Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Roger D. Randall, Judge. (Retired Judge of the Kern S.Ct. assigned by the Chief Justice pursuant to article VI, § 6 of the Cal. Const.) Super. Ct. No. S-1500-CV-237375 LPE
Thomas Anton & Associates, Thomas J. Anton, Gabriel A. Godinez, and Steven J. Shim for Plaintiffs and Appellants.
Klein, DeNatale, Goldner, Cooper, Rosenlieb & Kimball, Catherine E. Bennett, David J. Cooper, and Gary Logan for Defendants and Respondents.
OPINION
Gomes, J.
Plaintiff homeowners (Homeowners) appeal from the judgment in favor of defendants King Pak Farms, Inc. (King Pak) and Anthony Vineyards, Inc. (Anthony Vineyards) (collectively Farmers) following a bench trial in an action arising from flood damage Homeowners incurred in 1998. Homeowners contend the judgment is not supported by substantial evidence. As we shall explain, we disagree and will affirm.
FACTUAL AND PROCEDURAL HISTORIES
Background Facts
Farmers own agricultural land located along Rockpile Road approximately four milesnorth of Arvin, California. King Pak’s quarter of a section of land is located to the west of Rockpile Road and Anthony Vineyards’s one-eighth of a section of land is located to the east of Rockpile Road, directly across from the north half of King Pak’s land.
Situated on the northern edge of both parcels, which have a combined northern boundary of approximately one mile, is a portion of a man-made levee commonly referred to as the tamarisk tree line, which runs east-west along the south side of Mountain View Road. Rockpile Road, which runs north-south, intersects the tamarisk tree line at approximately a 90 degree angle. The tamarisk tree line was planted in the 1940’s to control grasshoppers. On the north side of the tamarisk tree line is a ditch and an embankment or berm, which has been enlarged over the years with rock, riprap, dirt and other material dumped there.
Seven miles to the west of where Rockpile Road intersects the tamarisk tree line is Weedpatch Highway. On the west side of Weedpatch Highway, just north of Lamont, is a development known as the “Reynolds Tract,” where the Homeowners lived in 1998.
Caliente Creek is an intermittent stream that is dry or has minimal flows in many years. Tehachapi Creek and Walker Basin Creek flow into Caliente Creek (the Creek) above or northeast of Highway 58. The Creek is situated in a canyon that extends westerly out of the Tehachapi Mountains and turns toward the south. The canyon is bordered by bluffs between 30 and 70 feet high; one bluff begins on the north side of the canyon and turns to the south to become the western bluff, while the other bluff begins on the south side of the canyon and turns to the south to become the eastern bluff. The western bluffs are sand hills which terminate several hundred feet north of the tamarisk tree line and the eastern bluffs are natural foothills which continue past the tamarisk tree line to the south. The mouth of the canyon is substantially more than one mile wide and opens onto an alluvial fan. The area between the east and west bluffs is a flood plain, which means that for a large flow event, there is a potential for water to be present over that entire area.
Historical records show that the Creek has flooded several times within the last 75 years. Those floods occurred in 1932, 1943, 1944, 1945, 1966, 1969, 1978, 1983, 1995 and 1998. The largest flood in recorded history, classified as a 70 to 80 year event, occurred in 1932, with a flow of 23,500 cubic feet per second (cfs), while the second largest, classified as a 50 year event, took place in 1983, with a flow of 16,000 cfs. In 1998, the Creek’s flow reached 1,000 cfs, which was estimated to be an event that would occur once every seven to eight years.
When the State of California built Highway 58 between 1959 and 1961, it built two bridges in the Creek flood plain — one is the Caliente Creek Bridge, located on the flood plain’s western side, and the other is the Neumarkel undercrossing, located on the flood plain’s eastern side and under which runs Neumarkel Road. After the 1983 flood event, the Lamont Storm Water District and others constructed a series of water diversion berms in Section 17 (hereafter the Section 17 berms) upstream of Highway 58 in the canyon containing the Creek.
The First Trial
Following the 1998 flood, 32 Homeowners in the Reynolds Tract sued King Pak and various members of the Pavich family, Anthony Vineyards’s predecessors in interest. Homeowners sought damages and injunctive relief against Farmers, alleging they were responsible for the flooding of Homeowners’ properties because Farmers had maintained the tamarisk tree line.
A jury trial was held, at which Homeowners contended (1) Caliente Canyon is a natural watercourse that runs intermittently and terminates in an alluvial fan that is the creek’s natural drainage and absorption area; (2) the tamarisk tree line collects the water within the channel, concentrating and discharging it onto the alluvial fan beyond its natural limit, changing its character to flood waters; and (3) Farmers’ conduct in maintaining, improving and repairing the tamarisk tree line caused the flooding of Homeowners’ properties. Homeowners further asserted the tamarisk tree line diverted the water from using part of its natural watercourse by preventing the south half of the alluvial fan of the Creek from functioning as a natural drainage and absorption area. Farmers contended that the water contacting the tamarisk tree line was flood water because the Section 17 berms diverted the water from its natural channel, thereby giving Farmers the right to divert the water under the common enemy doctrine, and the tamarisk tree line had become a natural condition that diverted water back to the natural channel in a reasonable manner.
Following the liability phase of a bifurcated trial, the jury found, pursuant to a special verdict, that Famers did not “divert water out of the natural water course” and, as instructed, answered no further questions. Judgment was entered for Farmers, which 15 of the 32 Homeowners appealed.
In an unpublished opinion, this court reversed the judgment and remanded to the trial court for further proceedings. (Desilagua v. King Pak Farms, Inc. (Jul. 1, 2002, F035990) p. 11 (Desilagua).) Noting that Homeowners had argued at trial that the diversion of water into the Creek’s western channel by the Section 17 berms and tamarisk tree line increased the velocity of the water, thereby causing their properties to flood, we concluded the special verdict form and jury instructions contained legal error because both conditioned liability only on a diversion out of the natural watercourse. As we explained, since under Locklin v. City of Lafayette (1994) 7 Cal.4th 327 (Locklin) a riparian owner who discharges water into a watercourse, diverts water within a natural watercourse, or constructs improvements in a natural watercourse is obligated to use reasonable care, “the special verdict form was too narrowly drafted because it required a diversion out of the natural watercourse and excluded consideration of the reasonableness of diversions within the watercourse and diversions of floodwater.” (Desilagua, supra, at pp. 5-6.) We considered the error to be prejudicial and therefore reversed. (Desilagua, supra, at pp. 6-7.)
Retrial After Remand
After remand, Homeowners substituted Anthony Vineyards in place of a Doe defendant and filed a second amended complaint alleging a single cause of action for trespass and seeking damages and an injunction requiring Farmers to remove the tamarisk tree line. In early 2004, the Paviches settled with the Homeowners, which was held to be a good faith settlement within the meaning of Code of Civil Procedure section 877.6. In 2006, this court resolved a collateral matter, overturning the trial court’s order disqualifying Homeowners’ attorneys. (Amaya v. King Pak (May 23, 2006, F047383) [nonpub. opn.].)
When the retrial finally began in October 2007, the parties agreed to a court trial before the judge who presided over the jury trial. The parties’ contentions remained the same at the second trial as at the first concerning the definition of the watercourse and characterization of the waters that reached Homeowners’ properties in 1998. Homeowners contended Caliente Canyon was a natural watercourse with the bed of the Creek being the entire Caliente Canyon, and the waters that reached their properties was stream water the Farmers diverted, while Farmers contended the natural watercourse was the western channel of the Creek and the Section 17 berms diverted waters out of the western channel, i.e. out of the watercourse, east and south to Farmers’ lands, so the waters that reached Homeowners’ properties were floodwaters.
At retrial, Homeowners were Jose Amaya, Robert and Barbara Judd, and 20 other individuals.
Each side presented expert testimony at the retrial. Homeowners’ expert, Morris Taylor, a registered civil engineer, opined: (1) the Creek historically flows across the entire width of Caliente Canyon and is contained by the Canyon’s east and west bluffs, which were approximately 1.5 miles apart and which he considered to be the creek’s east and west banks, and temporary embankments constructed within the channel do not limit the flows from using the entire channel width, if necessary, to transport water for any given event, (2) since the tamarisk tree line was planted, adjacent landowners had enlarged the embankment to protect their properties from damage caused by naturally occurring Creek flows, to the detriment of downstream landowners; and (3) the tamarisk tree line embankment acted as a dam across the Creek channel and diverted naturally occurring Creek flows out of its natural channel to the west, where it caused damage to landowners in the Reynolds Tract.
Taylor testified that the Creek has three channels: (1) the western channel, which follows the west bank; (2) the middle or central channel, which intersects the tamarisk tree line along Mountain View Road about a half mile east of the channel’s west side and continues south; and (3) the eastern channel, which follows the toe of the eastern bluffs, turns slightly southwest and joins the middle channel about three-quarters of a mile south of Mountain View Road. In Taylor’s opinion, none of the water contained between the west and east bluffs of Caliente Canyon escaped any particular channel because “for a given flow event it has the capability of extending from east bank to the west bank” and there was no containment to prevent the flow from expanding out to the entire channel. Taylor explained that flows in the “Caliente channel” can be anywhere within the “channel width” from one year to the next, and depending on the storm’s magnitude, the water could come to the west side one year, the middle the next year, and the east side the following year. In Taylor’s opinion, as long as the water stayed within the east and west banks, it was not floodwater.
Taylor explained that in his opinion the Creek had never flooded because it was an “uncontrolled channel,” and as long as the water remained between the western and eastern bluffs, it was not floodwater. Taylor agreed that even if water backed up at Highway 58 and crested over the highway, it would not be floodwater because it remained within the channel’s natural flow. Taylor opined that in the absence of the tamarisk tree line, in 1998 water would have flowed south or southwest past Mountain View Road, around the south and east sides of Arvin, and into Kern Lake.
Farmers presented the testimony of two experts. The first, Richard L. Schafer, is a civil engineer and land surveyor who specializes in hydrology. After examining topographic maps and aerial photographs from various agencies prepared over the preceding nearly 100 years, Schafer offered 11 opinions at trial, seven of which were directed to the definition of the watercourse and floodwaters.
Schafer opined: (1) historically, the Creek’s flows had converged along the western bluff of the flood plain and, since construction of Highway 58, passed through the Caliente Creek bridge and continued southward on the canyon’s western side; (2) during the February 1998 event, the flows would have followed their historical course but for the Section 17 berms north of Highway 58, as the topography of the flood plain would not allow otherwise; (3) historically flows of less than ten year frequencies remained in the Creek channel, but in 1998, the Section 17 berms caused the flows, which were less than the ten year frequency, to be diverted to the Neumarkel undercrossing; (4) the Neumarkel undercrossing, constructed in 1959 to 1961 by Caltrans for Neumarkel Road, was not designed to accommodate channel flow; (5) the tamarisk tree line, in existence since before 1950, and the berm and ditch immediately north thereof, in existence since at least 1983, collectively provided and continued to provide flood protection for many properties to the south from floodwater that escaped the Creek channel; (6) in February 1998, the Section 17 diversion berms redirected the Creek flow from the historical Caliente Creek channel through the Neumarkel undercrossing, thereby causing the floodwaters to pass through the ditch on the north side of the tamarisk tree line, and but for the diversion berms, no substantial flow of water would have passed through the ditch; and (7) the water that flowed through the Neumarkel undercrossing and to the tamarisk tree line in 1998 was floodwater that escaped the Creek channel.
In Schafer’s opinion, floodwaters are those that escape the natural channel. According to Schafer, the Creek’s channel is the western channel, which has a bank, bed and bank at the channel; the Caliente Canyon’s western bluff is well above the channel and is not part of the channel. Schafer also disagreed that the canyon’s eastern bluff was the eastern bank of the Creek channel.
Farmers’ other expert, Roger Poff, a soils scientist, reviewed soils surveys, topographical maps and air photographs originating over the last nearly 100 years. Poff opined that the canyon constituted a flood plain that contained a “braided stream channel system.” Poff defined a flood plain as “the area where water overflows the banks of the channel or channel system in this context, and creates floodwater deposits, which in this case are technically called flue vents.” Poff explained that each flood event laid down a small increment of sand of varying sizes that built up over the years. Poff determined the Creek’s natural channel went under the Caliente bridge on Highway 58 and hugged the canyon’s west side. He identified a second channel that started out on the south side of the valley, worked its way from east to west, and hooked up with the other channel on the west bluff. Poff did not find any evidence of a stream channel on the eastern side of the Caliente Canyon. Poff also did not believe the Creek had a center channel. Poff agreed that during various flood events, water has flowed down the center and ventured to the east of the Caliente Canyon.
Poff gave four reasons why the Caliente Canyon did not define the creek watercourse: (1) none of the soil surveys showed any evidence of river gravel deposits in the soils other than where the main channel was as he had defined it; instead, they showed flood plain deposits; (2) in all of the maps and photographs he had seen, the channels all showed up at the same place and he did not see any evidence that over a different period of time there had been channels located across the valley; (3) in order for the notion that the entire Caliente Canyon was the stream bed to be valid, the canyon floor would have to be dead flat to allow the stream to wander about at its own will, but the topographic maps show a definite drop off from the east side to the west side; and (4) if the entire canyon was the stream bed, there should be erosional features on the eastern bluffs that indicate a river bank erosion, but there is no evidence of bank erosion and, in fact, there are deposits and small alluvial fans which indicate there has not been stream erosion against those bluffs.
Following oral arguments, the court announced its decision from the bench. The court made nine findings of fact: (1) from the railroad tracks in the north to the tamarisk tree line, the Creek runs through a flood plain ended by a natural bluff on the plain’s south then east side and sand hills to the plain’s north and west side; (2) historically, the creek had two branches, one which abutted the sand hills to the west referred to by some witnesses as the course of the creek, which was the main channel and drained to the San Joaquin Valley floor, and the other running down the middle of the plain west of Neumarkel Road and east of the western channel intersecting the north line of section 31 at its midpoint, which ended somewhat south of the tamarisk tree line but short of the extent of the western channel; (3) at the time of the 1998 flood, which caused water to flow at the rate of 1,000 cfs, manmade improvements in the plain had completely disrupted the Creek’s natural flow — the completion of Highway 58 in 1961 provided only two possible means for the creek to flow south of that point, through either the Caliente bridge on the plain’s west side or the Neumarkel overpass or bridge on the east side, and construction of the Ward berm, along with the Neumarkel levee and wing levee, after the 1983 event caused much of the water coming down the creek in 1998 to be directed to the east and toward the Neumarkel bridge, which was also guided by the delta of sediment built up north of, and against, Highway 58 between the two bridges; (4) water passing under the Neumarkel bridge flowed down the plain’s east side to the tamarisk tree line, where it was diverted west to the creek’s historic main channel and proceeded onto the valley floor, ultimately flooding Homeowners’ properties and the Reynolds tract; (5) the area that became the Reynolds tract had not, during recorded water events before 1998, been impacted by events of the level of the 1998 water event; (6) between 1986 and the 1998 flooding, before King Pak and Anthony Vineyards acquired their properties, improvements to the berms surrounding the tamarisk tree line raised them approximately four to five feet; (7) there is no evidence of natural or man-made changes which may have occurred in the area between where the 1998 waters were returned to the main channel of the Creek and the Reynolds tract during the period between the previous 1,000 cfs event and the 1998 event; (8) since the 1998 event, some of the plaintiffs had moved away from the Reynolds tract; and (9) since 1998, improvements had been made vis-à-vis the future effect of floodwaters on the Reynolds tract.
The court then applied the law to its factual findings, as follows: (1) although Farmers did not construct the tamarisk tree line, they may be liable for maintaining a nuisance; and (2) since the waters which encountered the tamarisk tree line in 1998 did not come by either the creek’s western main channel or its secondary middle channel, but instead entered the area south of Highway 58 to the east of either channel, they constituted floodwaters under Everett v. Davis (1941) 18 Cal.2d 389 (Everett).
Considering the reasonableness of the parties’ actions with respect to the 1998 event in light of Locklin, supra, 7 Cal.4th 327, the trial court found: (1) Homeowners acted reasonably when they encountered the flood waters, which they had no reason to anticipate; (2) Farmers or their predecessors in interest did not act unreasonably in allowing the tamarisk tree line to remain intact or in shoring it up during the event, “given that they faced waters diverted toward the property by upper riparian owners and given that any waters which would have crossed their lands without the presence of the tree line would have inevitably flooded landowners immediately south of their property”; and (3) turning the waters to the historic main channel, i.e. western channel, “cannot as a matter of law be considered unreasonable because a failure to act, or more accurately, action, to remove the tree line at the time of the event would have required a choice of whose property their action would impact as opposed to a choice which would help them to avoid or lessen the impact on property belonging to others.”
The court further found there was no basis for concluding that retention of the tamarisk tree line in its present condition can be found to constitute a continuing nuisance as a matter of law due to the changes to the terrain above Highway 58; the plaintiffs who no longer lived in the Reynolds tract did not have standing to pursue a claim of continuing nuisance against either defendant; and since there was no remaining issue regarding trespass, it dismissed Anthony Vineyards as a defendant as no action could lie against it on any theory other than nuisance. Finally, the court stated that judgment based on these findings was for the defendants and against the plaintiffs and if there was a request for a statement of decision, King Pak would prepare the proposed statement in accordance with Code of Civil Procedure section 632.
Homeowners’ counsel immediately requested “a writ,” which the court stated would be treated “as a request for statement.” The court, however, ordered Homeowners to put their request in writing so they could articulate the particular issues they wanted addressed. Homeowners, however, never filed a written request for statement of decision and none was prepared. Judgment was entered in favor of Farmers on November 24, 2007, which stated: “Based on the evidence presented at the trial of this matter, from October 15, 2007 through October 19, 2007, and in accordance with the Court’s findings of fact and applications of law to fact, made in open court on October 19, 2007, [¶] IT IS HEREBY ORDERED, ADJUDGED AND DECREED that judgment be entered as follows: [¶] Judgment in favor of King Pak Farms, Inc., and against all plaintiffs, together with recoverable costs and fees in the amount of $ cost bill to be filed. [¶] Judgment in favor of Anthony Vineyards, Inc., and against all plaintiffs, together with recoverable costs and fees in the amount of $ cost bill to be filed.” Homeowners’ timely appeal followed; eleven of the Homeowners are appellants.
DISCUSSION
A stream is a watercourse that has a source and a terminus, banks and channels, through which water flows. (Mogle v. Moore (1940) 16 Cal.2d 1, 8-9.) A course may be considered a stream even if there is not a constant flow of water; the streambed can be dry for periods. (Ibid.) A watercourse “is a channel with defined bed and banks made and habitually used by water passing down as a collected body or stream in those seasons of the year and at those times when the streams and the region are accustomed to flow.” (San Gabriel Valley Country Club v. Los Angeles (1920) 182 Cal. 392, 397.)
Flood waters are waters that escape from a stream and overflow the adjacent territory. (Everett, supra, 18 Cal.2d at p. 393.) Under the common enemy doctrine, property owners may protect their properties from flood waters, even to a neighbor’s detriment, if those flood waters escape “because of their height from the confinement of a stream and run[] over adjacent property.” (Ibid.) The element of abnormality is implicit in the definition of flood waters; “they are flood waters because of their escape from the usual channels under conditions which do not ordinarily occur.” (Ibid.)
In our prior opinion from the first appeal in this case, we concluded that the trier of fact should have considered the reasonableness of Farmers’ actions with respect to diversions of water within a natural watercourse and the construction of improvements therein, but was precluded from doing so. Under the rule of reasonableness, a property owner who makes alterations or improvements on upstream property that causes an increased volume of surface water to discharge into a natural watercourse, causing downstream property damage, may be liable for that damage unless the upstream owner’s conduct was reasonable under all the circumstances. (Locklin, supra, 7 Cal.4th at p. 337.) The test for reasonableness “requires consideration of the purpose for which the improvements were undertaken, the amount of surface water runoff added to the streamflow by the defendant’s improvements in relation to that from development of other parts of the watershed, and the cost of mitigating measures available to both upper and downstream owners. Those costs must be balanced against the magnitude of the potential for downstream damage. If both plaintiff and defendant have acted reasonably, the natural watercourse rule imposes the burden of stream-caused damage on the downstream property.” (Ibid.)
Here, the trial court found that the waters that encountered the tamarisk tree line in 1998 were flood waters within the meaning of Everett. The court also found that Farmers acted reasonably in (1) allowing the tamarisk tree line to remain intact and in shoring it up during the 1998 event, as they were faced with waters diverted by upper riparian owners which could have flooded property owners to the south of Farmers’ properties, and (2) in diverting the waters into the Creek’s western channel because if the tree line were removed, other properties would have flooded.
On appeal, Homeowners challenge the trial court’s factual findings. Specifically, Homeowners contend the trial court erred in finding: (1) the Creek’s natural flow was not contained within the canyon’s east and west bluffs; (2) the tamarisk tree line does not interfere with the Creek’s natural flow; (3) the waters that traveled under Neumarkel bridge were flood waters; and (4) Farmers acted reasonably in diverting the 1998 waters away from their properties and onto that of the Homeowners. They assert the trial court ignored, misapplied or misunderstood the evidence “which irrefutably established the flow of the Creek to be within the ‘bank, bed, bank’ of the Creek.”
Homeowners do not argue in either their opening or reply briefs that the trial court erred in refusing to find a continuing nuisance. Accordingly, we treat this as a waiver of the issue on appeal and do not address it. (Norby Lumber Co. v. County of Madera (1988) 202 Cal.App.3d 1352, 1356, fn. 1.)
As Farmers point out, neither party requested a statement of decision. In the absence of such a statement, an appellate court will presume the trial court made all factual findings necessary to support the judgment for which substantial evidence exists in the record, i.e. the necessary findings of ultimate facts will be implied and the only appellate issue is whether substantial evidence supports the implied findings. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267 (Shaw).) A trial court’s tentative or memorandum decision is no substitute for a statement of decision. (Id. at p. 268.) Although its oral comments in rendering judgment may be valuable in showing the trial court’s theory, they cannot be used to impeach the judgment on appeal. (Ibid.) “Absent contrary indication in the final judgment or statement of decision, the appellate court will assume that, during the period before rendition of judgment, the trial court realized any error and corrected it.” (Ibid.)
Where the judgment expressly incorporates the trial court’s factual findings or conclusions of law contained in a memorandum decision, however, they become part of the judgment and accordingly guide the appellate court’s review of those issues. (Shaw, supra, 170 Cal.App.4th at p. 269.) Here, the judgment, which King Pak’s counsel prepared, expressly incorporated the trial court’s “findings of fact and applications of law to fact, made in open court on October 19, 2007.” Accordingly, the trial court’s findings of fact and legal conclusions guide our review of these matters and we reject Farmers’ contention that the absence of a statement of decision precludes our review of this appeal.
Homeowners recognize the standard of review is substantial evidence. “‘When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.’ [Citation.] The substantial evidence standard of review is applicable to appeals from both jury and nonjury trials.” (Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal.App.4th 138, 143, italics omitted.)
Contrary to Homeowners’ assertions, substantial evidence supports each of the trial court’s findings they challenge. Homeowners contend that Caliente Canyon, i.e. the flood plain between the canyon’s east and west bluff, is the Creek, therefore water diverted onto the flood plain is not flood water. Farmers’ experts, however, opined that the Creek has one channel, i.e. the western channel, and the canyon the channel runs through is not the creek, but instead is a flood plain, which Farmers’ expert Poff defined as an area where water overflows the channel’s banks. Farmers’ expert Schafer opined that in 1998, the Section 17 berms diverted water from the western channel into the flood plain and through the Neumarkel undercrossing, which was not designed to accommodate channel flow, and from there, the waters traveled to the ditch on the north side of the tamarisk tree line and continued until they reached Homeowners’ properties. These opinions support the trial court’s findings that the Creek had one main channel on the west and in 1998, the Section 17 berms diverted water out of this channel into the flood plain. From these findings, the trial court reasonably could conclude these waters became flood waters, as they were diverted out of the historical channel and onto adjacent property, i.e. the flood plain, and from there flowed through the Neumarkel undercrossing to the tamarisk tree line. It also reasonably could conclude that this was an abnormal event, as water escaped the historical channel under conditions which do not ordinarily occur, as only ten flood events had occurred in the last 75 years. (See Everett, supra, 18 Cal.2d at p. 393.)
As Farmers point out, when challenging the sufficiency of the evidence, the appellant has the burden of setting forth all of the relevant evidence, including that unfavorable to its position. (Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 368.) “If the appellant fails to set forth all of the material evidence, its claim of insufficiency of the evidence is waived.” (Ibid.) Farmers assert we should treat Homeowners’ claim as waived because they cite to evidence most favorable to their position and ignore much of the contrary evidence. While we agree Homeowners’ brief fails to fully set forth all of the relevant evidence, we nevertheless will address the merits.
Homeowners contend the trial court’s factual findings are contradictory and argue the court’s statements show it found the creek to be the flood plain. We disagree, as the trial court specifically stated that the creek historically had two branches, the western and central channels, the flow of which was disrupted by the construction of the Section 17 berms and Highway 58. Any confusion in the court’s decision could have been clarified had Homeowners requested a statement of decision. (Code Civ. Proc., §§ 632, 634; see Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58-60.)
Homeowners also contend that because the waters that reached the tamarisk tree line were not flood waters, Farmers acted unreasonably when they maintained and built the tree line, which prevented the water from traveling south onto the alluvial fan. There was evidence, however, from which the trial court could conclude Farmers acted reasonably in maintaining the tamarisk tree line, as Schafer opined the tamarisk tree line and the ditch north of it provided flood protection for properties to the south. If Farmers removed the tree line, the properties to the south of Farmers could flood. Thus, Farmers were left with a Hobson’s choice of which downstream properties to subject to potential flooding, i.e. the Reynolds Tract or the properties to the south. Moreover, Schafer opined the tamarisk tree line had been maintained in a manner consistent with proper and accepted agricultural customs and standards in the area. Homeowners do not point to any evidence that contradicts these opinions.
In essence, Homeowners are asking us to reject the testimony of Farmers’ experts and adopt their expert’s opinions. As the trier of fact, however, the court was free to accept the opinions of Farmers’ experts and reject Homeowners’ expert’s opinion. (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 204 [“‘resolution of conflicts in the evidence, assessment of the credibility of witnesses and the weight to be given the opinions of experts were all matters within the exclusive province of the trier of fact.’”]
Other than pointing to their own evidence, Homeowners do not present any basis for overturning the trial court’s resolution of the conflicting expert opinions. While they would like us to reject Schafer’s and Poff’s testimony, on appeal we cannot reweigh the evidence and we do not consider their testimony so inherently lacking in credibility as to be unworthy of consideration. “The testimony of witnesses who were apparently believed by the trier of fact may be rejected on appeal only if that testimony was physically impossible of belief or inherently improbable without resort to inferences or deductions.” (DiPirro v. Bondo Corp. (2007) 153 Cal.App.4th 150, 195.) At most the record before us reveals the presentation of contrary evidence by Homeowners, which does not subject Schafer’s or Poff’s testimony to repudiation or doubt. (Ibid.)
At oral argument, Homeowners’ counsel lodged with the court copies of various maps, including inundation maps of eight of the floods, which were entered into evidence at trial. These maps, which we have reviewed, do not provide a basis for rejecting the testimony of Farmers’ experts.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
WE CONCUR: Ardaiz, P.J., Wiseman, J.