The court concluded that although the Insalacos' expert disagreed with the Water District's experts, he did not provide his own opinion that the landslide was caused by the Water District's sewer main. Instead, Kropp stated that the causation for this landslide was a" 'chicken or egg'" question and that the evidence was" 'insufficient to mandate a conclusion that the slide caused the leak in the pipe.'" The trial court concluded that the Insalacos had failed to come forward with evidence to show that the Water District's sewer main caused the landslide.
The court further concluded there was no evidence of spoliation of evidence by the Water District. The court found that the Water District had provided before and after photographs of the site work and a video of the repairs. Before the pipe bursting occurred, the Insalacos had time to make requests for specific testing from the Water District; they did not do so. The court noted that if the Water District had refused to allow such testing, the Insalacos could have come to court with an ex parte request, which never happened.
The trial court also stated that even if there had been spoliation, it was unaware of case law that would support denying summary judgment based on spoliation of evidence.
Finally, the court rejected the Insalacos' argument that what happened here was like Insalaco I. The trial court explained that unlike in Insalaco I, where the Court of Appeal vacated the judgment because the trial court erroneously denied a continuance to conduct additional discovery, in the present round of litigation the plaintiffs had never sought a continuance for discovery, specifically a site inspection.
DISCUSSION
A. Standard of Review
In reviewing a judgment on an order granting summary judgment, "[t]he rules of review are well established. If no triable issue as to any material fact exists, the defendant is entitled to a judgment as a matter of law. [Citations.]" (Shin v. Ahn (2007) 42 Cal.4th 482, 499; Code Civ. Proc., § 437c, subd. (c).) As applicable here, the Water District, as the moving defendant, can meet its burden by demonstrating that "a cause of action has no merit," which can be established by showing that "[o]ne or more of the elements of the cause of action cannot be separately established ...." (Code Civ. Proc., § 437c, subd. (o)(1); see also, Romano v. Rockwell International, Inc. (1996) 14 Cal.4th 479, 486-487.) Once the defendant meets its burden, the burden shifts to plaintiffs to show the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).)
The Insalacos, as plaintiffs, bear the burden of establishing, by setting forth specific facts, that there are triable issues of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) Plaintiffs cannot create triable issues of material facts by merely speculating as to their existence. (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 99-100, 108 [plaintiffs" 'cannot manufacture a triable issue of fact through use of an expert opinion with self-serving conclusions devoid of any basis, explanation or reasoning [citation]' "]; see also Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1105 [plaintiff must" 'establish, by nonspeculative evidence,'" a triable issue of material fact].)
In ruling on the motion, the trial court must view the evidence in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) We review the record and the determination of the trial court de novo. (Shin v. Ahn, supra, 42 Cal.4th at p. 499.)
B. The "Spoliation of Evidence" Argument is Without Merit
The Insalacos argue that "[s]ound public policy" required the trial court to deny the motion for summary judgment on account of the Water District's "excavation and destruction" of the sewer pipe after the landslide. They claim that the Water District "dug up the pipe and then obliterated the relevant evidence," without notifying appellants that their experts were "conducting secret and undocumentable 'smell tests' at the bottom of the trench," and "without allowing any other parties to access, observe, document, or preserve that evidence for themselves." They conclude, "[t]hat was spoliation, plain and simple." We disagree.
1. Legal Principles
" 'Spoliation' is' "the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation."' [Citation.]" (Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 681 (Reeves).) Spoliation undermines the search for truth and is considered "an unqualified wrong." (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 9, 17.) That said, California does not recognize a separate tort remedy for intentional or negligent spoliation of evidence based on "the strong policy favoring use of nontort remedies rather than derivative tort causes of action to punish and correct litigation misconduct and the prohibition against attacking adjudications on the ground that evidence was falsified or destroyed." (Id. at p. 11.) "Chief among these [nontort remedies] is the evidentiary inference that evidence which one party has destroyed or rendered unavailable was unfavorable to that party." (Ibid.; see Evid. Code, § 413 [trier of fact may consider party's willful suppression of evidence]; Code Civ. Proc., § 2023.030, subd. (c) [evidentiary sanctions for misuse of discovery process]; see also CACI No. 204 ["You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party"].)
In the context of summary judgment, "'[d]estruction of evidence relevant to proof of an issue at trial can support an inference that the evidence would have been unfavorable to the party responsible for its destruction.' [Citations.] 'In order for an adverse inference to arise from the destruction of evidence, the party having control over the evidence must have had an obligation to preserve it at the time it was destroyed.' [Citation.] In addition, the party seeking the benefit of an inference from spoliation 'must demonstrate first that the [evidence was] destroyed with a culpable state of mind . . . Second, a party must show that the destroyed records were relevant to the party's claim or defense.' [Citations.]" (Reeves, supra, 186 Cal.App.4th at pp. 681-682.) "However, spoliation of evidence alone does not necessarily create a triable issue. In addition to spoliation, there must be' "some (not insubstantial) evidence" for the plaintiff's cause of action [to] allow the plaintiff to survive summary judgment.' [Citation.]" (Id. at p. 682; see Medical Laboratory Management Consultants v. American Broadcasting Companies, Inc. (9th Cir. 2002) 306 F.3d 806, 825, quoting Kronisch v. United States (2d Cir.1998) 150 F.3d 112, 128 [when a party "has produced no evidence-or utterly inadequate evidence-in support of a given claim," "the destruction of evidence, standing alone, is [not] enough to allow [the] party . . . to survive summary judgment on that claim"].)
It is unclear whether the trial court considered the Insalacos' spoliation claim to be akin to an evidentiary sanction subject to the court's discretion (see Van v. LanguageLine Solutions (2017) 8 Cal.App.5th 73, 80) or more in keeping with an evidentiary objection. It is an open question whether the correct standard of review for evidentiary objections in the summary judgment context is abuse of discretion or de novo. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535 [question left unresolved]; Turley v. Familian Corp. (2017) 18 Cal.App.5th 969, 978 [noting issue]; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 255, fn. 4 ["Whether abuse of discretion is the proper standard of review when rulings on evidentiary objections are based on papers alone presents an interesting question, one that is by no means settled"].) In any event, we would uphold the trial court's decision here under either standard.
2. Analysis
The Insalacos argue that the Water District, without providing any advance notice to the parties, dug into Avenida Martinez, exposed the sewer line and then allowed only its own personnel, contractors, and consultants the chance to observe the pipe and the soil conditions around it in any detail.
Although the evidence shows the Water District began repair work on the sewer pipeline without notifying the Insalacos and opposing counsel, once the matter was brought to the attention of the Water District's counsel, all parties and counsel were given the opportunity to view the excavation and the sewer pipe. There is no evidence that the repair work/pipe bursting was done with a culpable intent to destroy relevant evidence. Rather, the Insalacos were informed that the pipe bursting was part of the emergency repairs needed to fix the offset in the sewer pipeline. At no time did the Insalacos seek a temporary stay or other ex parte relief, not even after being expressly told that the very nature of pipe bursting meant that the original pipe would be destroyed.
Further, the Water District gave the Insalacos photographs and a video recording documenting the condition of the pipe before and after the repairs. Nothing in the record indicates that these photographs and video were altered or otherwise presented an inaccurate depiction of the pipe either before or after the repair.
The Insalacos emphasize that because they were denied access to the trench itself, they were required to take the word of the Water District's expert that there was no sewage odor in the area of the offset in the pipeline. On this record, there is no evidence Kropp (or any expert for the Insalacos) even visited the site during the August 2017 repairs or that the Insalacos sought the assistance of the court to let anyone get into the trench itself. There is no evidence, either, that it took standing in the trench itself to be able to smell whether there was an odor. Further, even without smelling the odor himself, Kropp challenged the results of the so-called "smell test," opining that given that the sewer main was still active there would have been at least some sewage smell. In any event, as we have noted, Kropp otherwise had access to the same evidence that the Water District's experts utilized, notably the photos and video of the pipe both before and after the repair.
Finally, the Insalacos attempt to cast the trial court's ruling on this evidentiary issue as another example of trial court error in their lawsuit, citing our decision in Insalaco I, supra, 49 Cal.App.5th 506. The comparison does not hold up. In Insalaco I, plaintiffs sought ex parte relief, requesting a continuance of the pending summary judgment motion by another party to this lawsuit (a neighboring church) in order to conduct additional discovery, specifically a site inspection on the church's property. (Id. at p. 512.) The trial court denied the ex parte application, and when the time came to file their opposition brief to a motion for summary judgment two months later, the Insalacos did not seek another continuance. (Id. at p. 515.) In granting the church's summary judgment, the trial court faulted the Insalacos for failing to seek a continuance in order to garner more evidence to oppose the summary judgment motion. (Ibid.) We vacated the judgment on the grounds that the trial court erred in denying the ex parte request for a continuance. (Ibid.)
This appeal is entirely different. Here, the Insalacos did not make a discovery request to inspect the trench in the months leading up to the repairs. Moreover, when it became apparent that the existing pipe would be destroyed by the pipe bursting, the Insalacos did not seek a stay or any other ex parte relief.
Accordingly, the trial court did not err in finding that the Water District did not engage in spoliation of evidence. In any event, as we explain below, they have failed to meet their burden to show a triable issue of material fact that the Water District's sewer pipeline was a cause of the 2017 landslide.
C. The Insalacos Have Not Met Their Burden of Raising a Triable Issue of Fact Regarding Causation
There is no dispute that the Insalacos' property sustained extensive damage in the 2017 landslide. To prove their claims for nuisance, inverse condemnation, dangerous condition of public property and trespass against the Water District at trial, the Insalacos must come forward with evidence that the Water District's broken pipe was a substantial factor in causing the landslide. (See Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 969.)
By presenting expert testimony that no effluent/water leaked or seeped out of the sewer pipeline at the offset, the Water District established that the broken sewer pipe-which was discovered and repaired several months after the 2017 landslide-did not cause the 2017 landslide or aggravate the stability of the slope. The Water District supported its motion with photographs and a video of the condition of the affected part of the pipeline before and after the repairs, along with evidence that the slope of the slide continued to shift even after the repairs. Accordingly, the Water District shifted the burden to the Insalacos to present evidence showing the existence of a material fact as to causation.
Expert opinion on causation "resting solely on speculation and surmise is inadequate to survive summary judgment because it fails to establish a' "reasonably probable causal connection"' between the [alleged conduct] and the plaintiffs injury." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 775, quoting Leslie G. v. Perry &Associates (1996) 43 Cal.App.4th 472, 487.)
Here, Kropp disagrees with the Water District's experts, but he does not offer his own opinion that the sewer main was a substantial factor in causing the 2017 landslide. Rather, he states causation is a "chicken or egg" question, opining that "[w]hile pipe breaks can certainly be caused by landslides, the converse is true; landslides can be caused by pipe breaks." This evidence was insufficient to establish a reasonably probable causal connection between the broken pipe and the 2017 landslide. (See Leyva v. Garcia, supra, 20 Cal.App.5th at p. 1105 [where expert evidence shows cause of a fire is unknown, causation is "relegated to the realm of mere possibility and conjecture, which would be insufficient as a matter of law to support plaintiffs' negligence cause of action"].)
To the extent the Insalacos rely on Kropp's statement that the soil boring data taken in 2019 demonstrated there was "some evidence" that water or other liquid had leaked from the sewer pipeline break in 2017, the trial court sustained the Water District's objection to this part of Kropp's declaration. In any event, even were this "evidence" before the court, no explanation is provided to explain how soil borings taken in 2019 have any relevance in determining the moisture content of the soil during the slide or prior to the repairs. (See Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123 [expert's opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value]; Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 530 [to defeat summary adjudication, plaintiffs cannot rely on assertions that are conclusionary or speculative].) A mere possibility of causation is not enough. (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at pp. 775-776.)
Finally, the Insalacos argue that the "smell test" used by the Water District's experts is "really an unsupported opinion or conclusion regarding 'intent'" that cannot support summary judgment. This argument fails for at least three reasons. The trial court overruled all of the Insalacos' evidentiary objections to Sayre's and Schrier's declarations. As noted, the Insalacos do not separately challenge the evidentiary rulings on appeal. Moreover, the Insalacos did not object on the grounds that the so-called "smell test" constituted impermissible" 'state of mind'" evidence. Lastly, even without the "smell test" evidence, we would still conclude that the Water District had shifted the burden to the Insalacos, and the Insalacos failed to raise a triable issue of fact regarding causation.
For the reasons discussed, we conclude the Insalacos have not met their burden of establishing, by nonspeculative evidence, a triable issue of material fact regarding causation. (See Leyva v. Garcia, supra, 20 Cal.App.5th at p. 1105.)
Finally, in a footnote at the conclusion of their opening brief on appeal, the Insalacos assert that it "bears mentioning, but not explaining in detail" that the trial court's award of costs to the Water District must also be vacated since the Water District is not entitled to summary judgment. Having failed to provide this court with any meaningful analysis on the issue of costs, we conclude the issue has been forfeited on appeal. (Meda v. Autozone, Inc. (2022) 81 Cal.App.5th 366, 374 [matters not properly raised or that lack adequate legal discussion deemed forfeited].)
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to the Water District.
WE CONCUR: Stewart, P.J., Markman, J. [*]
[*] Judge of the Alameda Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.