Opinion
D069497
09-18-2017
JERRY PREECE, JR., et al., Plaintiffs and Respondent, v. IMPERIAL IRRIGATION DISTRICT, Defendant and Appellant.
Sutherland & Gerber and Lowell F. Sutherland for Plaintiff and Respondent. Martin N. Buchanan, Dennis L. Shields, Sandler, Lasry, Laube, Byer & Valdez LLP and Thomas R. Laube for Defendant and Appellant.
ORDER DENYING REHEARING AND MODIFYING OPINION CHANGE IN JUDGMENT THE COURT:
The petitions for rehearing filed on October 3, 2017, are denied.
It is ordered that the opinion filed herein on September 18, 2017, be modified as follows:
1. On page 1, the party designations for Plaintiffs on the caption should be changed from Plaintiffs and Respondent to Plaintiffs and Appellants.
2. Also on page 1, the counsel listing should be deleted and replaced with the following:
Sutherland & Gerber and Lowell F. Sutherland for Plaintiffs and Appellants.
Law Office of Martin N. Buchanan and Martin N. Buchanan; Law Offices of Dennis L. Shields and Dennis L. Shields; Sandler, Lasry, Laube, Byer & Valdez and Thomas R. Laube, for Defendant and Appellant.
Best & Krieger, James B. Gilpin and Whitney R. Blackhurst for Coachella Valley Water District as Amicus Curiae on behalf of Defendant and Appellant.
3. Also on page 1, "Reversed" should be deleted and replaced with "Reversed and remanded with directions."
4. On page 27, the disposition is modified to read as follows:
The judgment and the trial court's award of costs, fees, and prejudgment interest to Preece is reversed. The trial court is directed to enter judgment in favor of the District. The District is entitled to costs on appeal.
This order changes the judgment. (Cal. Rules of Court, rule 8.2643(c)(2).)
/s/_________
BENKE, Acting P. J. Copies to: All parties
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. ECU07824) APPEALS from a judgment of the Superior Court of Imperial County, Brooks L. Anderholt, Judge. Reversed. Sutherland & Gerber and Lowell F. Sutherland for Plaintiff and Respondent. Martin N. Buchanan, Dennis L. Shields, Sandler, Lasry, Laube, Byer & Valdez LLP and Thomas R. Laube for Defendant and Appellant.
This case involves flood damage after a heavy rainstorm to property owned by Jerry Preece, Jr. and his corporation, J.R. Preece, Inc. (together, Preece), in Imperial Valley. Preece sued the Imperial Irrigation District (District) and the State of California (State) for dangerous condition of public property, nuisance, and inverse condemnation. A jury found the District not liable for dangerous condition of public property and nuisance. However, after the jury's verdicts, the trial court found the District liable for inverse condemnation and entered judgment against the District in the amount of $916,000, concluding the District was 50 percent at fault for Preece's damages. The trial court also awarded Preece attorney's fees, costs, and prejudgment interest.
In the middle of trial, the State entered into a monetary settlement with Preece in the amount of $350,000. Accordingly, the State is not a party to this appeal.
The District appeals, contending it should not be liable on an inverse condemnation theory because its facilities were not a substantial cause of the flooding on Preece's property and the trial court erred by holding the District liable based on the District's failure to upgrade its facilities to provide greater flood protection. The District also argues no substantial evidence supports the trial court's finding that the District's conduct was unreasonable, the trial court's factual findings contradict the jury's findings, and the court's award of costs, fees, and prejudgment interest should be reversed along with the underlying judgment.
Preece cross-appeals, arguing the trial court erred by apportioning liability equally between the District and the State. Preece contends the trial court should have held the District and the State jointly and severally liable for his total damages in the amount of $1,832,000 and given the District an offset for the State's $350,000 settlement.
We conclude there is no basis for inverse condemnation liability because the District's conduct was not a substantial cause of Preece's harm. Accordingly, we reverse the judgment and the trial court's related award of costs, fees, and prejudgment interest to Preece. Based on our conclusion, we need not consider the District's remaining arguments and Preece's cross-appeal.
FACTUAL AND PROCEDURAL BACKGROUND
The District's Irrigation System
The District is a public irrigation district serving the County of Imperial. The District's irrigation system has been in place since the early 1900s. The system provides irrigation water to approximately 479,000 acres of farmland and provides water to cities in the Imperial Valley. The District has 220 miles of main canals that feed into 1,440 miles of lateral canals. The canals transport water from the Colorado River to farms in the Imperial Valley. The District also has a drain system to dispose of excess agricultural irrigation water. There is no flood control district in the Imperial Valley.
The Westside Main is one of the District's main canals. It is a 45-mile long canal running northwest along the western edge of the District's irrigation system. The Foxglove Canal, which is a lateral canal, and Dixie Drain No. 4 are immediately east of the Westside Main and run parallel to it. Preece owns and leases alfalfa fields east of Dixie Drain No. 4.
There are approximately 30 desert washes in the Imperial Valley. When rain falls on the watersheds that surround the developed part of the valley, the runoff is conveyed by alluvial fan washes. The Yuha Wash, an alluvial fan wash in the southwest region of the Imperial Valley west of the Westside Main, drains an area of approximately 34 square miles. The Bureau of Land Management owns the Yuha Wash property.
The Westside Main intersects the Yuha Wash before the wash reaches Preece's fields. Water from the Yuha Wash empties into the Westside Main, which diverts the water and carries it away from Preece's fields. The Westside Main generally operates at a water level of 1,200 cubic feet per second for irrigation purposes, but the canal has a maximum capacity of 3,750 cubic feet per second. Thus, the Westside Main can accommodate additional flow capacities and, in most rainstorm events, it contains flood waters from the Yuha Wash before the waters reach Preece's property.
Around 2001, the District built a concrete apron to protect the west bank of the Westside Main where it meets the Yuha Wash. The concrete apron prevents erosion of the earthen bank caused by rainwater where the Yuha Wash meets the Westside Main. The west bank also has a 72-inch pipe for rainwater from the Yuha Wash to enter the Westside Main.
The District has an emergency preparedness plan to address emergency situations, such as earthquakes, floods, and storms. Under the plan, during a storm, District employees observe water coming in from desert washes, including the Yuha Wash, to determine if they should drop water levels in the canals to make room for the storm waters. The District's employees estimate the amount of water expected to come into the District's canals from the washes and how fast it will reach the canals. The employees then communicate with the District's water headquarters so that watermasters can drop the canals to accommodate storm waters.
Interstate 8
In the late 1960s, the State constructed Interstate 8 running east and west through Imperial Valley. The Interstate 8 crosses the Westside Main. Thus, the State built a bridge for the interstate to pass over the Westside Main north of the Yuha Wash. The State also entered into a utilities agreement with the District to underground the District's irrigation and drainage facilities to run underneath the Interstate 8. The State provided specifications for the canals and drain crossings. Where Dixie Drain No. 4 reaches the Interstate 8, a siphon runs underneath the interstate. The utilities agreement provided that the State would inspect the District's work for compliance with State highway requirements. Further, under the agreement, the parties agreed that the "cost to the STATE shall not include any betterment or increase in capacity of the [District's] facilities."
Flooding Reports
In 1989, the U.S. Army Corps of Engineers prepared a report for the purpose of determining whether flood control measures were warranted in the Imperial Valley. As part of its study, the Army Corps of Engineers evaluated flows from the Yuha Wash. The report noted that "[d]uring past severe storm events, Yuha Wash overflowed the Westside Main Canal and broke the banks causing serious flooding and damage to adjacent farmland properties and [District] facilities, including portions of the Forgetmenot Drain System and the Dixie Drain system. The interstate (I-8) was flooded and had to be closed."
The Army Corps of Engineers analyzed various flood protection measures, including detention, channelization, and diversion of flood flows. It considered the possibility of constructing a berm and retention basin west of the Westside Main. It also evaluated upsizing the District's culverts and siphons to handle major flash flood flows. However, the Army Corps of Engineers concluded that the cost of upsizing measures exceeded their benefits. Further, the report stated, "[t]he costs of [detention, channelization, and diversion of flood flow measures] were found to exceed the benefits the measures would provide. The costs of flood control measures in this area are extremely high due to the large aerial extent of flooding, and due to the nature of alluvial fan washes, which tend to change direction over time, and require extensive flood control works to ensure adequate control of flood flows. The benefits are not as high as the costs, primarily because of the infrequent occurrence of major flooding in this area and the relative scarcity of urban development."
The Army Corps of Engineers determined the peak flow from the Yuha Wash would be 5,800 cubic feet per second in a 50-year storm, 11,000 cubic feet per second in a 100-year storm, and 18,000 cubic feet per second in a 200-year storm. These storms would overflow the Westside Main because its "brimful capacity" is 3,750 cubic feet per second. According to the Army Corps of Engineers, the Yuha Wash would flood 1,420 acres in a 50-year storm, 1,680 acres in a 100-year storm, and 1,940 acres in a flood that might be expected from the most severe combination of meteorological and hydrological conditions.
In 1996, the District commissioned a study by a private engineering firm, Black & Veatch, of flooding in the Imperial Valley. The Black & Veatch report concluded that the peak flow of the Yuha Wash in a 100-year storm would be 7,130 cubic feet per second. Black & Veatch determined that the cost of upsizing the District's drains, siphons, and culverts, including at the Interstate 8 crossing, to protect farmland to just a two-year storm standard was $487,000,000. In order to fund that project, the District would have had to raise rates or borrow money. Due to the cost, the District decided not to proceed with upsizing.
Preece's Property
Preece farms alfalfa on land he owns and leases east of the Westside Main and immediately north and south of Interstate 8. He has hay barns on property just south of Interstate 8. The District's irrigation system serves Preece's fields, which are in a historical floodplain. Before the Westside Main was built in 1909, the Yuha Wash continued through Preece's fields.
Storm Floods Preece's Property
On the afternoon of July 30, 2012, a heavy rainstorm hit the west side of the Imperial Valley in the area of the Yuha Wash. The District's employees monitored the storm and went to the Westside Main to observe the water flowing in from the Yuha Wash. A District employee estimated that water from the Yuha Wash was entering the Westside Main at a rate of 900 cubic feet per second. The District's canals and drains were accommodating the storm waters without problems. Around 4:00 or 5:00 p.m., the District opened spill gates and started to drop the water level in the Westside Main. It would take approximately one to two hours for the gate opening to effect the area of the concrete apron. However, late in the afternoon or early evening, the rainfall increased dramatically in a short period of time.
A large surge of water from the Yuha Wash hit the Westside Main in a matter of minutes and the water level rose very quickly. The water flowed at a rate of approximately 2,000 cubic feet per second. By the time the surge hit, the District had lowered the water in the Westside Main approximately six inches. As a result of the surge, water overtopped the concrete apron of the Westside Main, filled the Westside Main, and then overtopped and filled the Foxglove Canal and Dixie Drain No. 4. During the storm, the Yuha Wash produced a peak flow into the Westside Main between 9,100 and 11,000 cubic feet per second.
After the waters from the Yuha Wash flooded the Westside Main, Foxglove Canal, and Dixie Drain No. 4, the waters continued across Preece's fields. The water ponded against Interstate 8 and began rising. Later in the evening, the water flooded across Interstate 8. Many of Preece's fields were filled with several feet of standing water, including the area with his hay barns. The area looked like a lake.
The flood waters deposited silt from the desert onto Preece's fields, making portions of it not useable for farming. Further, the hay in Preece's barns absorbed standing water, causing the hay to mold and making it worthless. The flooding also damaged Preece's ditches. According to Preece's damages expert, Preece suffered approximately $1.9 million in damages from lost profits due to lost crops, lost sales from damaged hay, and costs to repair the hay barns, ditches, and fields.
Hydrology Experts
Preece's hydrology expert, Bernard Luther, testified that the siphons where the District's drains pass underneath Interstate 8 did not comply with the State's Highway Design Manual because they were too small to handle flood waters. The Highway Design Manual includes specifications for the size of cross-drainage structures, which are used to convey the flow of water from one side of a roadway to the other. Luther also testified that the State should have extended the bridge over the Westside Main and constructed an elevated causeway over 600 feet long, or installed 50 four-and-a-half foot culverts under the interstate to carry flood flows away. Had the extended bridge or 50 culverts been in place, the water from the July 2012 storm would have flowed across Preece's property without resulting in significant damage. Similarly, if Interstate 8 did not exist, the water would have continued across Preece's fields without causing much damage. The State's Highway Design Manual provides that bridges should be designed for a 100-year storm and culverts should be designed for a 50-year storm.
According to Luther, instituting the District's emergency preparedness plan and dropping the water levels in the canals mitigates the risk of damage to neighboring properties. However, even if the Westside Main was completely empty, it would not have prevented all of the damage from the July 2012 storm because the canal could not have intercepted all of the water coming in from the Yuha Wash. Luther recognized that the District's canals and drains absorbed some of the water that would have flooded Preece's fields. The District's hydrology expert, Bruce Phillips, agreed with Luther that the District's irrigation system actually reduced the amount of flooding on Preece's property. Phillips opined that the July 2012 storm was approximately a 46-year storm event.
Luther testified that if he had advised Preece about the Yuha Wash prior to the July 2012 storm, Luther would have recommended that Preece build a dirt berm along the east side of Dixie Drain No. 4 running the entire length of Preece's farm. The berm would have forced the water to run north and under the Interstate 8 bridge over the Westside Main.
A hydraulics department branch chief for the State, Tim Brownson, testified that the State's Highway Design Manual does not apply to the District because the District's canals are irrigation canals, not storm drain facilities. According to Brownson, under the State's Highway Design Manual, the State has an obligation to design highways in a manner to allow waters to pass from one side of a highway to the other without "objectionable backwater." Thus, if sufficient water flows in from the Yuha Wash such that it crosses over the Westside Main, Foxglove Canal, and Dixie Drain No. 4, and then proceeds to the Interstate 8, the State has an obligation to design the highway in such a way to pass those flows without objectionable backwater.
Trial Court Proceedings
Preece sued the District and the State for dangerous condition of public property, nuisance, and inverse condemnation. Preece settled with the State after resting his case in the liability phase of the trial. Thereafter, the District sought to preclude Preece from arguing that as a result of the inadequate size of siphons and culverts passing under Interstate 8, the District was responsible for the "dam" effect created by the interstate and the ponding that resulted on Preece's property. The District argued that throughout the litigation and trial, Preece had asserted the State was solely responsible for the ponding against Interstate 8 and allegedly inadequate size of the culverts and siphons; thus, the District contended Preece was precluded from asserting this new theory against the District.
At the hearing on the issue, the trial court noted that based on the complaint, opening statements, and witness testimony, the State had determined the size of the siphons and culverts underneath the interstate and that issue related to the State only. Thus, the trial court granted the District's request to prohibit Preece from "arguing that the interstate damming effect was due to the District's siphons and drains and culverts under the freeway because that was the decision of the State of California and the District had no control over that."
At the conclusion of the trial, the jury found in favor of the District on Preece's claims for dangerous condition of public property and nuisance based on the District's affirmative defense of reasonable conduct under Government Code section 835.4. Specifically, on the dangerous condition claim, the jury initially found the intersection of the Yuha Wash and Westside Main was a dangerous condition that was a substantial factor in causing harm to Preece, the dangerous condition created a reasonably foreseeable risk that the type of incident Preece alleged would occur, and, although the dangerous condition was not caused by the negligence of a District employee, the District had notice of the dangerous condition for a long enough time to protect against it. Despite these findings, the jury found the District's failure to protect against the risk of injury was reasonable considering the likelihood and seriousness of potential injury compared with how much time and opportunity the District had to take action and the practicality and cost of protecting against the risk of injury. Lastly, the jury found Preece did not take reasonable precautions to avoid or reduce any potential injury to his property.
Government Code section 835.4 provides: "(a) A public entity is not liable . . . for injury caused by a condition of its property if the public entity establishes that the act or omission that created the condition was reasonable. The reasonableness of the act or omission that created the condition shall be determined by weighing the probability and gravity of potential injury to persons and property foreseeably exposed to the risk of injury against the practicability and cost of taking alternative action that would not create the risk of injury or of protecting against the risk of injury. [¶] (b) A public entity is not liable . . . for injury caused by a dangerous condition of its property if the public entity establishes that the action it took to protect against the risk of injury created by the condition or its failure to take such action was reasonable. The reasonableness of the action or inaction of the public entity shall be determined by taking into consideration the time and opportunity it had to take action and by weighing the probability and gravity of potential injury to persons and property foreseeably exposed to the risk of injury against the practicability and cost of protecting against the risk of such injury."
On Preece's nuisance claim, the jury found the District created a condition or permitted a condition at the intersection of the Yuha Wash and Westside Main that interfered with Preece's use and enjoyment of his land and the District's conduct was a substantial factor in causing harm to Preece. However, the seriousness of the harm did not outweigh the public benefit of the District's conduct.
After the jury's verdicts, the trial court found the District liable for inverse condemnation. The trial court concluded the District's irrigation system was unable to handle the July 2012 storm, and the District's system could mitigate, but not control a storm of that magnitude. The court noted that "[m]ost of the damage comes from ponding in this case and is not akin to normal irrigation. Ponding in this case was caused for the most part by Interstate 8."
Applying a "reasonableness standard," which balances public benefits and private damage, the court determined the District acted unreasonably in failing to take measures to protect against the flooding from storms of a magnitude similar to the July 2012 storm. The court stated, "[t]he District knew it was foreseeable that a flood could overwhelm the system at this location prior to [the July 2012] storm. The District decided not to take any other action beyond cementing the apron based upon a cost-benefit analysis."
In discussing the "reasonableness standard," the court noted that "the cases talk about design, construction and maintenance, and maintenance is not used in the term of maintaining it from the day-to-day standards of cleaning a drain ditch or removing brush or whatever, it's maintaining, in th[e] [c]ourt's opinion, the existing improvement, and in the case facing [the court] today is maintaining it in the face of knowledge that it's inadequate."
The court also found the District's conduct was a substantial cause of Preece's injuries because the District did not take "any action to divert water from the Yuha Wash in a better manner to the north so as to avoid a flood." The court concluded the storm was not an intervening cause of the harm because the District had notice of "a potential 50- or 100-year storm of the magnitude suffered in this particular case."
In making its ruling, the court evaluated whether there was a feasible alternative with lower risks available to the District. On this point, the court found, "[a] berm east of the Westside Main Canal to divert water north under the Interstate 8 bridge so it would not pond against the interstate highway is feasible. . . . The key in this case is a berm in this specific area so that water does not pond and sit." The court also found that Preece did not have to take reasonable measures to protect his property because he had "no notice."
After finding the District liable for inverse condemnation, the court brought the jury back for the damages phase of the trial. The jury found Preece's total damages were $1,832,000. The court apportioned fault 50 percent to the District and 50 percent to the State. The court noted, "[t]he freeway caused the ultimate damage to [Preece]. But for the freeway, the water would have flowed across [Preece's] land with little damage. It was the ponding effect causing the deposit of silt and the subsequent scalding of crops resulting in the damage to [Preece] as well as to his hay barns." The court stated it "would have apportioned responsibility to the State in excess of 50 percent but for the fact that the [District] had the last opportunity to take action after notice from the Army Corps of Engineers report."
In October 2015, the trial court entered judgment against the District in the amount of $916,000, plus attorney's fees and costs. The District moved to set aside the judgment, arguing the court erred in holding the District liable for inverse condemnation based on a factual finding of unreasonableness that contradicted the jury's finding of reasonableness on the dangerous condition claim, and the court erred by finding the District's structures caused Preece's damages. The court denied the motion.
The court awarded Preece $366,400 in attorney's fees and prejudgment interest in the amount of $7,938.
DISCUSSION
I. General Principles of Takings Law
"The authority for prosecution of an inverse condemnation proceeding derives from article I, section 19 of the California Constitution . . . which requires that just compensation be paid when private property is 'taken or damaged for public use.' " (Ullery v. County of Contra Costa (1988) 202 Cal.App.3d 562, 568, citing Holtz v. Superior Court (1970) 3 Cal.3d 296, 303-304; Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 263-264 (Albers).) "The fundamental policy behind the constitutional requirement of just compensation is the consideration ' " 'whether the owner of the damaged property if uncompensated would contribute more than his proper share to the public undertaking.' In other words, the underlying purpose of our constitutional provision in inverse—as well as ordinary—condemnation is 'to distribute throughout the community the loss inflicted upon the individual.' " [Citation.]' " (Biron v. City of Redding (2014) 225 Cal.App.4th 1264, 1280 (Biron), citing Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 558 (Belair).)
As a general rule, a public entity is strictly liable in inverse condemnation for damage to property proximately caused by a public improvement as deliberately designed and constructed. (Albers, supra, 62 Cal.2d at pp. 262-264; Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 367 [rule of strict liability is generally followed in inverse condemnation]; Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 751 [noting the general rule that a public entity is liable for inverse condemnation regardless of the reasonableness of its conduct].) However, an exception to that general rule is that when the public work at issue is a flood control project, the inverse condemnation plaintiff must show that the public agency's design, construction or maintenance of the flood control project posed an unreasonable risk of harm to plaintiff's property, and that the unreasonable design, construction or maintenance was a substantial cause of the plaintiff's damages. (Belair, supra, 47 Cal.3d at pp. 562-566.)
In a footnote in his brief, Preece states he believes the strict liability standard set forth in Albers, supra, 62 Cal.2d at pp. 262-264, applies in the present case because the District's structures were not flood control structures. However, he continues by stating that the trial court's application of Belair's reasonableness standard, as refined in Locklin, was harmless error, and he will analyze the appellate issues under the reasonableness standard. Thus, neither party has argued that this court should apply the strict liability standard. Further, the court may disregard and deem waived arguments not properly segregated and argued under appropriately discrete headings. (Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1345; Golden Day Schools, Inc. v. Department of Education (1999) 69 Cal.App.4th 681, 695, fn. 9; also Paterno v. State of California (1999) 74 Cal.App.4th 68, 94 (Paterno I).) Accordingly, we will not address the question of whether to apply the strict liability or reasonableness standard as the issue has not been properly raised on appeal. --------
In cases of flooding, "where a rainstorm merely contributes to the injury, proximate cause is established if the injury occurred in substantial part because the improvement failed to function as intended. [Citation.] 'The public improvement would cease to be a substantial contributing factor, however, where it could be shown that the damage would have occurred even if the project had operated perfectly, i.e., where the storm exceeded the project's design capacity. In conventional terminology, such an extraordinary storm would constitute an intervening cause which supersedes the public improvement in the chain of causation.' " (Biron, supra, 225 Cal.App.4th at p. 1279.)
II. Standard of Review
It is a mixed question of law and fact whether a government entity's action constitutes a "taking" of private property for public use. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 269 (Shaw).) "Mixed questions of law and fact involve three steps: (1) the determination of the historical facts—what happened; (2) selection of the applicable legal principles; and (3) application of those legal principles to the facts. The first step involves factual questions exclusively for the trial court to determine; these are subject to substantial evidence review; the appellate court must view the evidence in the light most favorable to the judgment and the findings, express or implied, of the trial court." (Ali v. City of Los Angeles (1999) 77 Cal.App.4th 246, 250.) On appeal, we apply the substantial evidence standard of review to the first step and the de novo standard of review to the questions of law involved in the second and third steps. (Shaw, supra, at p. 270.)
III. The District's Liability for Inverse Condemnation
The District argues the trial court erred in holding it liable for inverse condemnation because the District's irrigation system was not a substantial cause of the flooding on Preece's property. We agree.
Several cases have held there is no inverse condemnation liability where a project functions as intended, but a storm exceeds the project's design capacity. (Belair, supra, 47 Cal.3d at pp. 559-560; Biron, supra, 225 Cal.App.4th at p. 1279; Weck v. Los Angeles County Flood Control Dist. (1947) 80 Cal.App.2d 182, Tri-Chem, Inc. v. Los Angeles County Flood Control Dist. (1976) 60 Cal.App.3d 306, 309-310, 312 (Tri-Chem).) In Tri-Chem, for example, the plaintiffs' property flooded after a 17-year storm overflowed a county drain and city dike. (Tri-Chem, supra, at p. 309.) The storm exceeded the two or three-year storm capacity of the drain, and plaintiffs' property was substantially damaged. (Id. at p. 309.) Plaintiffs' property was a "natural sump, lake, or bathtub, and . . . without the benefit of the project, the flooding on their property would have been worse." (Id. at p. 310.)
The Court of Appeal in Tri-Chem reversed an inverse condemnation judgment against defendants, finding defendants' conduct was not a proximate cause of plaintiffs' harm. (Tri-Chem, supra, 60 Cal.App.3d at pp. 310, 315-316.) The court explained, "[a]ll that the record here shows is that a more extensive flood control system might have diverted more water from its natural flow across plaintiffs' properties. There is no evidence that the system did not work as it was designed to function, no evidence that it caused any sudden surges or even accelerated the flow, no evidence that any water which reached plaintiffs' properties did not follow the natural drainage pattern. Plaintiffs' argument necessarily assumes that defendants had a duty to improve on nature. It is, however, well established that the state has no duty to construct a flood control system." (Id. at pp. 311-312.) The court concluded that where "the flood control system, whether or not inadequate, reduced the flooding on plaintiffs' property" and the water from the storms exceeded the system's design capacity, defendants' conduct did not proximately cause plaintiffs' harm. (Id. at p. 315; see also Shaeffer v. State of California (1972) 22 Cal.App.3d 1017, 1020 ["If such flood control improvements do not subject a landowner's property to any additional flooding than would have occurred absent the work or improvement, the state incurs no liability for the acts complained of."].)
Similarly, in Biron, the city designed, constructed, and maintained a storm drainage system around plaintiffs' property. (Biron, supra, 225 Cal.App.4th at p. 1269.) The city commissioned an engineering firm to perform a storm drain study, which resulted in a capital improvement plan. (Ibid.) However, the city did not proceed with the improvements because it lacked available funds. (Id. at p. 1270.) Several years later, plaintiffs' property flooded during two storm events, one of which was a 16-year storm event and the other a 100-year event. (Ibid.) The Court of Appeal affirmed the trial court's finding that the city was not liable for inverse condemnation. (Id. at p. 1281.) On the issue of causation, the court found the city's drainage system, designed to a 10-year storm capacity, was not "a substantial cause of [plaintiffs'] damage because the system did not fail, it was simply overwhelmed by the amount of water the storm deposited into the system." (Id. at p. 1278.)
The Biron court relied on Belair, supra, 47 Cal.3d 550, explaining that Belair "describe[d] the factual scenario here as an example of a situation lacking the element of substantial causation." (Biron, supra, 225 Cal.App.4th at p. 1279.) Specifically, "Belair accurately predicted the facts of this case, i.e., the project operated perfectly but the storm exceeded the project's design capacity, and concluded that under such facts the extraordinary storm would be a superseding cause, cutting off the public entity's liability for inverse condemnation." (Biron, supra, at p. 1279.)
We find Tri-Chem and Biron on point. As in those cases, the District's structures functioned as intended, but the July 2012 storm exceeded the project's design capacity. The trial court found the Yuha Wash historically ran across Preece's property and that the property was in a historical floodplain. As the trial court stated, during the July 2012 storm, the Yuha Wash produced a peak flow into the Westside Main between 9,100 and 11,000 cubic feet per second. However, the Westside Main's capacity was only 3,750 cubic feet per second. The trial court concluded that the District's system "was unable to handle [the July 2012] storm event. . . . [T]he District's system can mitigate but not control a storm of this magnitude." These findings were supported by substantial evidence. Moreover, there was no dispute on the matter because Preece's expert and the District's watermaster agreed that the flood waters from the July 2012 storm exceeded the design capacity of the Westside Main and the flooding would have occurred even if the Westside Main had been completely empty.
The trial court did not find and the record does not support a finding that the District's irrigation system "failed to function as intended." (Biron, supra, 225 Cal.App.4th at p. 1279.) Instead, the trial court concluded that the District's conduct was a substantial cause of Preece's injuries because the District did not take "any action to divert water from the Yuha Wash in a better manner to the north so as to avoid a flood." Specifically, the trial court determined that the District should have constructed a berm east of the Westside Main to divert water north under the Interstate 8 bridge. However, the District had no "duty to improve on nature." (Tri-Chem, supra, 60 Cal.App.3d at p. 312; see also Paterno I, supra, 74 Cal.App.4th at pp. 96-98 [state had no duty to upgrade a levee to provide greater flood control protection].) Causation is not established where, as here, "[a]ll that the record here shows is that a more extensive flood control system might have diverted more water from its natural flow across [Preece's] properties." (Tri-Chem, supra, at p. 311.)
Moreover, there was no evidence before the trial court regarding the District's ability to construct a berm east of the Westside Main. Based on our review of the record, the Army Corps of Engineers report considered the possibility of constructing a berm west of the Westside Main, but ultimately concluded the costs of additional flood control measures exceeded the benefits the measures would provide. In regard to a berm east of the Westside Main, there was no evidence that it would have been feasible for the District to construct a berm in that location on its property. To the contrary, Preece's expert explained that "[i]f you look at the Westside Main, you can see that there's a lot of drains and stuff there that would probably get in the way of constructing a berm. You wouldn't be able to get in between them real well." Thus, Preece's expert would have advised Preece to build a dirt berm on the east side of Dixie Drain No. 4, running the entire length of Preece's farm. Based on the record before us, the evidence does not support the trial court's finding that the District should have constructed a berm east of the Westside Main to divert water north under the Interstate 8 bridge.
Preece argues that the District's failure to upgrade or improve its system is not an issue. Rather, Preece contends "the design of the junction of the Westside Main Canal and the Yuha Wash caused the initial flooding by diverting the combined flows onto [his] property. The design of the culverts under Interstate 8 made the flooding worse, since they were not able to carry the flows under the highway causing ponding, deposition of silt with resultant death to the crops and destruction of the level necessary to farm." Preece's argument is flawed for multiple reasons.
First, the evidence does not support a finding that the District's system at the junction of the Westside Main and the Yuha Wash diverted water onto Preece's property. Rather, the evidence revealed that before the District put its irrigation system in place, the Yuha Wash flowed across Preece's property. The District's system diverted water away from Preece's property to the north under the Interstate 8. It was undisputed that during the July 2012 storm event, the District's system absorbed some of the water that would have historically flowed onto Preece's property. The experts agreed the irrigation system mitigated the flow and reduced the amount of flooding on Preece's property.
Second, Preece contends the design of the culverts under the Interstate 8 made the flooding on his property worse and resulted in ponding. However, the trial court found the State was responsible for the design of the Interstate 8 and decision to place the highway over the existing canals and drains with the existing capacities. The court concluded that "contrary to [Preece's] position, it was not the District's responsibility to do anything beyond what the State requested. The State had their own manual and relied upon that. They only requested the [District] . . . to place what was necessary for their existing capacity." Further, the trial court had precluded Preece from arguing that the District's siphons, drains, and culverts under the Interstate 8 caused the damming effect "because that was the decision of the State . . . and the District had no control over that." Preece does not challenge the trial court's ruling or factual conclusions on the matter. Thus, the trial court's findings are presumed correct and any issue regarding them is forfeited on appeal. (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125.)
Third, Preece's argument suggests that the District should have enlarged the capacity of the culverts and siphons under the Interstate 8. However, the District had no duty to provide greater flood control protection by upgrading its system. (Paterno I, supra, 74 Cal.App.4th at pp. 96-98; Tri-Chem, supra, 60 Cal.App.3d at p. 312.) "It would be an unwarranted usurpation of power for a judge to impose liability for failure to upgrade a project, rather than for a defect in the project planned by the executive and legislative branches." (Paterno I, supra, at p. 96.)
Preece next suggests the District caused the damage to his property because the District had an emergency preparedness plan under which the District's employees estimated the amount of water coming into the Westside Main from the Yuha Wash in order to drop the level of the canal to accept those flows, but in the case of the July 2012 storm, "[t]he canal was dropped only a few inches." However, "[d]amage resulting from negligence in routine operation having no relation to the function of the project as conceived is not a taking for public use and thus not a basis for inverse condemnation." (Kambish v. Santa Clara Valley Water Conservation Dist. of San Jose (1960) 185 Cal.App.2d 107, 111 (Kambish) [concluding plaintiff could not recover in inverse condemnation based on allegation that defendant should have released water in a reservoir before heavy rainfall to minimize the danger of overflow and flooding on plaintiff's property].) Thus, even if the District was negligent in its implementation of its emergency preparedness plan, "[i]t has been definitely held that a property owner may not recover in an inverse condemnation proceeding for damages caused by acts of carelessness or neglect on the part of a public agency." (Tilton v. Reclamation Dist. No. 800 (2006) 142 Cal.App.4th 848, 856 (Tilton).)
Preece also contends that the District had a mechanism to completely empty the Westside Main into the New River at a location upstream from his property but failed to drop the canal more than a few inches. However, contrary to Preece's argument, the District could not immediately empty the Westside Main. Two spillways were located one to two hours upstream from the Yuha Wash, meaning it would have taken that long to impact the Westside Main, and a third spillway, the New River Spillway, was five hours upstream from the Yuha Wash apron. The evidence established that District employees monitored the storm and initially determined the canals were sufficiently accommodating storm waters. Early in the evening, the District opened spill gates and started to drop the water level in the Westside Main. However, thereafter, the rainfall increased dramatically in a short period of time and a large surge from the Yuha Wash hit the Westside Main. The District opened the spill gates wide open to drop the Westside Main as quickly as possible.
Even if the District would have completely emptied the Westside Main before the storm, Preece would have still suffered flood damage to his property because the District's structures could not accommodate the flows from the Yuha Wash during the July 2012 storm. During that storm, the Yuha Wash had a peak flow into the Westside Main between 9,100 and 11,000 cubic feet per second. These amounts exceeded the "brimful capacity" of the Westside Main, which was 3,750 cubic feet per second, and the 1,000 cubic feet per second capacity at the apron. Thus, while the Westside Main could have intercepted more water if it was completely empty, Preece would have still suffered flood damage. Moreover, as we already stated, the District's alleged negligence in failing to open spillways, including the New River Spill, is not a basis for inverse condemnation liability. (Kambish, supra, 185 Cal.App.2d at p. 111; Tilton, supra, 142 Cal.App.4th at p. 856.)
In sum, the July 2012 storm exceeded the design capacity of the District's irrigation system and, absent proof of substantial causation, the District has no liability in inverse condemnation.
DISPOSITION
The judgment is reversed. The District is entitled to costs on appeal.
BENKE, Acting P. J. WE CONCUR:
HUFFMAN, J.
DATO, J.