From Casetext: Smarter Legal Research

Starks v. City of Los Angeles

California Court of Appeals, Second District, Third Division
Mar 4, 2008
No. B192496 (Cal. Ct. App. Mar. 4, 2008)

Opinion


JOYCE A. STARKS, as Trustee, etc., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, Defendant and Respondent. B192496 California Court of Appeal, Second District, Third Division March 4, 2008

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court No. BC305747 of Los Angeles County, Joseph R. Kalin, Judge. Affirmed.

Benton, Orr, Duval & Buckingham and Bruce Alan Finck for Plaintiffs and Appellants.

Rockard J. Delgadillo, City Attorney, Janet G. Bogigian and Lisa A. Berger for Defendant and Respondent.

CROSKEY, J.

Plaintiffs and appellants James and Joyce Starks sued defendant and respondent City of Los Angeles (“City”) for damages incurred when a City sewer line backed up, causing sewage to flow into their home. The Starks alleged causes of action for inverse condemnation, nuisance, dangerous condition of property, and negligence. After the Starks had presented their evidence, the trial court granted a nonsuit in favor of the City on all causes of action except nuisance. The basis of the trial court’s ruling was a determination that the Starks had violated a City ordinance requiring them to install a “backwater valve” to protect their home from sewage backups. Had the Starks installed the valve as required, they would not have been harmed. The nuisance cause of action was presented to the jury, which returned a verdict in favor of the City. On appeal, the Starks contend the trial court erred in its interpretation of the controlling ordinance. We conclude the trial court correctly interpreted the unambiguous language of the ordinance, and therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Starks bought their house in 1965. At the time, it had a cesspool septic system. The City installed a mainline sewer on the Starks’ street in 1966. The Starks chose to hook up to the sewer in late 1980. The Starks hired contractor Beryl Lockhart, Joyce Starks’s brother, to install their connection to the sewer.

The Starks were not required by the City to hook up to the sewer at this time. They believed, however, that since they had been required to pay for the sewer, they might as well use it.

At this point, a brief overview of the relevant sewer system is necessary for an understanding of the case. The main sewer on the Starks’ street is a gravity sewer. It is located some distance beneath the ground, running under the center of the street. As it operates by gravity, the sewer is lower in the direction of the flow. The sewer is constructed of eight-inch clay pipe. Every so often, there are maintenance holes in the street above the sewer. As the sewer flows beneath a maintenance hole, the sewer pipe is open, like a trough. In this way, someone at street level, looking down the maintenance hole, can observe the flow in the sewer. In the event of a clog impeding the downhill flow of the sewer, wastewater will back up in the sewer pipe. However, as water seeks its own level, the wastewater will also back up in the maintenance holes immediately upstream of the blockage. If the blockage continues unabated, while more wastewater is added to the system, the flow will back up further in the pipe, and higher in the maintenance holes, until it ultimately releases onto the street out of the lowest maintenance hole upstream of the clog. Meeting no further resistance, the backed up sewage will continue to flow from the breached maintenance hole, without raising the wastewater level further in the sewer system.

The sewer system is more than just the mainline pipe, however. Individual homeowners connect to the sewer via “lateral” connections. As the sewer line itself is under the middle of the street, and individual homeowners are not permitted to tear up the street themselves, the City provides that portion of the lateral which runs from the sewer mainline to the curb or property line of the homeowner. The homeowner is then responsible for installing the remainder of the lateral, which connects to the home itself. In this case, the City’s portion of the lateral is 6-inch clay pipe, while the Starks’ portion is 4-inch clay pipe. In general, there are two types of lateral connections. The most common is a gravity connection. Sometimes, however, as when a house is located at the bottom of a very steep driveway, the mainline sewer is higher than the plumbing fixtures in the house, making a gravity lateral impossible. In those cases, a pump or ejector system is used to raise the house’s wastewater to a height above the mainline sewer. The Starks’ house is located partially below street level; but it is not below the subsurface level of the mainline sewer. Lockhart therefore installed a gravity lateral. In other words, the lateral ran down from the Starks’ home all the way to the mainline sewer.

Lockhart was initially unable to do so. The portion of the lateral initially installed by the City was at the wrong height, making it impossible for Lockhart to install a pipe that would run by gravity from the house. When this was called to the City’s attention, the City installed a new lateral connection from the mainline sewer to the Starks’ property line, at a location meeting the sewer further downhill, enabling Lockhart to install a gravity lateral.

The existence of sewer laterals affects the behavior of wastewater in the event of a blockage. As the wastewater backs up through the system, it maintains a uniform height throughout the system – in the mainline pipe, the maintenance holes, and the laterals. The height increases as more wastewater is added to the system without the obstruction having been cleared. Where the wastewater will ultimately flow out of the system depends on the lowest unobstructed opening behind the clog. That is, if the wastewater rises to the level of breaching a maintenance hole before it rises to the house-end of a lateral, the sewage will flow into the street and never enter the house. However, if the lowest unobstructed opening behind a clog is at the house-end of a sewer lateral (such as a shower drain or the rim of a toilet), the sewage will back up into the house. Such backups can be prevented by the installation of a backwater valve – a valve which controls the flow in a sewer pipe and only allows flow in a single direction (in this case, away from the house). It is therefore necessary to install a backwater valve in any installation in which a blocked sewer main might cause wastewater to back up into a home before such time as it would back up into the street. However, backwater valves can be somewhat problematic themselves, as they can retard flow and create obstructions. As such, backwater valves are not required as a matter of course, and are only required in situations where they are believed to be necessary. The City requires backwater valves in certain circumstances, and prohibits them in all others. Lockhart did not install a backwater valve in the Starks’ lateral; he believed it was not required (and therefore prohibited) by the controlling ordinance.

Lockhart testified that he never even considered installing a backwater valve. He further testified that he has never installed one.

The main issue in this case is whether the ordinance in effect at the time Lockhart installed the Starks’ lateral required a backwater valve. According to the ordinance, the necessity of a backwater valve is determined by the height of the “flood-level rim” of a “fixture.” The word “fixture” refers to a plumbing fixture within the home. The flood-level rim of a fixture is the lowest point at which it will flood. The applicable authority is Los Angeles Municipal Code section 94.20409, as enacted by Los Angeles Ordinance No. 147,586, in 1975. It provides as follows: “Any fixture, whose flood-level rim is located below the point at the curb or property line where the building sewer crosses and above the crown level of the main sewer, shall be drained by gravity into the main sewer. Such fixture shall be protected from backflow of sewage by a backwater valve. This backwater valve shall not be installed in a pipe that serves any fixture not located as described above.” In other words, the ordinance requires a comparison between the flood-level rim of a fixture, “the point at the curb or property line where the building sewer crosses,” and “the crown level of the main sewer.” Only when the flood-level rim of the fixture is below the first, and above the second, is a backwater valve required. The Starks take the position that the language “the point at the curb or property line where the building sewer crosses” refers to the height of the sewer where it crosses the curb or property line – in other words, the point where the City’s portion of the lateral connects with the homeowners’ portion. They therefore argue that a backflow valve is required only when the fixture’s flood-level rim is below that connection point on the lateral. In other words, the Starks argue that, as long as the fixture is above that connection point on the lateral – meaning that the lateral itself runs by gravity – no backwater valve is required. In contrast, the City takes the position that the language “the point at the curb or property line where the building sewer crosses,” refers to the height of the curb where the building sewer crosses underneath it. The City argues that, as long as the fixture’s flood-level rim is below curb-level, a backwater valve is mandated by the controlling ordinance. It is undisputed that the fixtures in the Starks’ home had flood-level rims below curb-level.

There is a dispute over the precise location of the flood-level rim of a toilet. Lockhart testified that this is the bottom of the toilet, where it sits in the wax. The City’s expert testified that the flood-level rim is the top of the toilet bowl, presumably on the theory that a properly-sealed toilet will not flood from the base. In any event, this dispute has no effect on the resolution of this appeal.

The ordinance has since been amended to require a backflow valve whenever the flood-level rim of a fixture is below the nearest upstream maintenance hole. This would appear to provide complete protection, as any fixture with a flood-level rim above the nearest upstream maintenance hole is not at risk for flooding, as the maintenance hole would overflow before the fixture ever would.

At one point, the Starks appear to argue that the “flood-level rim” of a “fixture” somehow refers to the top of the sewer lateral. Under this argument, no backwater valve is required as long as the sewer lateral is above the sewer main.

Lockhart had obtained a permit for the installation of the Starks’ lateral. Joyce Starks, who worked for Lockhart, actually applied for the permit herself, from the Department of Building and Safety. Joyce Starks was provided by the City with a copy of the Building Code, including the relevant ordinance. Lockhart also testified that he looked at the Building Code when he pulled the permit, to confirm what was required. Lockhart installed the lateral without a backwater valve. He left the lateral uncovered, so that it could be inspected. On Friday, December 5, 1980, Lockhart called the City for an inspection of the lateral. Inspector Theodore Marko was assigned the call. He inspected the lateral on the following Monday. There is a dispute as to what happened between Lockhart and Inspector Marko. Lockhart testified that Inspector Marko told him to “cover that up,” which Lockhart interpreted as oral approval of the lateral and direction that he cover the lateral with dirt. Inspector Marko testified that although he has no independent recollection of this particular inspection, he has never given a verbal approval. There is, however, an undisputed piece of written evidence. Inspector Marko left at the site a copy of the request for inspection. On the back, he wrote, “Not Ready 12/8/80 Marko.” The note also includes the handwritten text, “Deep ditch needs to be covered before rains ASAP,” which suggests that any direction to Lockhart to “cover” the lateral was not an approval, but simply a direction to tarp the trench for the coming rains. Believing that he had approval, Lockhart covered the lateral with dirt and considered the job complete.

Inspector Marko also testified that he never would have given final approval to this lateral in the absence of a backwater valve.

Lockhart could offer no explanation for this notation, stating that he did not know if it even related to this job.

Over the years, the Starks had a few clogged drains in their house, but never experienced any problems with the lateral or the main sewer. On April 22, 2002, however, sewage backed up in the main sewer, and through the Starks’ lateral, overflowing their plumbing fixtures into their home. While the parties disputed the amount of damage caused by the sewage overflow, there is no dispute that the quantity of sewage which poured into the Starks’ home caused substantial damage. When the Starks discovered the sewage overflow, they telephoned the City. City Maintenance Laborer Michael Bates responded to the call at 12:25 a.m. Bates opened a maintenance hole cover near the house and saw that the wastewater in the sewer was high, although it was not overflowing into the street. Bates then checked a maintenance hole further downstream, and discovered flowing wastewater. He therefore concluded there was a partial blockage between the two maintenance holes. Starting at the lower maintenance hole, Bates flushed the sewer line upwards. He and his partner retrieved a “root ball,” which he determined to be the cause of the blockage. As clay pipes have joints connecting the segments, tree roots can infiltrate sewer lines through these joints. The City has a maintenance program to fight tree roots in the mainline, but individual homeowners are responsible for keeping their laterals root-free. Bates determined from the size and shape of the root ball that it had originated in a lateral. The roots were in a tight ball; roots become balled in this manner if a plumber spins them with a snake. The root ball, which was approximately four inches wide, still had bits of toilet paper in it. The presence of toilet paper confirmed Bates’s suspicion that the root ball was of recent origin, because toilet paper quickly biodegrades in the sewer. In short, Bates believed that one of the upstream homeowners had hired a plumber to clean that homeowner’s lateral, and the plumber had forced the resulting root ball into the mainline, where it eventually created the partial blockage that led to the overflow in the Starks’ home.

Specifically, James Starks, who had already been diagnosed with chronic obstructive pulmonary disease, subsequently contracted pneumonia. The Starks argued that the pneumonia was caused by his exposure to the toxins in sewage; the City argued that it was simply the natural progression of his disease.

Joyce Starks testified the sewage was within one foot of the street.

City personnel testified that the majority of root problems come from private laterals rather than sewer mainlines. They explained, “There’s no trees in the middle of the street.”

Bates did not save the root ball; it was not admitted into evidence. The Starks did not offer any specific alternative theory for the cause of the sewage backup, although they questioned the City’s evidence and generally suggested that a lack of regular maintenance was responsible. This was based, largely, on a lack of documentary and video evidence which the City should have possessed. Wastewater Collection System Division Manager Barry Berggren testified that, after a sewage overflow, the City uses closed circuit television (CCTV) to inspect the sewer “to verify what caused the problem so that we can employ the proper corrective maintenance procedures to prevent it in the future.” The City is supposed to keep those tapes for five years. A “Spill Report” for the Starks’ spill indicates that a CCTV inspection was done, which apparently showed the presence of some roots, although it indicated that the roots were found only in laterals connecting to the mainline, not the mainline itself. The videotape of this inspection, however, could not be found. Similarly, while there are many techniques the City can and did use to combat roots in sewers, the City had no evidence indicating that anything had ever been done to combat roots in the Starks’ mainline prior to this spill. However, Sanitation Wastewater Manager Kosta Kaporis testified that the mainline had been inspected, prior to the spill, on May 9, 2001. He testified that crews looked in the manholes and confirmed no standing water, indicating no blockage.

The Starks brought suit against the City, seeking damages for the sewage overflow. The operative complaint is the second amended complaint, filed April 1, 2004. The complaint alleged that the mainline sewer was too shallow and too small for one of the laterals to function properly. It further alleged that the sewer was improperly maintained and upgraded, and that it had been invaded by tree roots. Interestingly, the complaint also alleged that when the Starks’ installed their lateral, they did so “with engineering to guard against backflow.” The complaint alleged causes of action for inverse condemnation, nuisance per se, nuisance, dangerous condition, negligence per se, and negligence. The case proceeded to trial.

The Starks cleaned portions of their home infiltrated by sewage but did not do the necessary sanitizing. Instead, they sealed off the rooms most affected, and lived only in the upper rooms of their house. The Starks’ insurer denied their claim, indicating that it was the City’s problem. The Starks sued only the City; they did not assert Lockhart was culpable for his installation of the lateral.

These theories were never pursued at trial. Indeed, the evidence was undisputed that only five percent of the mainline sewer’s capacity was being used.

Prior to trial, the parties briefed several individual issues. Among them was the Starks’ cause of action for inverse condemnation. The City argued that the Starks’ failure to install a backwater valve as required by law “constituted an intervening superseding cause of the sewage backup.” However, the City did not rely on the Municipal Code in effect in 1980, but rather the Code in effect in 1983. The Starks responded that the City had relied on a Code section which post-dated the installation of their lateral. They quoted the Code section in effect in 1980, and argued that it had prohibited the use of a backwater valve. The case proceeded to trial.

The relevant Municipal Code sections often tracked the Uniform Plumbing Code. The City relied on the Uniform Plumbing Code in effect in 1979, but that version of the Uniform Plumbing Code was not adopted by the City until 1983.

It is unclear whether the City had sought an order precluding the Starks from proceeding on their inverse condemnation cause of action. The relevant minute order states only “The issue of inverse condemnation is argued.” The reporter’s transcript for that date does not include any such argument.

During trial, the Starks attempted to elicit Lockhart’s testimony that the 1980 Municipal Code, including the 1975 ordinance, did not require, and, in fact, prohibited, the use of a backwater valve. The trial court sustained the City’s objection to this testimony, on the basis that the interpretation of an ordinance is a question of law for the court. The trial court indicated that it would hear argument on the issue of the applicable code section the following morning. That morning, the parties agreed that the ordinance enacted in 1975 governed. A dispute, however, surrounded its meaning. The Starks took the position that, regardless of the actual meaning of the ordinance, they should be able to present evidence that Lockhart’s interpretation of the ordinance had been reasonable. They represented that Lockhart’s reasonable interpretation was that a backwater valve was only required in ejector systems, not gravity ones. The court expressed skepticism toward the Starks’ argument that the actual meaning of the ordinance was simply not relevant. The court allowed further briefing on the issue, and the trial proceeded with the dispute unresolved. However, when the Starks again attempted to elicit Lockhart’s testimony interpreting the ordinance, the court again sustained the City’s objection, stating, “What Code is applicable in this case is an issue of law for the court, and a lay witness cannot testify to that.”

Throughout the trial, the Starks’ case hung on the theory that the applicable ordinance prohibited the use of a backwater valve. At one point, the Starks’ counsel argued that the City had an obligation to either install a backwater valve itself, or to inform the Starks of the need for one, either in the approved construction plans, “the permit or the inspection process or their codes.”

After the Starks had rested, the City moved for a nonsuit on all of the Starks’ causes of action. The City’s motion relied on the Starks’ failure to install a backwater valve, and also argued that there was no evidence that the City caused the sewer backup. In opposition to the motion, the Starks’ counsel argued that the City should be liable because it was required to inform the homeowners, either in approved plans, the permit, the inspection, or “a reasonable interpretation of the [19]75 Code” that a backwater valve was required. The Starks argued that the ordinance was ambiguous and should be interpreted to prohibit a backwater valve. The Starks further argued that, if the City was relying on private parties to install backwater valves, the City should be charged with imputed knowledge that the Starks’ lateral had been installed without a valve, as a result of the inspection. The City responded that it could not have prevented this spill, given that it was caused by a third-party’s root ball and the Starks’ failure to install a backwater valve. The City noted that Inspector Marko had indicated in writing that the lateral was not ready for approval but Lockhart completed the installation anyway, and never sought a second inspection. The Starks replied that they did not concede the cause was a third-party root ball, given the City’s lack of maintenance and loss of their maintenance and CCTV records.

The Starks rested subject to calling further witnesses on the issue of damages.

The trial court concluded that the 1975 ordinance required the installation of a backwater valve. The court concluded that Lockhart’s failure to install such a valve defeated all of the Starks’ causes of action except nuisance, which was allowed to proceed to jury verdict. The jury returned a defense verdict, answering “no” to the question, “Did the [City], in the operation of its main sewer line, create a condition that was harmful to the Starks’ health or enjoyment of their property?” Judgment was entered accordingly. The trial court denied the Starks’ motions for judgment notwithstanding the verdict and a new trial, and the Starks filed a timely notice of appeal.

ISSUES ON APPEAL

All of the Starks’ arguments on appeal are directed to, or based upon, their contention that the 1975 ordinance prohibited, rather than mandated, the use of a backwater valve in their lateral. We conclude that the ordinance unambiguously required the installation of a backwater valve. As such, the City was entitled to judgment in its favor.

DISCUSSION

This case turns on the interpretation of the controlling ordinance. “The construction of a written law is a legal issue that we review de novo.” (Woo v. Superior Court (2000) 83 Cal.App.4th 967, 974.) Determining the ordinance’s intent is our paramount concern. “To determine that intent, we first look to the words of the provision adopted. [Citations.] If the language is clear and unambiguous, there ordinarily is no need for construction. [Citations.] We presume that the [City Council] intended the meaning apparent on the face of the measure, and our inquiry ends.” (Id. at p. 975.) “However, we will not presume that the lawmakers . . . intended the literal construction of a law if the construction would result in absurd consequences.” (Ibid.)

We turn to the language of Los Angeles Municipal Code section 94.20409, as enacted by Los Angeles Ordinance No. 147,586, in 1975. The ordinance provides: “Any fixture, whose flood-level rim is located below the point at the curb or property line where the building sewer crosses and above the crown level of the main sewer, shall be drained by gravity into the main sewer. Such fixture shall be protected from backflow of sewage by a backwater valve. This backwater valve shall not be installed in a pipe that serves any fixture not located as described above.”

The language of the ordinance is clear and unambiguous. The ordinance requires the comparison of three heights. First, one must consider the flood-level rim of a fixture, which is the point at which a plumbing fixture within the house would overflow. Second, one must consider “the point at the curb or property line where the building sewer crosses.” The ordinance’s language identifies the point “at the curb,” not the point “on the sewer” or the point “below the curb.” The ordinance is therefore concerned with curb height and, in the event the curb is not at a consistent height, it identifies the point “at the curb” where the building sewer crosses beneath it. Third, the ordinance identifies the height of the “crown . . . of the main sewer.” There is no dispute that this refers to the top of the sewer main. The ordinance next requires the comparison of these three heights; it applies when the flood-level rim of the fixture is below the curb height and above the main sewer height. In such circumstance, the ordinance provides that the fixture “shall be drained by gravity into the main sewer,” and that the fixture “shall be protected from backflow of sewage by a backwater valve.” In short, if a fixture is located below the curb but above the sewer, it must be protected by a backwater valve. The Starks argue that this interpretation of the plain language of the ordinance is not “sensible.” On the contrary, it is quite sensible. Consider a relatively flat street, and a house on the street with a basement bathroom. As the basement bathroom toilet has a flood-level rim below the curb line, it is apparent that, in the event of a sewage backup, the sewage will overflow from the toilet before it has a chance to overflow harmlessly into the street through a maintenance hole. It is precisely this type of fixture which the ordinance requires to be protected by a backwater valve. In contrast, when a fixture’s flood-level rim is above the curb line, backed up sewage will breach a street-level maintenance hole before it would ever reach the height of the fixture’s flood-level rim. In those cases, no backwater valve is necessary.

The final sentence of the ordinance reads, “This backwater valve shall not be installed in a pipe that serves any fixture not located as described above.” In some houses, particularly multi-story ones, some of the fixtures in the house might have flood-level rims below the curb-line, while other fixtures have flood-level rims above it. The ordinance indicates that the backwater valve protecting the lower-situated fixtures cannot be in the same pipe servicing the upper-level fixtures. In other words, the backwater valve should be placed in a pipe connecting only the lower-level fixtures to the lateral. In this way, if the backwater valve itself causes a blockage, the upper-level fixtures can still be used.

The Starks argue for a different interpretation of the ordinance. In the Starks’ view, one is to compare the flood-level rim of the fixture with the height of the sewer where it crosses the curb. According to the Starks, the language, “Any fixture, whose flood-level rim is located below the point at the curb or property line where the building sewer crosses,” simply refers to any fixture which is below the point at which the private lateral connects to the City’s lateral. The Starks suggest that a backwater valve is required only in those situations; that is, situations in which the lateral cannot flow by gravity and must, instead, work via pump or ejector. This interpretation is incorrect for at least two reasons. First, as noted above, the language of the ordinance refers to the point “at the curb or property line,” not “below the curb or property line.” Second, the interpretation is completely inconsistent with the remainder of the first sentence of the ordinance, which indicates that the identified fixtures “shall be drained by gravity into the main sewer.” The Starks take the position that the ordinance applies only to fixtures which are located below the connection to the City’s portion of the lateral, yet no such fixtures could drain by gravity into the main sewer as they are below the established connection.

In their reply brief, the Starks argue that proper application of the ordinance requires “comparing the height of the crown of the sewer main where the lateral crosses the curb line with the flood rim level inside of the house.” It is impossible to consider “the height of the crown of the sewer main where the lateral crosses the curb line” because the sewer main and the lateral are two different pipes, and there is no sewer main at the point where the lateral crosses the curb line. It appears that the Starks are arguing that one should consider the crown of the sewer main at the point at which it connects to the lateral. In any event, the Starks overlook the next clause of the ordinance, which indicates it applies to fixtures which are below the point at the curb where the building sewer crosses “and above the crown level of the main sewer.” In other words, the Starks argue that the ordinance applies to fixtures whose flood level rim is simultaneously below the crown level of the main sewer and above it.

Indeed, the Starks argue that they should have been permitted to introduce evidence of a recent CCTV recording of their lateral, on the basis that the recording would demonstrate that their lateral flowed entirely by gravity, and therefore could not have required a backwater valve. But the language of the ordinance is crystal clear; it identifies fixtures which both “shall be drained by gravity into the main sewer” and “shall be protected from backflow of sewage by a backwater valve.” Proof that the Starks’ lateral drained by gravity is simply not evidence that a backwater valve was not required.

It also appears that the Starks may be arguing that the when the ordinance speaks of the “flood-level rim” of a “fixture,” it is actually speaking of the top of the sewer lateral. This interpretation is similarly erroneous when viewed in the context of the entire ordinance. Making the necessary replacements, the Starks would argue that the ordinance would read as follows: “Any lateral which is located below the point at the curb or property line where the building sewer crosses and above the crown level of the main sewer, shall be drained by gravity into the main sewer. Such lateral shall be protected from backflow of sewage by a backwater valve. This backwater valve shall not be installed in a pipe that serves any lateral not located as described above.” Obviously, this is ridiculous. The last sentence alone makes no sense, because a pipe does not “serve” a lateral, but instead serves plumbing fixtures. Moreover, it is difficult to conceive of a gravity-draining lateral which is below the point (as the Starks interpret the first sentence) where the City’s lateral meets the private lateral.

In the “Conclusion” section of their opening brief, the Starks argue, “all that is required under [the relevant Municipal Code section] is comparing the height of the sewer lateral where it crosses the curb line to the height of the flood rim or top of the sewer pipe.”

The interpretation is also inconsistent with Lockhart’s testimony at trial regarding the flood-level rim of plumbing fixtures inside the house.

In short, both of the Starks’ suggested interpretations of the ordinance not only are in direct conflict with the express terms of the ordinance, but are contradictory when the ordinance is read as a whole. Reduced to its simplest point, the Starks’ argument is that the ordinance prohibits backwater valves in any gravity-draining laterals, despite the fact that the ordinance expressly provides that the laterals in which it requires backwater valves shall, in fact, be drained by gravity. The Starks offer interpretations which are not supported by the plain language of the ordinance and, in fact, are contradicted by it. The ordinance is unambiguous and the Starks’ interpretations are not reasonable as a matter of law.

Given this conclusion, all of the Starks’ arguments on appeal are defeated. The Starks’ main contention is that the nonsuit on the cause of action for inverse condemnation was inappropriate, because the City’s “design” of the sewer system caused the backup. The Starks argue that “[a]s part and parcel of City’s ‘deliberate design’ of the sewer, the City had enacted certain provisions in its plumbing code, such that when properly interpreted and applied, [the Starks] were prohibited from installing the backwater valve.” On the contrary, the ordinance, which the Starks conceded was “part and parcel” of the deliberate design of the sewer system, required the Starks to install a backwater valve. The Starks’ failure to install the backwater valve resulted in the system not functioning as designed, due solely to the Starks’ error. Similarly, the Starks argue that their motion for judgment notwithstanding the verdict on the nuisance cause of action should have been granted, because the City’s defense was “predicated up on the application of the wrong law.” As we have discussed, the City’s interpretation of the ordinance was correct.

To the extent the Starks argue the City is partially liable for their failure to install a backwater valve, we disagree. It is undisputed that Inspector Marko left the written notice “Not Ready” when he inspected the lateral. Even if Lockhart’s testimony regarding an oral approval could be believed in light of this evidence, Government Code section 818.6 provides that a public entity “is not liable for injury caused . . . by reason of making an inadequate or negligent inspection of [property] for the purpose of determining whether the property complies with or violates any enactment . . . .”

California State Automobile Assn. v. City of Palo Alto (2006) 138 Cal.App.4th 474, 481, held that a plaintiff can recover in inverse condemnation if the public improvement was a substantial concurrent cause of the injury. This, in turn, can be established if the injury occurred in substantial part because the improvement failed to function as it was intended. (Ibid.) In our case, the ordinance, which is concededly a part of the sewer system as designed, indicates that the “backflow of sewage” is an anticipated event and that fixtures below the curb line “shall be protected from backflow of sewage by a backwater valve.” The sewer system functioned exactly as intended; sewage backed up into the Starks’ home because they failed to comply with the ordinance requiring them to install a protective backwater valve.

The Starks also argue that the trial court committed certain evidentiary errors, but these arguments, as well, rely on the Starks’ interpretation of the ordinance. Preliminarily, we note that few of the Starks’ evidentiary arguments are properly presented on appeal, with argument and citation to authority. Instead, the Starks simply compare the trial court’s admission of some of the City’s evidence to the exclusion of some of their proffered evidence, and invite the conclusion that this was unfair. Contentions supported by neither argument nor citation of authority are deemed to be without foundation and to have been abandoned. (Huntington Landmark Adult Community Assn. v. Ross (1989) 213 Cal.App.3d 1012, 1021.) Remaining contentions fall with the Starks’ misinterpretation of the governing ordinance. The Starks argue: (1) that Lockhart should have been permitted to testify to his interpretation of the ordinance; (2) that their CCTV recording showing their lateral flowing by gravity should have been admitted; and (3) that the City’s witnesses were impermissibly permitted to testify as to whether a backwater valve was required simply by “looking at the curb line,” rather than measuring the depth of the sewer. As the trial court correctly determined that the ordinance requires a backwater valve when the flood-level rim of a fixture is below the curb line, there was no error.

For example, the Starks argue, “After being unable to find any post-spill investigative videos or pre-spill maintenance videos, the City’s position that a four-inch ball of roots clogged an eight-inch pipe was unable to be graphically questioned by refusal to allow questioning of Beryl Lockhart’s placement of a four-inch baseball inside an eight-inch pipe.” The Starks cite to two pages in the reporter’s transcript where Lockhart attempted to testify with the model, an objection was made, and the court indicated an intention to discuss the matter outside the presence of the jury. The Starks fail to indicate a trial court ruling which they are challenging, the basis for that ruling, and the reason why they believe it constitutes error.

The Starks also argue that the City should not have been permitted to show the jury a backwater valve which had not been in existence in 1980. The trial court explained to the jury that it could consider the backwater valve only as demonstrative of how such a valve works. The witness explained, on cross-examination, that the sample valve itself was of recent origin, but one could have obtained a valve like it in 1980. There was no error.

Finally, in their reply brief, the Starks argue that the trial court erred by failing to instruct the jury regarding loss of evidence and spoliation in the language of CACI Nos. 203, 204 and 205. In fact, all three of these instructions were given to the jury.

DISPOSITION

The judgment is affirmed. The City shall recover its costs on appeal.

We Concur: KLEIN, P. J., ALDRICH, J.


Summaries of

Starks v. City of Los Angeles

California Court of Appeals, Second District, Third Division
Mar 4, 2008
No. B192496 (Cal. Ct. App. Mar. 4, 2008)
Case details for

Starks v. City of Los Angeles

Case Details

Full title:JOYCE A. STARKS, as Trustee, etc., Plaintiffs and Appellants, v. CITY OF…

Court:California Court of Appeals, Second District, Third Division

Date published: Mar 4, 2008

Citations

No. B192496 (Cal. Ct. App. Mar. 4, 2008)