Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV031021
McAdams, J.
The dispute in this case concerns responsibility for claimed damages from a watercourse that runs through the plaintiffs’ properties. The plaintiffs contend that the watercourse is part of the storm drain system of the City of Morgan Hill and that the City therefore is liable. The trial court disagreed. Following a bench trial, the court rejected the plaintiffs’ claims against the City for inverse condemnation, trespass, and nuisance. The court also rejected the City’s cross-claims for indemnity against a landscaper who had altered the watercourse.
The plaintiffs and the City both appeal. For reasons explained below, we shall affirm the judgments on both the complaint and the cross-complaint.
The parties also challenge certain post-judgment orders concerning costs; those challenges are the subject of a companion appeal, H032205. On our own motion, we ordered consideration of the two appeals together for purposes of briefing, oral argument, and decision. We denied the parties’ joint request to consolidate the appeals.
BACKGROUND
I. Facts
A. The Parties
Plaintiffs are Judith Berkman, A. William Berkman, Marcia Schneider, Kenneth Schneider, and Ralph Heron. Defendant and cross-complainant is the City of Morgan Hill. Cross-defendant is Torben Rasmussen, the Berkmans’ gardener and landscaper.
B. Plaintiffs’ Properties
Plaintiffs own homes on three adjoining lots in a 17-lot subdivision in the City of Morgan Hill called Llagas Valley Acres, which is also known as Tract 6006. The subdivision was approved in 1977. The Berkmans own lot 12, which is located at 1135 Deana Court, Morgan Hill; the Schneiders own lot 13, at 1125 Deana Court; Heron owns lot 11, at 1145 Deana Court.
Plaintiffs’ homes are all situated downstream from a 31-acre watershed. Of plaintiffs’ three properties, Heron’s is the furthest upstream and Schneiders’ the furthest downstream. The watershed drains through an open watercourse running through plaintiffs’ properties.
The parties variously refer to the watercourse as a ditch or a seasonal creek. The terminology is not determinative. In this opinion, we shall call it a stream, channel, or watercourse. The particular watercourse at issue here is sometimes called the Deana Court North Ditch, as distinguished from the Deana Court South Ditch (also called the Teresa Lane Ditch). Unlike the Deana Court North Ditch, whose status is at issue here, it is undisputed that the Deana Court South/Teresa Lane Ditch is “officially part of the City’s drainage system.”
On the Heron property, the watercourse is located within a 15-foot-wide storm drainage easement that runs along his shared boundary with the Berkmans; on the Berkman and Schneider properties, the watercourse is located within 40-foot-wide storm drainage easements that bisect their parcels. A grading plan was filed when the subdivision was approved, which contains this notation: “Exist’g Ditch to remain in natural state.”
C. Later Development
After the Llagas Valley Acres subdivision was approved in 1977, the City allowed further developments upstream, including at least two new roads and a number of new homes. In 1980, there were eight homes in the watershed; between 1980 and 1998, seven more homes were built.
D. Events Preceding This Litigation
On two occasions in the 1980s – during the winters of 1981-1982 and 1985-1986 – the Berkmans experienced problems with the watercourse flooding their property. The problems included “debris build up that caused the backyard to be a lake during heavy rains.” On each occasion, Mr. Berkman contacted the City about the problem, but he was told that his problem with the watercourse was “a private matter and not a public issue.”
In 2002, the Berkmans hired Rasmussen to do landscaping and other work on their property. Part of the requested work was intended to “mitigate the problems” that the Berkmans were having with the watercourse. To that end, Rasmussen made changes to the section of the watercourse located on the Berkmans’ property, which included deepening it, widening it, lining it with a fabric membrane, and adding landscaping rocks.
In December 2002, during heavy rain storms, there was damage to the Berkmans’ improvements in the watercourse; among other things, some of the smaller landscaping rocks or “cobbles” were washed away downstream. Following the December 2002 storm, the Berkmans contacted the City for help. The City sandbagged along the watercourse.
Correspondence between the Berkmans and the City started shortly thereafter.
In January 2003, Mr. Berkman wrote a letter to the City. In it, he acknowledged the City’s sandbagging and he expressed “concerns about possible home flooding due to increased volume of water and debris buildup from upstream erosion on the storm drainage easement (the ‘SDE’) traversing our property.” In February 2003, the City responded. After noting the existence of the easement and the requirement that the ditch remain in its natural state, the letter stated that “the City assumed responsibility to maintain the ditch in its ‘natural’ condition.”
In September 2003, the City wrote in response to further correspondence from the Berkmans, which expressed their concerns about increased runoff. In that letter, the City stated that it was “unable to verify” the Berkmans’ claim that other development in their vicinity was increasing the volume in the channel and that it could not “identify any source which would contribute to increased run-off causing excessive changes to the channel other than the alterations to the ‘natural conditions.’ ”
In September 2004, the City wrote in response to an e-mail from Mrs. Berkman about her “Deana Court flooding concerns.” That letter stated: “Because the natural channel on the north side of Deana Court was never accepted by the City for public maintenance, it is the private property owners’ duty and responsibility to maintain it, not the City’s.”
II. Procedural History
A. Pleadings
1. Complaint
In November 2004, plaintiffs filed this action against the City. Plaintiffs filed a first amended complaint in May 2005. Plaintiffs alleged that the City was responsible for damages from overflow of the watercourse running through their properties. The complaint asserted causes of action for inverse condemnation, trespass, nuisance, and declaratory relief.
Plaintiffs also named two other defendants, who were subsequently dismissed.
Plaintiffs also asserted a cause of action for dangerous condition of public property, which they voluntarily dismissed prior to trial.
The City denied the allegations of the complaint.
2. Cross-Complaint
In June 2005, the City cross-complained against Rasmussen, who had altered the streambed while acting as the Berkmans’ landscaper. The City asserted claims against Rasmussen for equitable indemnity, declaratory relief, and third party tort. The City brought its cross-complaint following Rasmussen’s deposition, which disclosed the nature and extent of the changes that he had made to the Berkmans’ section of the watercourse.
Rasmussen denied the allegations of the cross-complaint.
B. Trial
In April 2006, the court conducted a seven-day bench trial. The parties offered extensive documentary evidence, as well as the testimony of both lay and expert witnesses.
Following the close of the evidence, the parties submitted written post-trial arguments. The parties presented oral arguments in November 2006.
C. Decision and Judgment
In February 2007, the court issued a tentative decision. Both parties filed objections. In April 2007, the trial court issued a 29-page statement of decision.
In its statement of decision, the trial court first addressed and rejected plaintiffs’ inverse condemnation claims. In doing so, the court applied the California Supreme Court decision in Locklin v. City of Lafayette (1994) 7 Cal.4th 327. Guided by that authority, the trial court determined: (a) the stream is a natural watercourse; (b) the City did not convert the watercourse into a public work or incorporate it into the public storm drain system; (c) the City did not fail to use reasonably available, less injurious alternatives; and (d) plaintiffs failed to show recoverable damages for inverse condemnation. The court also rejected plaintiffs’ claims for trespass, nuisance, and declaratory relief.
Turning to the City’s cross-complaint, the court determined: (a) the City failed to carry its burden of proving negligence on Rasmussen’s part; and (b) the City failed to carry its burden of proving damages from Rasmussen’s conduct.
Along with its April 2007 statement of decision, the court issued separate judgments on the complaint and on the cross-complaint.
D. Plaintiffs’ Post-Judgment Motion
In June 2007, plaintiffs moved for relief from the defense judgment on the complaint. The basis for plaintiffs’ motion was that their counsel recently had learned of Ordinance 47, a superseded city code provision bearing on the question of whether the City had accepted dedication of the storm drainage easements over plaintiffs’ properties.
Plaintiffs applied for an order shortening time for hearing on the motion, which the City opposed and the trial court denied.
In August 2007, the trial court denied the motion on the ground of lack of jurisdiction, plaintiffs having appealed the judgment by then.
III. Appeals
In June 2007, plaintiffs filed a notice of appeal from the judgment denying them relief on their complaint.
In July 2007, the City filed a notice of cross-appeal from the judgment denying it relief on its cross-complaint against Rasmussen. Rasmussen filed a motion in this court, seeking to dismiss the City’s cross-appeal on the ground that it was untimely. The City opposed the motion. We denied Rasmussen’s dismissal motion.
In this opinion, we first address the contentions raised by plaintiffs in their appeal; we then turn to the City’s arguments in its cross-appeal.
The parties’ arguments are presented in seven appellate briefs, which contain a total of nearly 86, 000 words.
PLAINTIFFS’ APPEAL
The main thrust of plaintiffs’ contentions – both below and on appeal – is that the City is liable in inverse condemnation for their damages from the watercourse. Consistent with plaintiffs’ emphasis, we focus on that theory first. Thereafter, we briefly address plaintiffs’ other claims.
Inverse Condemnation
I. Legal Principles
“An inverse condemnation action is an eminent domain proceeding initiated by the property owner rather than the condemner. The principles which affect the parties’ rights in an inverse condemnation suit are the same as those in an eminent domain action.” (Breidert v. Southern Pac. Co. (1964) 61 Cal.2d 659, 663, fn. 1.) “Article I, section 19 of the California Constitution provides the basis for an inverse condemnation action by stating that private property may not be taken or damaged for public use unless just compensation has been paid.” (Hauselt v. County of Butte (2009) 172 Cal.App.4th 550, 556; Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 742.) “One policy underlying this constitutional provision is to distribute throughout the community the loss inflicted upon the individual by the making of the public improvements.” (Ullery v. County of Contra Costa (1988) 202 Cal.App.3d 562, 568.) But given that policy, for a public entity “to be held liable in inverse condemnation, damage to the plaintiffs’ property must occur as a result of a public improvement, public work, or public use.” (Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783, 794.)
Concerning plaintiffs’ particular claims here, the leading case is the California Supreme Court’s 1994 decision in Locklin v. City of Lafayette, supra, 7 Cal.4th 327. As stated in Locklin, “a governmental entity may be liable under the principles of inverse condemnation for downstream damage caused by an increased volume or velocity of surface waters discharged into a natural watercourse from public works or improvements on publicly owned land. It will be liable if it fails to use reasonably available, less injurious alternatives, or if it has incorporated the watercourse into a public drainage system or otherwise converted the watercourse itself into a public work.” (Locklin, at pp. 337-338.)
II. Application
Applying the foregoing principles to the evidence in this case, we conclude that the trial court’s judgment in the City’s favor on plaintiffs’ inverse condemnation claims must be affirmed. We address each challenged determination in turn.
A. The stream is a natural watercourse.
The trial court first determined that the stream is a natural watercourse. Plaintiffs challenge that determination, asserting the existence of undisputed evidence that the stream is not a natural watercourse. Rejecting plaintiffs’ challenge, we find sufficient legal and evidentiary support for the trial court’s determination.
1. Review standard
As a matter of longstanding precedent, the question of whether a particular channel “is a watercourse in legal contemplation must be determined as matter of law from the evidence in the case.” (Sanguinetti v. Pock (1902) 136 Cal. 466, 470; see also, Steiger v. City of San Diego (1958) 163 Cal.App.2d 110, 114 [upholding as “adequately sustained by the evidence” the “trial court’s determination that in contemplation of law it was not a watercourse”].)
2. Legal basis for the trial court’s determination
As legal support for its determination, the trial court quoted and relied on the Locklin definition of a natural watercourse. (Locklin, supra, 7 Cal.4th at p. 345.) Contrary to plaintiffs’ suggestions, the court acted properly in doing so.
In their reply brief, plaintiffs Schneider and Heron characterize the Locklin definition of a natural watercourse as dictum.
As explained in Locklin: “A natural 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 in the region are accustomed to flow.’ ” (Locklin, supra, 7 Cal.4th at p. 345.) “Alterations to a natural watercourse, such as the construction of conduits or other improvements in the bed of the stream, do not affect its status as a ‘natural’ watercourse.” (Ibid.) “A natural watercourse includes ‘all channels through which, in the existing condition of the country, the water naturally flows, ’ and may include new channels created in the course of urban development through which waters presently flow.” (Ibid.)
The Locklin definition reflects longstanding law that further supports the trial court’s determination that the stream is a natural watercourse. In the San Gabriel case, for example, the channel at issue “did not exist as a definite water course, at least as far as the plaintiff’s land, before the region was settled up, but was created as the result of settlement. Nevertheless it is natural in the sense that it was originally made by the waters themselves, and not by man, although it is possible that except for the acts of man the waters would not have been kept together so as to make a channel. In any event it has now existed for such a length of time as the channel for the natural drainage of the watershed tributary to it that the manner of its creation is not material, and it has all the attributes of a water channel wholly natural in origin.” (San Gabriel Valley Country Club v. Los Angeles County, supra, 182 Cal. at p. 397.)
3. Evidentiary support for the trial court’s determination
At trial, the court heard testimony from plaintiffs’ expert, Joseph D. Countryman, and from the City’s expert, James R. Schaaf. The court also received in evidence an old photograph on which the watercourse can be seen, as well as a map of the area, dated 1892, which shows the watercourse, identified there as Ravine D.
Countryman testified that he was hired by plaintiffs to make four determinations: “[1] if the ditch behind the plaintiffs’ homes was a natural channel, [2] if it was a channel that was reasonably designed and implemented, ” [3] if it was “part of the drainage system of the City of Morgan Hill” and “[4] if Mr. Rasmussen’s work on the Berkman property led to damages or caused damages in this case.” Countryman opined that the watercourse “clearly was constructed by man for the economic development of the flood plain.” Countryman noted “the linear nature of the channel that we have here on an alluvial flood plain” in stating his opinion that the watercourse was man-made. Asked for his opinion about whether the stream at issue here is a natural watercourse, Countryman answered: “It was a watercourse that was altered by man, entrenched to stay in one place. So I don’t know how else to answer that.” Countryman later reiterated his opinion that the watercourse “was a creation of a man-made – the initiation of confining the flows to a regular path across the alluvial flood plain, man did that and that then resulted in what we see out there today.”
Schaaf stated that he was hired by the City to “look at a drainage facility in the city of Morgan Hill, and to give [his] opinion on its adequacy.” Schaaf did not “know if there’s a legal definition for a natural watercourse or not, ” but he viewed it as “just a watercourse that has a bed side so it forms a bank, and that’s where water runs.” Schaaf testified that his research had disclosed no facts that would lead him to conclude that the stream “was anything other than a natural watercourse”. Moreover, during his on-site observations of the stream as it flowed through the Heron and Schneider properties, Schaaf saw no indication “that it was anything but a natural creek.” Schaaf stated that “a natural creek could be straight in an alluvial fan [¶]... for a portion of it, ” though he could not say how long a stretch. Schaaf declined to render an ultimate opinion that the stream is a natural watercourse.
Addressing the evidentiary component of its natural watercourse determination, the court first noted Countryman’s opinion “that people must have altered water channels on what was then an alluvial flood plain at some time in the distant past.” But the court then referred to trial exhibits showing that “this watercourse has been part of the natural landscape for at least over a century... and was depicted on an 1892 map of the area.” The court also cited the lack of evidence “that the City had ever dug, constructed, or built the watercourse, or had requested anyone else to do so.” The court also found it “noteworthy” that the grading plan for plaintiffs’ property requires the stream to remain in its “ ‘natural state.’ ” Based on this evidence, the court found that the stream at issue here is a natural watercourse.
4. Analysis
The trial court’s determination presents a question of law, which is informed by the evidence in the case. (Sanguinetti v. Pock, supra, 136 Cal. at p. 470; Steiger v. City of San Diego, supra, 163 Cal.App.2d at p. 114.) Plaintiffs rely on their expert’s opinion that the watercourse was man-made. But that evidence is not determinative of the character of the watercourse, given its long existence. As in San Gabriel, “it has now existed for such a length of time as the channel for the natural drainage of the watershed tributary to it that the manner of its creation is not material, and it has all the attributes of a water channel wholly natural in origin.” (San Gabriel Valley Country Club v. Los Angeles County, supra, 182 Cal. at p. 397.)
In this case, then, the trial court’s determination that the stream is a natural watercourse is adequately supported both by the evidence and by the law.
B. The stream is not a public work.
We now turn to plaintiffs’ assertion that the watercourse is a public work. As we explain, we discern no basis for overturning the trial court’s determination that the City neither converted the stream into a public work nor incorporated it into the public drainage system. Furthermore, we are not persuaded that a contrary conclusion is compelled by Ordinance 47, which came to light after trial. As a prelude to discussing these specific points, we first set forth the general legal principles that guide our analysis.
1. Legal precepts
“A property owner may recover just compensation from a public entity for ‘any actual physical injury to real property proximately caused by [a public] improvement as deliberately designed and constructed... whether foreseeable or not.’ ” (California State Automobile Assn. v. City of Palo Alto (2006) 138 Cal.App.4th 474, 479 (CSAA).) Put another way, “the public entity will be liable in inverse condemnation if its design, construction, or maintenance of a public improvement poses an unreasonable risk of harm to the plaintiff’s property, and the unreasonable aspect of the improvement is a substantial cause of damage.” (Arreola v. County of Monterey, supra, 99 Cal.App.4th at p. 739.) “A storm drainage system constructed and maintained by a public entity is a public improvement.” (Ullery v. County of Contra Costa, supra, 202 Cal.App.3d at p. 568; see Cal.Const. Art. 1, § 19, subd. (e)(5) [defining public work].) “Such drainage systems when accepted and approved by the City become a public improvement and part of its system of public works.” (Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345, 362.)
Where a natural watercourse is involved, the plaintiffs must establish that the public entity “exercised control over” the watercourse and “thereby transformed it into a public work or improvement.” (Locklin, supra, 7 Cal.4th at p. 370.) “Utilizing an existing natural watercourse for drainage of surface water runoff and requiring other riparian owners to continue to do so does not transform the watercourse into a public storm drainage system.” (Ibid.) “A governmental entity must exert control over and assume responsibility for maintenance of the watercourse if it is to be liable for damage caused by the streamflow on a theory that the watercourse has become a public work.” (Ibid.)
In assessing whether a public entity has exercised control over the watercourse, one relevant consideration is the existence of “an express or an implied acceptance of the drainage easements.” (Locklin, supra, 7 Cal.4th at p. 370.) However, in footnote 21 of the Locklin decision, the California Supreme Court questioned “whether requiring and/or accepting drainage easements across private property to a privately owned natural watercourse is evidence of an exercise of control over the watercourse itself.” (Id. at p. 370, fn. 21.)
Another consideration is the public entity’s efforts at maintaining or repairing the watercourse. Thus, “dominion and control can be shown if the public entity does maintenance and repair work.” (Yox v. City of Whittier (1986) 182 Cal.App.3d 347, 354; accord, Ullery v. County of Contra Costa, supra, 202 Cal.App.3d at p. 568.) However, as the Locklin court held: “The evidence that on occasion City assisted residents by removing fallen trees from the streambed, on request of the owners and with permission to cross their property in doing so, would not support an inference that City was exercising control over the watercourse.” (Locklin, supra, 7 Cal.4th at p. 370.)
Whether a natural watercourse has become a public improvement is a question of law, which necessarily is informed by the evidence in the case. As Locklin explains: “Public use is a question of law, ... and, when the factual issues on which that question turns have been resolved, must be decided by the court.” (Locklin, supra, 7 Cal.4th at pp. 369-370.)
2. Validity of the trial court’s determination
a. The court’s factual findings
In a painstaking analysis covering more than nine full pages of the statement of decision, the trial court considered each of four specific grounds proffered by plaintiffs below in support of their argument that the City either had converted the stream into a public work or had incorporated it into the City’s drainage system. The trial court stated: “The totality of the evidence was that the City used the existing watercourse to drain the 31 acre watershed, but that the City never accepted the dedication of the storm drainage easement, the City never caused any improvements to be made to the watercourse as it crossed the plaintiffs’ properties, the City never maintained or otherwise exercised control over the watercourse as it flowed through the plaintiffs’ properties, nor did the City ever otherwise exercise control over the easements that burdened the plaintiffs’ properties.”
As summarized by the trial court in its statement of decision, plaintiffs asserted “that the City incorporated the watercourse into the City’s drainage system or converted it into a public work in one of four ways: [1] by formally accepting the developer’s dedication of the easement through Resolution No. 1752; [2] by exercising dominion and control over the watercourse or easement; [3] by ‘public user, ’ i.e., the public or City of Morgan Hill using the dedicated property for the purpose for which it was dedicated; or [4] by charging storm drainage fees for storm drainage services that the City provides to areas within the watershed.”
b. Analysis
In reviewing the trial court’s determination that the watercourse is not a public work, we proceed in two steps. First, we uphold the above findings based on the lack of any appellate challenge to them by plaintiffs. Next, we address and reject plaintiffs’ separate contention that the watercourse is a public work because “ ‘public drainage water’ ” flows through it.
(i) Failure to challenge findings
In the appellate briefs filed by the Schneiders and Heron, plaintiffs offer no challenge to the trial court’s specific factual findings set forth above. In the opening brief filed by the Berkmans, plaintiffs assert that the City did accept the dedication of the storm drainage easement. But that assertion is not tied to any claim of error by the trial court; to the contrary, it rests solely on Ordinance 47, which was not before the court at trial.
Given the nature of plaintiffs’ arguments in this court, they have conceded or forfeited any appellate challenge to the specific findings set forth above. (See Souza v. Silver Development Co. (1985) 164 Cal.App.3d 165, 169, fn. 2 [where party conceded that adverse judgment on cross-complaint was supported by substantial evidence, it “abandoned any contention that the judgment as to that cross-complaint was in error”]; 108 Holdings, Ltd. v. City of Rohnert Park (2006) 136 Cal.App.4th 186, 193, fn. 3 [where party’s “brief contains no argument on or discussion of” a particular issue, court may “treat it as abandoned”].) We therefore uphold the trial court’s determination that plaintiffs’ trial evidence failed “to prove that the City accepted the dedication [through Resolution No. 1752], exerted such control over the watercourse or assumed responsibility for the maintenance of the watercourse so that it is liable for damage caused by the stream flow on a theory that the watercourse has become [a] public work.”
(ii) Diversion of “public” waters
In arguments presented in the Schneider/Heron opening brief, plaintiffs assert that the trial evidence established that the watercourse is part of the storm drain system. In making that assertion, plaintiffs partly rely on “evidence that Llagas Road diverts water into the watershed (and thus into the Ditch) that otherwise would drain into a different watershed and not enter the Ditch.” According to plaintiffs, “a natural watercourse loses its ‘natural’ character if water is diverted into it from a different watershed.” Plaintiffs also rely on claimed admissions by the City “that it has continuously used the Ditch to provide ‘storm drainage service’ to the watershed and that ‘public drainage water’ flows through the Ditch whenever it rains.” As a sweeping proposition of law, plaintiffs maintain: “Any watercourse that provides storm drainage to public and private land is a public work within the meaning of article I, section 19.”
Plaintiffs’ arguments are unavailing.
In making their first point – that the “natural” character of a watercourse is lost by its diversion – plaintiffs rely on two cases. Neither assists them.
Plaintiffs’ first cited case is Bauer v. County of Ventura (1955) 45 Cal.2d 276. In Bauer, the plaintiffs alleged that the defendants had “built a system of ditches and levees diverting the waters of the Franklin Barranca, a natural watercourse, away from their natural stream.” (Id. at p. 281.) If left in its natural state, the watercourse “would flow away from and never toward the plaintiffs’ land.” (Ibid.) The plaintiffs claimed damages based on “the acts of the defendants in constructing the ditch, banks and levees, ” as a result of which “water overflowed onto and damaged plaintiffs’ property.” (Id. at p. 282.) In this case, by contrast, there is no evidence of any such construction by the City. Nor is there evidence that the watercourse itself was diverted from its historic channel, which is through the plaintiffs’ properties. Bauer thus is factually distinguishable. Furthermore, Bauer does not stand for the proposition that a watercourse’s natural character may be lost by diversion. Bauer simply holds that “the diversion of water from its natural course resulting in damage to adjacent property is actionable.” (Id. at p. 283.) Bauer further explains: “Mere improvement within an existing watercourse which accelerates rather than diverts the flow does not give rise to a cause of action when damage results from an overflow.” (Ibid.)
The second case cited by plaintiffs is Frustuck v. City of Fairfax, supra, 212 Cal.App.2d 345. In Frustuck, the trial court found that “the City was a party to the diversion of waters which were caused to flow over Sir Francis Drake Boulevard and upon Frustuck’s land.” (Id. at p. 358.) “The trial court, in essence, found that there were three instances of inverse condemnation, to wit: (1) The diversion of drainage waters; (2) the construction of the 24-inch culvert; and (3) the excavation and enlargement of the ditch and the piling of waste lengthwise along said ditch.” (Id. at p. 359.) Like Bauer, Frustruck is factually distinguishable. And like Bauer, Frustuck does not stand for the proposition that a watercourse’s natural character may be lost by diversion. Frustuck simply follows Bauer. (Id. at pp. 359-360.)
In making their second point – that a natural watercourse becomes part of a public storm drainage system when storm waters are drained through it – plaintiffs rely on four cases: Bauer and Frustuck, discussed above, plus two other cases, Souza v. Silver Development Co., supra, 164 Cal.App.3d 165, and Skoumbas v. City of Orinda, supra, 165 Cal.App.4th 783. The cases do not support plaintiffs’ contention.
In Souza, the trial court found “that the creek was utilized by the City as part of its storm drainage system.” (Souza v. Silver Development Co., supra, 164 Cal.App.3d at p. 170.) In upholding that finding, the Court of Appeal observed: “The evidence established that the City required the developer to construct storm drains to carry surface water into the creek and accepted the dedication of those drains. The City also required the developer to dedicate an easement for drainage along the creek channel, and accepted that easement. That evidence was sufficient to support the court’s finding.” (Ibid.) The court thus held: “Even though a part of the system was not man-made, the entire system was a public improvement or project which might subject the City to liability in inverse condemnation.” (Ibid.) Our case is factually distinguishable. With respect to the specific watercourse at issue here, the Deana Court North Ditch, there is no evidence that “the City required the developer to construct storm drains” or that it “accepted the dedication of those drains.” (Ibid.) And as discussed elsewhere in this opinion, there is no basis for a finding that the City accepted the dedication of the storm drainage easements over the plaintiffs’ properties.
In Skoumbas, the defendant city owned “three drainage related mechanisms” – “Candlestick Road, the catch-basin at the end of Candlestick Road, and [a section] of drain pipe laid in 1964 when Candlestick Road was reconfigured and relocated.” (Skoumbas v. City of Orinda, supra, 165 Cal.App.4th at pp. 793-794.) The plaintiffs sued “over damage to their property caused by the outfall of storm water diverted from Candlestick Road and emanating from a public improvement; to wit: Candlestick Road, the catch-basin and the initial section of pipe.” (Id. at p. 794.) Reversing defense summary judgment, the Skoumbas court concluded that the defendant city could “be liable in inverse condemnation” if its improvements were a substantial cause of the plaintiffs’ damage. (Ibid.) The court observed that the defendant’s predecessor had “accepted Candlestick Road, the drainage culvert, and the first segment of the storm drain as public property.” (Id. at p. 795.) The court therefore concluded: “That portion of the drainage system is a public work.” (Ibid.) Again, our case is factually distinguishable. Our case involves a natural watercourse, not the diversion of surface waters.
In its statement of decision, the trial court rejected the plaintiffs’ argument that “because the City and the public used the watercourse to drain the watershed, the City is deemed to have accepted a common law dedication by ‘public user.’ ” As noted above, plaintiffs have not challenged that determination. More to the point, the determination is legally correct. As the trial court aptly observed, the plaintiffs’ argument “is contrary to the view advanced by the Supreme Court in Locklin, ” which holds: “Utilizing an existing natural watercourse for drainage of surface water runoff and requiring other riparian owners to continue to do so does not transform the watercourse into a public storm drainage system.” (Locklin, supra, 7 Cal.4th at p. 370; see also Ullery v. County of Contra Costa, supra, 202 Cal.App.3d at p. 570 [though “the creek was a part of the drainage system which drained a 40-acre watershed, the absence of dominion and control” by defendants “supports the trial court’s finding of no public use”].)
In sum, we find no basis for overturning the trial court’s determination that the watercourse is not a public work. We next consider whether a contrary conclusion is dictated by Ordinance 47, which came to light after trial.
3. The effect of Ordinance 47
Plaintiffs’ arguments concerning Ordinance 47 are presented in the Berkman briefs. Pared to their essence, plaintiffs’ arguments can be summarized as follows: (1) As a matter of law, Ordinance 47 demonstrates that the City accepted dedication of the storm drainage easement. (2) As a matter of law, the City’s acceptance of the dedication converted the watercourse into a public work.
Before turning to the substance of those arguments, we shall first (a) discuss the procedural context in which the parties’ disagreement over Ordinance 47 arose; (b) address several threshold issues; (c) summarize the law relating to dedication; and (d) set forth key provisions of Ordinance 47.
a. Procedural background
In May 2007, while preparing for this appeal, plaintiffs’ counsel became aware of a published case arising out of litigation in the 1970s involving the City: Save El Toro Association v. Days (1977) 74 Cal.App.3d 64 (Save El Toro). The court in Save El Toro discussed a city ordinance that was enacted in 1976, the year before the Llagas Valley Acres subdivision was approved.
On June 6, 2007, plaintiffs’ counsel sent a letter demanding “that the City produce immediately” the superseded ordinance “referred to in the Save El Toro decision.” On June 12, 2007, the City produced a copy of Ordinance 47.
Based on the discovery of Ordinance 47, plaintiffs moved for relief from judgment on their complaint. The court denied plaintiffs’ application for an order shortening time. Ruling on the motion for relief from judgment after plaintiffs had noticed this appeal, the court denied it for lack of jurisdiction.
b. Threshold issues
At the threshold, we consider three disputed issues.
The first threshold issue involves plaintiffs’ assertion of “misconduct” on the City’s part in failing to produce Ordinance 47 sooner, an assertion that the City refutes. Deciding this case does not require us to resolve plaintiffs’ misconduct claim, and we therefore decline to reach it.
The second threshold issue concerns the City’s assertion that plaintiffs’ “premature filing” of this appeal “deprived the trial court of jurisdiction to decide their pending motions.” Plaintiffs dispute that assertion, maintaining that they “were required to file their notice of appeal before the trial court ruled on their motion for relief from judgment in light of Ordinance 47.” As before, we are not required to decide this question in order to resolve this case; for that reason, we do not reach it.
The remaining threshold issue is whether Ordinance 47 is properly before us.
The City maintains that it is not. In the City’s words, “Ordinance 47 was never made an exhibit during the trial of the case, nor was it properly admitted as evidence during the post trial motions, such as by a request for judicial notice.” The City points out that Ordinance 47 appears only as an exhibit to a declaration by plaintiffs’ counsel, “filed in support of the motion to vacate the trial court’s judgment.” And in the City’s view, counsel’s “declaration is insufficient to have the ordinance properly authenticated or admitted as evidence by the trial court. Nor have Appellants moved to have the ordinance admitted into evidence in this appeal.”
Plaintiffs disagree. They assert that Ordinance 47 is already “before this court by virtue of its inclusion in Appellants’ Appendix.” Plaintiffs defend the authenticity of Ordinance 47 on the ground that the City produced it. Plaintiffs add: “Even if there were any doubt as to whether Ordinance No. 47 were properly part of the record, this Court would be obligated in any event to take judicial notice of the Ordinance as the controlling law at the relevant time in this case.”
Because a municipal ordinance is the legislative enactment of a public entity, it is a proper subject for judicial notice. (Evid. Code, §452, subd. (b); Longshore v. County of Ventura (1979) 25 Cal.3d 14, 24; Traverso v. People ex rel. Dept. of Transportation (1996) 46 Cal.App.4th 1197, 1210, fn. 14.) As a reviewing court, we may judicially notice a municipal ordinance, even if it was not presented to the trial court. (Evid. Code, §459, subd. (a); County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1111; cf. DeYoung v. Del Mar Thoroughbred Club (1984) 159 Cal.App.3d 858, 862-863.) In this case, we shall exercise our discretion to take judicial notice of Ordinance 47 in order to resolve plaintiffs’ appellate claims concerning its effect.
c. General legal principles governing dedication
A valid dedication requires both an offer of dedication and an acceptance. (City Of Los Angeles v. Kysor (1899) 125 Cal. 463, 466; Hanshaw v. Long Valley Road Assn. (2004) 116 Cal.App.4th 471, 477.) “A dedication without acceptance is, in law, merely an offer to dedicate, and such offer does not impose any burdens nor confer any rights, unless there is an acceptance.” (County Of Inyo v. Given (1920) 183 Cal. 415, 418-419.) Thus, until an offer of dedication has been accepted, there is no public interest. (Baldwin v. City of Los Angeles (1999) 70 Cal.App.4th 819, 837.) Nor is there any public liability under inverse condemnation principles. (Yox v. City of Whittier, supra, 182 Cal.App.3d at p. 355.)
The public entity’s acceptance of an offer of dedication “ ‘may be express or implied.’ ” (Baldwin v. City of Los Angeles, supra, 70 Cal.App.4th at p. 837; Wright v. City of Morro Bay (2006) 144 Cal.App.4th 767, 770.) “Express acceptance occurs when formal acceptance is made by the proper authorities.” (Ibid.) “Formal acceptance of a dedication is either by notation on the final [subdivision] map or by later resolution.” (Ullery v. County of Contra Costa, supra, 202 Cal.App.3d at p. 567, fn. 1.) But subdivision map approval alone “does not constitute such an acceptance” even when the map includes an offer of dedication. (Yox v. City of Whittier, supra, 182 Cal.App.3d at pp. 354-355; accord, Ullery v. County of Contra Costa, supra, 202 Cal.App.3d at p. 570; see also, see DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 340-341.) Formal acceptance may be accomplished “by ordinance of the city council, accepting in general terms all streets, parks, etc., theretofore offered to the public for dedication.” (City Of Los Angeles v. McCollum (1909) 156 Cal. 148, 151.)
d. Pertinent provisions of Ordinance 47
The “City of Morgan Hill Subdivision Ordinance No. 47” was adopted in September 1952 and amended in December 1979. Section IV of Ordinance 47 governs final subdivision maps.
The specific provision of Ordinance 47 at issue here is section 4.44, which reads as follows: “Approval by City Council. At its first regular meeting following the filing of said map with the City Clerk as aforesaid, or within fifteen days following the filing thereof, the City Council shall consider said map, the plan of subdivision and the offers of dedication. The City Council may reject any and all offers of dedication. If the City Council shall determine that said map is in conformity with the requirements of the Ordinance, that it is satisfied with the plan of subdivision and shall accept all offers of dedication, it shall approve said map and the City Clerk shall thereupon so certify upon said map and transmit the same to the City Engineer. When the subdivider shall have filed with the City Clerk the agreement and bonds, or make the deposit described in Section 6.3 hereof, and when such agreement and bond shall have been approved by the City Attorney as to form and by the City Engineer as to sufficiency, the City Engineer shall present said may [sic] to the County Recorder and thereafter record the same with the County Recorder. It [sic] the City Council shall determine either that said may [sic] is not in conformity with the requirements of this Ordinance or that it is not satisfied with the plan of subdivision, it shall disapprove said map specifying its reason or reasons therefore [sic] and the City Clerk shall in writing advise the subdivider of such disapproval and of the reason or reasons for such disapproval. Within thirty (30) days after the City Council has disapproved any map the subdivider may file with the Planning Commission a map altered to meet the approval of the City Council. In such case the subdivider shall conform to all the requirements imposed upon him by this Ordinance when filing the first final map with the Planning Commission and the same proceedings shall be had thereon as are prescribed by this Ordinance upon the filing of the first final map with the Planning Commission. No map shall have any force or effect until the same has been approved by the City Council and no title to any property described in any offer of dedication shall pass until the City engineer has recorded said map with the County Recorder.”
e. Analysis
The parties dispute (i) whether Ordinance 47 establishes that the City accepted the offer of dedication of the storm drainage easement over plaintiffs’ properties and (ii) the significance of any such acceptance.
(i) Interpretation of Ordinance 47
As reflected in the Berkman briefs, plaintiffs contend that Ordinance 47 “conclusively establishes” that the City accepted dedication by operation of law. Plaintiffs offer two arguments in support of that contention: (1) “the City admitted at trial that no rejection of the dedication occurred, ” and (2) under Ordinance 47, as interpreted in Save El Toro, if the city council had not accepted all offers of dedication, then the city clerk could not have certified the final subdivision map and the county recorder could not have recorded it as they did. (See Save El Toro, supra, 74 Cal.App.3d at p. 69.)
Plaintiffs’ first argument posits that the offer of dedication necessarily was accepted since there is no evidence of rejection. Plaintiffs offer no legal authority to support that argument, nor has our independent research disclosed any. In essence, on the question of the City’s express acceptance of the storm drainage easements over plaintiffs’ properties, “we face an evidentiary void.” (DiMartino v. City of Orinda, supra, 80 Cal.App.4th at p. 340; see id. at p. 338 [no evidence that public entities expressly accepted easements shown on the subdivision maps].)
Addressing plaintiffs’ first argument, the City points to statutory requirements that final subdivision maps reflect acceptance of dedication offers. (See, e.g., Gov. Code, § 66477.1, subd. (a).) The City cites Government Code section 66440, which provides: “The final map shall contain a certificate or statement for execution by the clerk of each approving legislative body stating that the body approved the map and accepted, accepted subject to improvement, or rejected, on behalf of the public, any real property offered for dedication for public use in conformity with the terms of the offer of dedication.”
In reply, plaintiffs contend that “the City’s proposed reading of Govt. Code §66440 leads to an absurd result. The Clerk’s certificate contains no direct statement about whether any dedications were accepted, accepted subject to conditions, or rejected.... Yet by the City’s own admission, the map and certain other offers of dedication were accepted.” Plaintiffs also contend that the clerk’s certification on the final subdivision map demonstrates compliance with Government Code section 66440.
As both parties recognize, however, there is no real tension between the statutory provisions and the local ordinance, since both require certification of the legislative body’s action by the city clerk. Lacking evidence of express acceptance of the developer’s offer of dedication of the storm drainage easements over plaintiffs’ property, we thus turn to an examination of the ordinance itself. As plaintiffs observe, “it is the Ordinance that establishes the procedures and certifications necessary for the City’s acceptance of offers of dedication contained on a final subdivision map.”
This second argument by plaintiffs relies on the terms of Ordinance 47, coupled with the undisputed evidence that the city clerk certified the final subdivision map and that the county recorder recorded it. This argument presents a question of law for our independent review. (County of Madera v. Superior Court (1974) 39 Cal.App.3d 665, 668.)
We begin by observing that the Save El Toro decision does not assist us in the task of interpreting Ordinance 47. The disputed issue in that case was the timeliness of the plaintiff’s challenge to Morgan Hill’s approval of a tentative subdivision map. (Save El Toro, supra, 74 Cal.App.3d at pp. 68, 70.) The Morgan Hill ordinance was discussed in the context of distinguishing a case from Los Angeles, with the court ultimately finding “significant differences between the local law of the City of Los Angeles and that of Morgan Hill.” (Id. at p. 69.) Under the Los Angeles ordinance, the city council’s approval of the final map was “administrative and ministerial.” (Ibid.) Under the Morgan Hill ordinance, by contrast, the decision was discretionary: the city council “need not approve the map unless it is satisfied with the plan of subdivision.” (Id. at p. 70.) Moreover, in describing Morgan Hill’s process for city council approval of final subdivision maps, the Save El Toro court employed language that is effectively identical to the language of the ordinance. (Ibid.; see Ordinance 47, § 4.44.) Nothing in the Save El Toro decision suggests judicial interpretation of that provision.
As plaintiffs themselves recognize, “it is the plain text of the Ordinance itself” that controls. “A basic rule of construction is that courts are bound to give effect to statutes and ordinances according to the usual, ordinary import of the language employed in framing them.” (Baldwin v. City of Los Angeles, supra, 70 Cal.App.4th at p. 838.)
As plaintiffs read Ordinance 47, “the City Clerk could not have certified the final subdivision map, and the County Recorder could not have recorded it, absent the City Council’s agreement to accept all offers of dedication on that specific map.” In pressing their interpretation of Ordinance 47, plaintiffs emphasize this sentence in section 4.44: “If the City Council shall determine that said map is in conformity with the requirements of the Ordinance, that it is satisfied with the plan of subdivision and shall accept all offers of dedication, it shall approve said map and the City Clerk shall thereupon so certify upon said map and transmit the same to the City Engineer.” But plaintiffs effectively ignore the immediately preceding sentence, which reads: “The City Council may reject any or all offers of dedication.” Plaintiffs dismiss that provision in a single sentence, saying: “This is true, but irrelevant.” They take that position based on trial evidence that the City had been unable to locate any evidence of explicit rejection.
Plaintiffs’ interpretation of section 4.44 of Ordinance 47 is unpersuasive.
Under settled principles of statutory construction, we construe the words of the ordinance in context, avoiding any interpretation that would “render a measure unreasonable, disharmonious, or superfluous in whole or in part.” (Longshore v. County of Ventura, supra, 25 Cal.3d at p. 24.) We likewise avoid any interpretation that leads to absurd results. (Day v. City of Fontana (2001) 25 Cal.4th 268, 272; see also Civ. Code, § 3542 [requiring reasonable interpretation].) “Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation.” (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.)
The interpretation urged by plaintiffs violates the principle of statutory construction that requires courts to avoid an interpretation that “renders any language mere surplusage.” (Brewer v. Patel (1993) 20 Cal.App.4th 1017, 1021; Longshore v. County of Ventura, supra, 25 Cal.3d at p. 24.) Plaintiffs’ interpretation treats as superfluous the provision in section 4.44 that permits the City to “reject any or all offers of dedication.” Moreover, plaintiffs’ proffered interpretation would lead to absurd results. Under plaintiffs’ view, once the city council both determined that the final map met the ordinance’s requirements and concluded that it was satisfied with the subdivision, it would lose its discretion to reject offers of dedication. (Cf. Save El Toro, supra, 74 Cal.App.3d at p. 70 [recognizing city council’s to disapprove subdivision if dissatisfied].)
Reading section 4.44 as a whole, the City Council has two options: to approve the final subdivision map or to disapprove it. Reciprocal determinations underlie each option. Approval is predicated on both of these determinations: (1) “that said map is in conformity with the requirements of the Ordinance, ” and (2) that the City Council “is satisfied with the plan of subdivision and shall accept all offers of dedication....” Disapproval is predicated on either of these opposing determinations: (1) that the map “is not in conformity with the requirements of this Ordinance” or (2) that the City Council “is not satisfied with the plan of subdivision....” The portion of section 4.44 concerning disapproval does not mention offers of dedication. Since approval and disapproval are opposite sides of the same coin, the phrase “shall accept all offers of dedication” should not be read as a requirement of approval but rather as a separate procedural step in the event of approval.
In any event, as we now explain, even if we were persuaded by plaintiffs’ interpretation of Ordinance 47, such a conclusion would not change the outcome of this action.
(ii) Impact on this litigation
Plaintiffs repeatedly stress the importance of Ordinance 47 to this case. At one point in the Berkman opening brief, they argue: “The central issue at trial was whether the City accepted the dedication of the drainage easement across plaintiffs’ yards. Almost every legal issue before the trial court was affected by this question and the trial court devoted over half of the statement of decision to explaining its finding that the City did not accept the dedication.” At another point in that brief, plaintiffs contend: “The trial court’s erroneous determination on this issue was the very cornerstone on which the judgment against the plaintiffs rested.”
We disagree with plaintiffs’ assessment, both on the facts and on the law.
On the facts, in a lengthy explanation of its conclusion that the watercourse is not a public work, the trial court discussed four separate factors that informed that conclusion, only one of which was plaintiffs’ failure to prove the City’s acceptance of the dedication. Addressing that single factor, the trial court rejected plaintiffs’ contention that the City had accepted dedication of the storm drainage easement in 1982 by adopting Resolution No. 1752. After discussing the evidence on the point, the trial court quoted footnote 21 of the Locklin decision, saying: “In any event, the [California] Supreme Court has questioned ‘whether requiring and/or accepting drainage easements across private property to a privately owned natural watercourse is evidence of an exercise of control over the watercourse itself.’ (Locklin, supra, 7 Cal.4th at p. 370, fn. 21.)” For these reasons, we reject plaintiffs’ factual assertion that the City’s failure to accept dedication of the easement was central to the trial court’s decision.
On the law, we find footnote 21 compelling. In apparent disagreement, plaintiffs argue: “The trial court misunderstood the meaning of this footnote.” Plaintiffs assert that the facts here “are entirely different” from those in Locklin. “Here, ” they maintain, “the storm drainage easement is over the Ditch itself, not over tributary ditches that drain into the Ditch.” We do not subscribe to plaintiffs’ narrow reading of footnote 21 of the Locklin decision. We acknowledge that owning an easement over a watercourse itself might suggest a greater level of control than owning an easement over lands leading to the watercourse. But as Locklin makes clear, ownership of an easement is only one consideration in determining the public entity’s control. (Locklin, supra, 7 Cal.4th at p. 370 [evidence of various actions by public entities “did not establish an exercise of control”].)
Thus, both on the facts and on the law, we reject plaintiffs’ argument that the outcome of the trial would have been altered by earlier presentation of Ordinance 47.
To sum up, we conclude that the watercourse is not a public work. First, the trial court did not err in finding that the City neither converted the stream into a public work nor incorporated it into the public drainage system. Moreover, Ordinance 47 does not compel a contrary conclusion.
C. The City did not act unreasonably.
Plaintiffs next challenge the trial court’s conclusion that the City acted reasonably. More specifically, plaintiffs take issue with these determinations: (1) plaintiffs failed to demonstrate an overburdening of the easement, and (2) because the City did not fail to use reasonably available, less injurious alternatives, the public benefit of its conduct outweighs the burden on plaintiffs. As to the first challenged determination, plaintiffs argue that the court imposed an impermissibly high standard of proof. As to the second, plaintiffs assert error in the court’s application of the Locklin reasonableness test. (See Locklin, supra, 7 Cal.4th at pp. 337-338, 368-369.)
1. Overburden
a. The trial court’s determination
Rejecting plaintiffs’ contrary arguments below, the trial court found that “plaintiffs have not shown an overburdening of the watercourse by the City.” The court described the evidence, which included both expert and lay testimony. As the trial court viewed the evidence, “there has been minimal increase in the volume or velocity of water in the watershed, and there has been minimal, if any damage to the plaintiffs’ properties caused by the watercourse.”
b. Analysis
In plaintiffs’ view, as argued in the Schneider/Heron opening brief, the trial court held them “to an artificially high standard of proof. The trial court seemed to believe that plaintiffs needed to provide precise measurements of the increase in flow in the Ditch in order to prove the volume of this use.”
(i) Proof standard
In support of their argument that the trial court employed an erroneous proof standard, plaintiffs rely on this court’s decision in CSAA, supra, 138 Cal.App.4th 474. In that case, we concluded that “the trial court applied a higher standard of proof to its claim of inverse condemnation, requiring [proof of] tortious conduct on the part of the City.” (Id. at p. 483.) As we said there, “by requiring CSAA to show ‘how and why’ the blockage occurred, ... the trial court was evaluating whether the City acted reasonably in the operation of its sanitary system or sewer system. However, whether or not the City acted reasonably... is completely irrelevant in determining if the City is liable under a theory of inverse condemnation.” (Ibid.) We recognized that the plaintiff “had the duty to demonstrate the actual cause of the damage to him.” (Id. at p. 484.) But we found that he had done so. (Ibid.) We observed: “In finding the proof of causation insufficient because of a failure to establish the ‘how and why’ of the blockage, the trial court asked for too much. In order to satisfy such a standard of proof, one would have to prove with particularity the actual mechanism of the backup. But our Constitution does not require that.” (Ibid.)
This case is distinguishable from CSAA, both as to the governing legal precepts and as to the trial court’s application of governing law.
Under the legal principles that govern here, and notwithstanding plaintiffs’ contrary insistence at various points in their appellate briefs, the public entity’s reasonableness is a consideration in cases such as this. As Locklin teaches, public entities do not “incur absolute liability for any damage caused by the runoff of surface water from improvements on its property into a natural watercourse or from public improvements constructed in or on a watercourse.” (Locklin, supra, 7 Cal.4th at p. 367.) “The rule of strict liability generally followed in inverse condemnation [citation] is not applicable in this context.” (Ibid.; see Arreola v. County of Monterey, supra, 99 Cal.App.4th at pp. 738-739, 752.) Rather, “because strict liability would discourage construction of needed public improvements which affect surface water drainage, liability exists only if the agency acts unreasonably, with reasonableness determined by balancing the public benefit and private damage in each case.” (Locklin, at p. 368, italics added.)
Our case also differs from CSAA on the question of the trial court’s application of law. In CSAA, the trial court erred by finding “the proof of causation insufficient because of a failure to establish the ‘how and why’ of the blockage, ” because such a standard would require the plaintiff to “prove with particularity the actual mechanism of the backup.” (CSAA, supra, 138 Cal.App.4th at p. 484.) Here, the trial court did not demand proof of the mechanism causing the claimed increase in flow in the watercourse. Rather, relying on testimony from plaintiffs’ neighbors, the court found that there had been “no discernible fluctuation in the flow of the water in the past period of over 20 to 30 years.”
In arguing that the trial court demanded an impermissibly high standard of proof, plaintiffs misinterpret the statement of decision. There, the trial court noted the absence of evidence of any quantifiable increase. It observed that “plaintiffs’ expert, Joseph Countryman, did not conduct any studies to determine the capacity of the watercourse or the volume or velocity of water in the watercourse. Nor did Mr. Countryman conduct any studies to determine what the increase in flow of the creek has been.” Notably, however, the court made that observation in the context of its overall discussion of the evidence pertaining to plaintiffs’ claim of increased volume and velocity of the stream resulting from upslope development.
Read in context, the statement of decision makes clear that the court’s determination concerning overburden was based on the totality of the evidence, not on the imposition of an impermissibly high standard of proof.
(ii) Evidence
As the City observes, plaintiffs’ factual recitation focuses solely on evidence favorable to their contentions. “The rules on appeal render this focus totally inappropriate.” (Marshall v. Department of Water & Power (1990) 219 Cal.App.3d 1124, 1141.) Proffering a one-sided version of the evidence prevents plaintiffs from carrying their burden of demonstrating error on appeal. (State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 750 [challenged decision may find support “in the evidence the appellants ignore”].)
In any event, the record before us supports the trial court’s determination that plaintiffs failed to prove an overburden. (See Goebel v. City of Santa Barbara (2001) 92 Cal.App.4th 549, 556 [deferring to the trial court’s “finding of historical fact” where “substantial evidence” supports it].) As noted above, the record includes testimony from both expert and lay witnesses on this point.
According to plaintiffs’ expert, Countryman, a greater volume of water generally results from upslope development; with “these kind of surfaces that are capturing water, you increase the flows downstream.” Countryman testified that upslope development generally results in greater water velocity as well. Countryman explained that “development will increase the flows because of the impervious areas because of the road and all the development that goes on. This is universal.” Countryman acknowledged that he had not “done any studies or calculations” to determine flow in the watercourse at issue in this litigation. He had not “tried to document the incremental increase” here, but he was “certain” that it had increased. Countryman’s “knowledge of increase of flow” in the subject watercourse was based solely on “generalized knowledge” and on information from the Berkmans.
The City’s expert, Schaaf, testified that there had been an increase in impervious surfaces in the watershed since 1980. As Schaaf confirmed: “Impervious surface increases the amount of runoff on a watershed.” He stated that the increase in impervious surfaces “would have some effect” on the watercourse, particularly with small rain events. With larger rain events, however, the effect would not be as noticeable. As Schaaf explained: “Because the watershed is so steep, and it can only absorb water so fast that the pervious and impervious surfaces would react in approximately the same matter for the intense rainfall events.”
Three of the plaintiffs testified. All three stated that there had been an increase in the volume of the water in the stream over the years.
The court also heard testimony from two of plaintiffs’ neighbors, Paul Daily and Douglas Wright. Neither had observed any significant fluctuations in the volume or height of the water in the stream or in the speed of the water. Those observations were bolstered by the City’s expert, Schaaf.
On cross-examination, Schaaf was asked a hypothetical question, which assumed that “a couple of witnesses upstream of the ditch had not noticed any significant changes in the ditch over the last 20 or 30 years” and which further assumed that “these people were lay witnesses, not engineers..., and that they’ve never taken any measurements.” The question to Schaaf was this: “Would you as a professional engineer accept their view that there had been no significant changes as accurate and reliable?” Schaaf responded: “It probably turns on the word significant. I would say – I would tend to believe that there weren’t any significant changes. But were there no changes. I wouldn’t quite believe that.”
According to Daily’s testimony, his home is located upstream from Heron and across the stream from Wright. He has lived there since 1982. Daily’s principal access to his residence is over a small footbridge. Daily currently uses an aluminum footbridge, which replaced the previous redwood bridge made from the top of a picnic table. There is a clearance of about nine inches between the bottom of the creek bank and the bottom of the bridge. Neither the new aluminum bridge nor the old redwood bridge had ever been washed away by the flow of water in the stream. Daily had “never seen water rise so much as to affect the foot bridge” nor had he seen water cover the bridge or “even touch the aluminum.” Daily was asked: “From your observations has there been any change in the volume of water in this creek since you moved in 1982?” He responded: “I can’t speak to volume but I can speak to the amount of the height of the creek and roughly the shape and size and location of the creek since I moved in.” On that subject, Daily said: “It’s been very consistent in its pattern.” Thus, at both maximum and minimum flow, the “height of water” in the stream had been the same over the years. Daily had not noticed “any change in velocity of the water” since moving there in 1982. Nor had he noticed “any changes in appearance since 1982 of the creek as it flows on the Heron property[.]”
Wright testified that he moved into his home in 1973. Since that time, Wright could not recall ever seeing water go over the top of the footbridge or even reach the bottom of it. Wright was asked: “Have you been able to notice any change in the volume of water during typical storms since 1973 in this creek?” He answered: “Wet winter, lot of water. Light winter, not much.” Wright was then asked: “And that’s been the pattern consistently since 1973?” He answered: “That’s correct.”
In reaching its conclusion that there had been only minimal increases in flow through the stream, the trial court relied on the neighbors’ testimony. The court described Daily and Wright as “the immediate uphill neighbors of the plaintiffs, who have no apparent interest in this lawsuit, and who have more direct experience with the watercourse than either of the parties’ experts, ” and it credited their testimony that “they had detected no discernible fluctuation in the flow of the water” over the past two to three decades. As the exclusive judge of the credibility of the evidence, the court was entitled to credit the neighbors’ testimony and to reject the plaintiffs’ contrary evidence as unworthy of credence. (People v. Jones (1990) 51 Cal.3d 294, 314; Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 833; Ullery v. County of Contra Costa, supra, 202 Cal.App.3d at pp. 572-573.)
Based on its determination that the increase in flow was minimal, the trial court found that plaintiffs had failed to prove an overburden. “That was a question for the trial court and it was resolved against [plaintiffs]. The question for this court to determine is whether the evidence compelled the trial court to find in their favor on that issue.” (Roesch v. De Mota (1944) 24 Cal.2d 563, 571.) Resolving that question on appeal requires an assessment of whether plaintiffs’ evidence was both “uncontradicted and unimpeached” and “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.” (Ibid.) Unless the record discloses evidence that no reasonable trier of fact could have rejected, we must affirm the court’s determination. (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)
In this case, plaintiffs’ evidence does not compel a finding in their favor. The trial court was not persuaded by Countryman’s testimony concerning increased flow, which was based on his “generalized knowledge” rather than measurements or studies concerning the specific watercourse at issue here. (See Locklin, supra, 7 Cal.4th at p. 372 [both trial court and appellate court “concluded that the evidence did not support the opinion of plaintiffs’ experts that the runoff generated by these defendants’ improvements was a substantial cause of plaintiffs’ damage”]; Ullery v. County of Contra Costa, supra, 202 Cal.App.3d at p. 572 [trial court properly credited evidence that “creation of the upstream improvements in the form of catch basins and culverts did not increase the flow of water into the creek”]; Souza v. Silver Development Co., supra, 164 Cal.App.3d at p. 172 [trial court erred in ignoring “undisputed evidence” that “the City’s storm drainage system added only ‘a minimal amount’ of water to the creek”]; cf. Frustuck v. City of Fairfax, supra, 212 Cal.App.2d at p. 360 [trial court made unchallenged finding that upstream development “resulted in an increase in flowage of waters” on plaintiff’s property].)
Nor are we persuaded by plaintiffs’ arguments that the trial court construed the law too narrowly by “failing to consider factors other than the volume of use in determining whether the City had overburdened its easement over the Ditch.” According to plaintiffs, “in addition to evidence about the volume of flow in the Ditch, the record contains evidence that the nature of the City’s use of the Ditch has unreasonably and injuriously enlarged the burden on plaintiffs’ property in numerous ways.” (See Baker v. Pierce (1950) 100 Cal.App.2d 224, 226 [“owner of a dominant tenement must use his easement and rights in such a way as to impose as slight a burden as possible on the servient tenement”].) Plaintiffs assert three bases for this claim: (1) the City’s continued draining of water “in a manner that is harmful to the heritage oak trees within the easement’s boundaries”; (2) the fact that “water begins flowing through the Ditch earlier in the fall and continues later into the spring, ” coupled with “a significant increase over time in the amount of silt and debris deposited onto plaintiffs’ property”; and (3) evidence that “the City’s use of the Ditch caused excessive erosion to plaintiffs’ property.”
Contrary to plaintiffs’ contentions, the trial court did not ignore this evidence. In its discussion of damages, the court noted plaintiffs’ claims for “erosion and deposit of silt in the watercourse, and a potential loss of two oak trees on the Berkman property.” But the court found “no convincing evidence of substantial causation to impose liability on the City for these damages.” (See Ullery v. County of Contra Costa, supra, 202 Cal.App.3d at p. 572 [“substantial evidence supports the trial court’s conclusion that erosion within the creek channel was not a cause of the landslides”].)
In sum, (1) the neighbors’ testimony supports the trial court’s finding that there was only a minimal increase in the flow of the watercourse, (2) plaintiffs’ evidence does not compel a contrary finding, and (3) there is no other basis for disturbing the trial court’s determination that plaintiffs failed to prove an overburden.
2. Reasonableness test
a. Legal precepts
Under Locklin, when public entities are sued for damages from increased flows in watercourses, the question of reasonableness arises in two distinct contexts. (Locklin, supra, 7 Cal.4th at pp. 337-338.) The first concerns tort claims against the public entity as an upstream property owner. (Id. at p. 337.) The second involves inverse condemnation claims. (Id. at pp. 337-338.)
In the tort context, Locklin stated the rule as follows: “The test is whether, under all the circumstances, the upper landowner’s conduct was reasonable. This rule of reasonableness applies to both private and public landowners, but it requires reasonable conduct on the part of downstream owners as well. This test 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.” (Locklin, supra, 7 Cal.4th at p. 337.) The question of reasonableness in this context is a factual inquiry that depends on all of the circumstances of the case. (Id. at p. 359.)
In the context of inverse condemnation, Locklin teaches that a public entity may be liable “for downstream damage caused by an increased volume or velocity of surface waters discharged into a natural watercourse from public works or improvements on publicly owned land. It will be liable if it fails to use reasonably available, less injurious alternatives, or if it has incorporated the watercourse into a public drainage system or otherwise converted the watercourse itself into a public work.” (Locklin, supra, 7 Cal.4th at pp. 337-338.) But such “liability exists only if the agency acts unreasonably, with reasonableness determined by balancing the public benefit and private damage in each case.” (Id. at p. 368.) Locklin identifies six specific factors for assessing reasonableness in this context: “(1) The overall public purpose being served by the improvement project; (2) the degree to which the plaintiff’s loss is offset by reciprocal benefits; (3) the availability to the public entity of feasible alternatives with lower risks; (4) the severity of the plaintiff’s damage in relation to risk-bearing capabilities; (5) the extent to which damage of the kind the plaintiff sustained is generally considered as a normal risk of land ownership; and (6) the degree to which similar damage is distributed at large over other beneficiaries of the project or is peculiar only to the plaintiff.” (Id. at pp. 368-369.) As the Locklin court further observed: “Reasonableness in this context also considers the historic responsibility of riparian owners to protect their property from damage caused by the stream flow and to anticipate upstream development that may increase that flow.” (Id. at p. 369.) “The reasonableness of the public agency’s conduct must be determined on the facts of each case, taking into consideration the public benefit and the private damages in each instance.” (Id. at p. 367.)
b. Trial court’s determination
In its statement of decision, the trial court said this: “In spite of the evidence which demonstrated minimal increase in the velocity or volume of water in the watercourse caused by the development in the watershed, the plaintiffs argue that the City failed to use reasonably available, less injurious alternatives when it approved the Llagas Valley Acres Subdivision in 1977.” In assessing that argument, the court stated: “That there possibly could be other feasible alternatives is less of a factor if the course of action chosen by the City did not overburden the easement that plaintiffs accepted when they purchased their properties.” After discussing plaintiffs’ evidence on the issue of alternatives, the court found that “the public benefit outweighs the burden placed on the plaintiffs.”
c. Analysis
Plaintiffs attack the trial court’s analysis, characterizing it as a flawed application of the Locklin reasonableness test. As plaintiffs observe, Locklin sets forth six factors for assessing reasonableness in the inverse condemnation context. (Locklin, supra, 7 Cal.4th at pp. 368-369; see Paterno v. State (2003) 113 Cal.App.4th 998, 1023-1027 [applying the six factors to the facts as found by the trial court].) First, plaintiffs take the trial court to task for addressing only one of the Locklin factors – the availability of feasible alternatives. “Moreover, ” plaintiffs maintain, “the trial court did not analyze even this one factor correctly.”
We need not reach these contentions. Under Locklin, inverse condemnation liability attaches only where there has been damage from “an increased volume or velocity of surface waters discharged into a natural watercourse from public works or improvements on publicly owned land.” (Locklin, supra, 7 Cal.4th at pp. 337-338, italics added.) Those predicate conditions are not met here. First, as discussed above, the trial court correctly determined that only a minimal increase in flow has been shown. (See Souza v. Silver Development Co., supra, 164 Cal.App.3d at p. 172 [no inverse condemnation liability where increase in flow was minimal].) Second, as also discussed above, the watercourse is not a public work. (See Locklin, at p. 370 [to transform a natural watercourse into a public work, public entity must exercise control over it].) Finally, as the trial court found, plaintiffs failed to prove “that the ‘additional’ runoff was created by the City’s improvements upstream of plaintiffs’ properties.” (See id. at p. 374 [“evidence did not establish that any damage was attributable” to runoff from defendant’s roads].)
In any event, even if we were to address this point on the merits, we would reject the arguments proffered by plaintiffs, both procedural and substantive.
First, we perceive no reversible procedural error. As the California Supreme Court observed in Bunch, although the better practice is for courts to “uniformly” apply the six Locklin factors, and although the Court of Appeal there “did not specifically refer to the six factors Locklin identified for use in assessing liability, ... the trial court adequately assessed the reasonableness of [the defendant’s] measures by using a comparable test.” (Bunch v. Coachella Valley Water Dist. (1997) 15 Cal.4th 432, 454.) A similar situation obtains here. If anything, the trial court took its cue from plaintiffs, who themselves focused solely on the availability of feasible alternatives below, both in their written closing arguments and in their objections to the trial court’s tentative decision. (Compare, Arreola v. County of Monterey, supra, 99 Cal.App.4th at p. 740 [“plaintiffs’ proposed statement of decision referred specifically to the six Locklin factors”].)
Next, were we to review the substantive merits, we would conclude that the evidentiary record supports the trial court’s analysis on the question of feasible alternatives. The court considered plaintiffs’ assertion that the City could have required the developer of the subdivision either “to relocate the watercourse offsite or... to realign the lots so as to avoid the watercourse from flowing through the lots.” In a three-page discussion of the evidence on this point, the court rejected the plaintiffs’ assertion, ultimately concluding that they had “failed to show that there were reasonably available, less injurious alternatives.” The court first addressed the possibility of relocation of the watercourse underground. It found “insufficient evidence to determine whether the recommendation in the Draft EIR, an underground drainage system in place of the watercourse, was reasonably feasible and whether it would be the less injurious course of action.” Addressing the question of expense to underground the watercourse, the court observed that plaintiffs had failed provide evidence of “the cost to the City of acquiring the rights to the private lane, the cost of maintenance which the City would have to bear over the years, and the cost of applying for and receiving permission from the other public entities having jurisdiction over the watercourse, whether it be the Santa Clara Valley Water District or the California Department of Fish and Game.” Without such evidence, the court said, it “was not provided information as to the ultimate cost to the City to relocate the watercourse.” The court next addressed the possibility of realigning lots 12 and 13, as recommended in a 1977 county letter. It found “no sufficient evidence that the realignment of the lots would be a reasonably available, less injurious alternative.”
The trial court thus found that plaintiffs failed to carry their burden of proof on this issue. Plaintiffs’ evidence does not compel a contrary conclusion. (Roesch v. De Mota, supra, 24 Cal.2d at p. 571.) Nor do we agree with plaintiffs that the trial court required them to meet an “impossible standard to satisfy the Locklin reasonableness test.” (Cf. Locklin, supra, 7 Cal.4th at p. 372 [“a plaintiff in inverse condemnation must establish the proportion of damage attributable to the public entity”].)
For all these reasons, plaintiffs’ claims are unavailing.
D. Plaintiffs failed to prove recoverable damages within the statutory period.
1. Statute of limitations
a. The trial court’s determination
As the trial court correctly recognized, “Code of Civil Procedure §338(j) provides a three-year state of limitations for inverse condemnation actions.” “Thus, ” the trial stated, “recovery for any damages sustained more than three years before the filing of this lawsuit is barred. These barred damages would include the damages claimed by plaintiff for the felling of an oak tree on the Heron parcel which occurred in 1999.”
The trial court rejected plaintiffs’ arguments that the statute of limitations was tolled by the statements made to the Berkmans in the 1980s by City employees to the effect that the watercourse was not the City’s responsibility. The court offered two reasons for that determination. “First, ” the court said, “plaintiffs’ argument is necessarily premised on” inaccuracy of the City employees’ statements in the 1980s, a premise that the court had already rejected. “In any event, ” the court continued, “the position taken by City employees that the maintenance of the watercourse was not the City’s responsibility, even if later proved incorrect, cannot be used to toll the statute of limitations.”
b. Analysis
Plaintiffs challenge the trial court’s ruling on two grounds. First, they say, “where the ‘taking’ occurs over time... the cause of action for inverse condemnation does not accrue” until the property damage “has stabilized – an event that has not yet occurred in this case. Second, under the doctrine of equitable estoppel, the City’s factually inaccurate statements in the 1980s that it did not own the easement over plaintiffs’ land estops the City from asserting the statute of limitations in this case.”
Plaintiffs’ arguments are unavailing. As exhaustively explained above, the watercourse is not a public improvement and there has been no “taking” by the City. That conclusion dooms both of plaintiffs’ arguments. Additionally, plaintiffs’ first argument is not cognizable on appeal, since it was not raised below. (See, e.g., In re Marriage of Freeman (1996) 45 Cal.App.4th 1437, 1450-1451.) And plaintiffs’ second argument lacks merit because the factual premise on which it rests has been rejected.
2. Damages
a. Legal precepts
To support damages in an inverse condemnation action, the public entity’s unreasonable conduct must be a substantial cause of injury. (Locklin, supra, 7 Cal.4th at p. 373; CSAA, supra, 138 Cal.App.4th at pp. 480-481.) That requires a “causal connection between conduct on the part of the defendant public entity and the plaintiff landowner’s damage.” (Souza v. Silver Development Co., supra, 164 Cal.App.3d at p. 171.) Where the claim against the public entity is based on “the additional surface water runoff created by its improvements, i.e., paved streets and other public areas, or the manner in which it collected and discharged surface water runoff” into a natural creek, that conduct must be “both unreasonable and a substantial cause of the damage to plaintiffs’ property.” (Locklin, at p. 373.)
b. The trial court’s determination
The trial court found that plaintiffs had “not shown either physical damage to their properties or that the ‘additional’ runoff was created by the City’s improvements upstream of plaintiffs’ properties.” The court noted the testimony of plaintiffs’ expert that “he did not notice any damage on the Schneider property or on the Berkman property that was caused by the watercourse. As to the Heron property, aside from dislodgement of the posts holding the fence up, Mr. Countryman could only articulate the existence of the watercourse itself as damage.” The court concluded: “At bottom, plaintiffs’ principal claim for damages is the diminution in property value due to the existence of the watercourse on their properties. However, plaintiffs bought their respective properties with full knowledge of and subject to the easement, and thus cannot claim that the existence of the easement damages their properties and constitutes a ‘taking’ by the City.” Addressing plaintiffs’ “remaining complaint of damages that survives the statute of limitation” – erosion, the deposit of silt, and a potential loss of trees – the court found “no convincing evidence of substantial causation to impose liability on the City for these damages.”
c. Analysis
According to plaintiffs, the trial court erred in concluding that they had not shown compensable damage. Plaintiffs argue: (a) uncontroverted evidence establishes a diminution in their property value resulting from the overburdening of the easement; (b) physical damage to their property is not a prerequisite to compensation; (c) damages attributable to the overburdening are compensable; and (d) mitigation expenses are compensable.
We need not reach these contentions. For inverse condemnation liability to attach, the public entity’s conduct must be “both unreasonable and a substantial cause of the damage to plaintiffs’ property.” (Locklin, supra, 7 Cal.4th at p. 373, italics added.) As explained above, unreasonableness has not been shown. For that reason, we need not and do not reach plaintiffs’ arguments concerning damages. (See Cantu v. Pacific Gas & Electric Co. (1987) 189 Cal.App.3d 160, 166 [where “trial court erred in finding” inverse condemnation liability, “there is no need for a retrial on the issue of damages”].)
In any event, even if we were to address this point on the merits, we would uphold the trial court’s determination that proof of causation was lacking. In that regard, our case is similar to Souza v. Silver Development Co., supra, 164 Cal.App.3d 165. As the court said there: “Plaintiffs cite no case in which a public entity has been held liable in inverse condemnation even though its public improvement had no effect on the flow of water in a natural watercourse.” (Id. at p. 172.) As in Souza, plaintiffs’ causation argument here “ignores... evidence that... the City’s storm drainage system added only ‘a minimal amount’ of water to the creek.” (Ibid.) “Moreover, there was no evidence that this minimal addition caused the erosion which led to” plaintiffs’ claims. (Ibid.)
For all of these reasons, we affirm the trial court’s determination that plaintiffs failed to establish a basis for the recovery of damages.
Plaintiffs’ Remaining Claims
In addition to their inverse condemnation claims, plaintiffs sued in tort for both trespass and nuisance. They also sought declaratory and injunctive relief.
I. Legal Principles
An action for trespass will lie for “an ‘unauthorized entry’ onto the land of another.” (Civic Western Corp. v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 16.) Overburdening an easement may constitute trespass. (Keeler v. Haky (1958) 160 Cal.App.2d 471, 479.) But “intangible intrusions, such as noise, odor, or light alone, are dealt with as nuisance cases, not trespass.” (Wilson v. Interlake Steel Co. (1982) 32 Cal.3d 229, 233; accord, San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 936.)
A nuisance action “may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened” by the nuisance. (Code Civ. Proc., § 731.) A nuisance is statutorily defined as anything “injurious to health” or “indecent, or offensive to the senses, or an obstruction to the free use of property” that interferes “with the comfortable enjoyment of life or property.” (Civ. Code, § 3479; see Los Angeles Brick & Clay Products Co. v. City of Los Angeles (1943) 60 Cal.App.2d 478, 489 [“nuisance created by the discharge of the accumulated waters onto plaintiff’s land”].)
II. Application
A. The City is not liable in tort.
In an analysis covering three pages of its statement of decision, the trial court rejected the plaintiffs’ claims for trespass and nuisance.
Plaintiffs’ appellate arguments for reversal of this ruling appear in two short paragraphs, one at the end of the 50-page opening brief filed by the Berkmans and the other at the end of their reply brief. After citing one case that addresses trespass, and another that addresses nuisance, plaintiffs make this one-sentence argument in their opening brief: “The trial court’s ruling disposing of plaintiffs’ trespass and nuisance causes of action were [sic] also erroneous and should be reversed.” Plaintiffs’ reply brief adds no further analysis, except to urge that the trial court’s determination was “based on the erroneous conclusion that the City did not accept the dedication of the Easement.”
Plaintiffs’ failure “to make a coherent argument” in support of their claims “constitutes a waiver of the issue on appeal.” (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007.)
Even if they were not forfeited, plaintiffs’ tort claims have no independent vitality. They are “merely a clone of the first cause of action using a different label.” (El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.) For that reason, they fall with the inverse condemnation cause of action. (Ibid.) The same insufficient evidence that dooms plaintiffs’ inverse condemnation claims also prevents their recovery in tort. (Locklin, supra, 7 Cal.4th at p. 374.)
B. There is no basis for declaratory relief in plaintiffs’ favor.
The trial court denied the plaintiffs’ request for declaratory relief.
As with their tort claims, plaintiffs have forfeited their claim that the trial court erred in refusing declaratory relief by failing to provide cogent argument on the point. (Berger v. California Ins. Guarantee Assn., supra, 128 Cal.App.4th at p. 1007.)
Even if plaintiffs’ claim were not forfeited, there is no basis for disturbing the trial court’s ruling. The cause of action for declaratory relief action relies entirely on plaintiffs’ inverse condemnation claims. “The action is not, therefore, declaratory in character, but in fact presents essentially the same issues which would be involved upon a determination” of plaintiffs’ other causes of action. (Standard Brands of California v. Bryce (1934) 1 Cal.2d 718, 721; C.J.L. Construction, Inc. v. Universal Plumbing (1993) 18 Cal.App.4th 376, 390-391.)
C. There is no basis for injunctive relief in plaintiffs’ favor.
According to plaintiffs, “the trial court had authority to issue an injunction directing the City to discontinue running its public storm drain system through plaintiffs’ yards.” (See, e.g., Sheffet v. County of Los Angeles (1970) 3 Cal.App.3d 720, 737 [“prohibitory injunction should be granted” when “no other relief is adequate”].) Plaintiffs seek remand to the trial court with directions to issue such an injunction.
Given our determination that the City is not liable to plaintiffs – either in tort or in inverse condemnation – injunctive relief is not available.
Plaintiffs’ Appeal: Summary of Conclusions
I. There is no basis for inverse condemnation liability. (A) The trial court properly concluded that the stream at issue in this case is a natural watercourse. (B) As the trial court properly determined, the City neither converted the stream into a public work nor incorporated it into the public drainage system. Ordinance 47 does not compel a contrary conclusion. (C) In finding insufficient proof of overburden, the trial court did not impose an erroneous standard of proof, and the evidence supports the finding. Plaintiffs’ attack on the court’s reasonableness analysis is unavailing. (D) The trial court correctly determined that plaintiffs failed to show recoverable damages.
II. There is no basis either for imposing tort liability on the City or for granting declaratory or injunctive relief to the plaintiffs.
THE CITY’S CROSS-APPEAL
The trial court entered a defense judgment on the City’s cross-complaint against Rasmussen for equitable indemnity and third-party tort. Concerning the equitable indemnity claims, the court found that the City had not carried its burden of proving Rasmussen’s negligence. Concerning the third-party tort claim, the court found that the City had not carried its burden of proving that it suffered any damages as a result of Rasmussen’s conduct. The City challenges both of those determinations in this court.
I. Legal Principles
The doctrine of equitable indemnity is recognized in California. (City of Huntington Beach v. City of Westminster (1997) 57 Cal.App.4th 220, 224.) “Rather than recognizing different forms of equitable indemnity, California has but a single comparative indemnity doctrine ‘which permits partial indemnification on a comparative fault basis in appropriate cases.’ ” (Ibid., quoting Far West Financial Corp. v. D & S Co. (1988) 46 Cal.3d 796, 808.) “Comparative equitable indemnity includes the entire range of possible apportionments-from no indemnity to total indemnity.” (City of Huntington Beach v. City of Westminster, at p. 224.) “At the heart of the doctrine is apportionment based on fault.” (Ibid.)
The third-party tort doctrine – also called the “tort of another” doctrine – permits a party to recover “attorney fees if he is required to employ counsel to prosecute or defend an action against a third party because of the tort of the defendant.” (Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 505, citing Prentice v. North Amer. Title Guar. Corp. (1963) 59 Cal.2d 618, 620-621.)
In the context of this case, both theories are predicated on Rasmussen’s negligence. To establish negligence, the party seeking relief must prove duty, breach, causation, and damages. (Artiglio v. Corning, Inc. (1998) 18 Cal.4th 604, 614.) To establish professional negligence, the party seeking relief must show that the defendant’s work breached the standard of care. (Budd v. Nixen (1971) 6 Cal.3d 195, 200.) In some cases, expert testimony may be required to make that showing. (Easton v. Strassburger (1984) 152 Cal.App.3d 90, 106.)
II. Application
A. The City failed to prove that Rasmussen breached the standard of care.
In explaining its determination that the City had not carried its burden of proving Rasmussen’s negligence, the trial court noted the testimony of both parties’ experts that Rasmussen had used undersized landscaping rocks in the streambed. But the court also commented on the absence of any testimony “that a gardener/landscaper such as Mr. Rasmussen would have or should have known that the rocks used in the Ditch were too small to withstand an unusually heavy rain storm” like the one in December 2002 that washed the rocks away.
The City assigns the court’s comments as error. In its view, “separate testimony on this question is not required.” Discussing the evidence, the City states that “Mr. Rasmussen admitted that he did not have any prior experience purchasing river rock for a seasonal creek, and that he also did not ask the advice of any expert, consult with any publication, or talk to anyone at the City of Morgan Hill. As Mr. Rasmussen testified, he simply assumed that the rocks would stay in place. The evidence showed that the waters in the seasonal creek washed the rocks downstream.” According to the City: “This is negligence by definition.”
By way of response, Rasmussen accuses the City of attempting to change the factual theory of the pleadings on appeal. Rasmussen maintains that plaintiffs never sought to recover for loss of the landscaping rocks or damage to other streambed improvements. Moreover, Rasmussen contends: “Even if plaintiffs had sought recovery against the City” for such damages, the City’s claims would not “be viable.” In his words: “The only way for equitable indemnity to apply in this case would be if Mr. Rasmussen’s improvements caused or contributed to the damage that the City’s Ditch is causing to plaintiffs’ land – in other words, if the City’s original factual theory (for which it had no evidence) had been viable.”
In reply, the City disputes Rasmussen’s claim that it is presenting a new theory on appeal. The City also argues that the evidence at trial establishes Rasmussen’s negligence.
We find no basis for reversing the challenged determination.
First, to the extent that the trial court rested its decision on the absence of expert testimony on the standard of care applicable to Rasmussen, the City has not demonstrated error. In medical malpractice cases, expert testimony on the standard of care generally is required. (Landeros v. Flood (1976)17 Cal.3d 399, 410.) In other types of cases, expert testimony may or may not be needed “to establish the standard of care in the industry or [a party’s] breach of that standard.” (Easton v. Strassburger, supra, 152 Cal.App.3d at p. 106.) The basic “purpose of expert testimony” is “to provide an opinion beyond common experience” of laypersons. (People v. Chapple (2006) 138 Cal.App.4th 540, 547.) Here, the trial court evidently believed that such testimony would have been helpful in its role as fact-finder.
Furthermore, the trial court’s comments concerning standard of care must be read in the context of its broader negligence ruling. As the court noted, the selection and placement of the landscaping rocks was only “a small part” of Rasmussen’s work on the creek, and Rasmussen’s overall “work in the watercourse increased its capacity and reduced future erosion.” The court also quoted testimony – which it characterized as “uncontradicted” – that Rasmussen’s work “was ‘standard practice for bank protection when you are trying to deal with erosion of the channel.’ ”
Finally, we reject the City’s assertion that Rasmussen’s conduct was “negligence by definition.” Legally, the City offers no argument or authority to support that assertion. Factually, the trial court found to the contrary, saying “the City has not met its burden of proof with regard to Mr. Rasmussen’s negligence.” This record does not compel a contrary conclusion. (Roesch v. De Mota, supra, 24 Cal.2d at p. 571.) The City thus provides no basis for disturbing the judgment against it on its equitable indemnity claims.
B. The City failed to prove that Rasmussen caused damages.
Discussing its conclusion that the City had not proved that it suffered damages as a result of Rasmussen’s conduct, the trial court noted that “the City’s own expert testified that Mr. Rasmussen’s work did not cause any damage to either the upslope property owned by Mr. Heron or the downslope property owned by Mr. and Mrs. Schneider.” Furthermore, the court stated, it was “not convinced that, even if Mr. Rasmussen was negligent, that his negligent conduct resulted in the City having to defend itself in the action brought by plaintiffs, particularly in light of the court’s view that plaintiffs’ grievance essentially was about the existence of the watercourse itself in their backyards.”
In the City’s view, the court erred in finding insufficient proof of causation. According to the City, it sued Rasmussen based on the Berkmans’ complaints, which did not start until Rasmussen began working on the streambed. The City asserts: “If the Berkmans are claiming damage for increased maintenance caused by Mr. Rasmussen’s negligent work, then the City is entitled to total or partial equitable indemnity if that work was done negligently.” On its third-party tort theory, the City seeks reversal of the defense judgment on the cross-complaint and an award of attorney’s fees in its favor.
The City is not entitled to recovery under either theory, as both depend on Rasmussen’s negligence. First, there is no basis for equitable indemnity. “At the heart of the doctrine is apportionment based on fault.” (City of Huntington Beach v. City of Westminster, supra, 57 Cal.App.4th at p. 224.) In this case, the City failed to prove fault on Rasmussen’s part, and the trial court found no fault on the City’s part. Thus, there is no factual predicate for the equitable indemnity doctrine. Second, the City’s third-party tort claim likewise depends on a finding of negligence by Rasmussen. (See Prentice v. North Amer. Title Guar. Corp., supra, 59 Cal.2d at p. 621 [“the natural and proximate consequence of defendant’s negligence was to require plaintiffs to file an action”].) Because the trial court made no such finding, there is no factual predicate for the third-party tort doctrine.
The City’s Appeal: Summary of Conclusions
As the trial court properly determined, the City failed to prove negligence on Rasmussen’s part, and the City’s claims for equitable indemnity and recovery on a third-party tort theory therefore fail.
DISPOSITION
In plaintiffs’ appeal, we affirm the judgment of April 23, 2007, which ordered that plaintiffs take nothing on their complaint. In the City’s appeal, we affirm the judgment of April 23, 2007, which ordered that the City take nothing on its cross-complaint. The parties shall bear their own costs on appeal.
WE CONCUR: Mihara, Acting P.J., Duffy, J.
In their appeal, plaintiffs filed two opening briefs and two reply briefs, dividing their collective arguments while joining the arguments in the other plaintiffs’ briefs. Plaintiffs took this approach without first seeking the permission of this court to do so, and despite the fact that all of the plaintiffs are represented by the same counsel on appeal, as they were below. Taken together, plaintiffs’ two opening briefs exceed the limit for a single brief by nearly 10, 000 words.
Based on the combined size of plaintiffs’ opening briefs, the City sought and obtained permission to file an oversized response brief. The City then filed a combined brief, which contains its arguments both as respondent and as cross-appellant. Represented by the same counsel as plaintiffs, Rasmussen filed a cross-respondent’s brief, to which the City replied.
We reject that characterization for several reasons.
First, Schneider and Heron quoted the Locklin definition in their opening brief without comment or qualification. In doing so, they effectively adopted that definition, thereby abandoning their argument below that it was dictum. Furthermore, as a matter of appellate procedure, we generally do not consider points first raised in an appellant’s reply brief. (See, e.g., Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10.)
Second, and more to the point, the Locklin definition relies on established precedent, including San Gabriel V.C. Club v. Los Angeles (1920) 182 Cal. 392, 397. (Locklin, supra, 7 Cal.4th at p. 345.)
Finally, even if we accepted plaintiffs’ characterization of the Locklin definition as dictum, “the dicta of our Supreme Court are highly persuasive.” (Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321, 328.)
In sum, plaintiffs offer no valid reason for rejecting the Locklin definition of a natural watercourse. We therefore employ it here.