Opinion
D056134 Super. Ct. No. GIC859567
08-26-2011
ORLANDO VALENZUELA et al., Plaintiffs and Appellants, v. COUNTY OF SAN DIEGO et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Linda B. Quinn, Judge. Affirmed.
Plaintiffs in this action are nine homeowners who owned five residential properties damaged by floodwaters during heavy rainstorms in January and February of 2005. In their operative third amended complaint (the complaint), plaintiffs alleged that various acts and omissions by the County of San Diego (County), Bonita Highlands Homeowners Association (BHHOA), and John and Thelma Oullette caused the flood damage to their homes. The complaint included a cause of action against the County for inverse condemnation in which plaintiffs alleged the County's construction of Central Avenue in Bonita and related public improvements caused water traveling in Bonita Creek to escape its natural channel and flood onto Central Avenue and then onto plaintiffs' properties. The complaint also included causes of action for negligence, nuisance, and trespass against "ALL DEFENDANTS" (the County, the Oulettes, and BHHOA).
The plaintiffs are Orlando Valenzuela, Deanna Otero, David Alimorong, Beth Alimorong, Noel Benitez, Ana Benitez, Mary Chaanine, Guillermo Jiron, and Ruth Jiron.
The complaint separately named as defendants the County of San Diego, San Diego County Flood Control District, and San Diego County Department of Public Works. We refer to these agencies collectively as the County. The complaint also named other private party defendants who were no longer in the case at the time of trial.
At trial, a jury returned a special verdict finding that the County's "creation" of Central Avenue and related improvements did not cause more water to flow onto any of plaintiffs' properties than otherwise would have if the improvements had not been built. The special verdict form directed the jury to answer no further questions as to the County if it made that finding. The jury found against plaintiffs and in favor of all defendants named in plaintiffs' causes of action for negligence, nuisance, and trespass. The court entered judgment on the special verdict. The judgment includes the court's finding that there was insufficient evidence to support plaintiffs' cause of action against the County for inverse condemnation.
Despite the direction to answer no further questions as to the County, the jury made specific findings in favor of the County on plaintiffs' causes of action for nuisance and trespass. However, the jury did not answer special verdict questions concerning plaintiffs' cause of action against the County for dangerous condition of public property.
Plaintiffs contend the court prejudicially erred by accepting a stipulation between plaintiffs and the County that no public work of improvement at issue in this case was designed or constructed for flood control purposes. We reject this contention and affirm the judgment.
In their opening brief, plaintiffs also specify the following as an issue presented in their appeal: "May a public entity defendant which issued development and drainage permits for a residential zone which has been improved for the last fifty years defend a flooding claim solely by proof the homes were built in a historical flood plain and therefore the entity may knowingly permit flood water onto the improved areas without liability for damages?" (Capitalization omitted.) We disregard this issue because plaintiffs do not tie it to any assignment of trial court error or support it with any argument or citation to authority. (Cal. Rules of Court, rule 8.204(a)(1)(B).)
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs' homes are located on an ancient alluvial valley and flood plain in Bonita in an area that historically has been subject to flooding. Central Avenue is a County road that runs in an east-west direction through the valley just north of plaintiffs' homes.
Rain water from higher elevations northeast of the valley flows down Bonita Creek toward Central Avenue through a natural channel. When the storm flow meets Central Avenue, it travels along a roadside drainage ditch that runs parallel to Central Avenue on the north side of the road until it meets a headwall that directs it to the left at a 45 degree angle and under Central Avenue through a culvert consisting of three boxes that are five feet wide and 10 feet high. The water then flows through a privately-owned, manmade earthen channel constructed along Bonita Creek's natural watercourse south of plaintiffs' homes. At trial the parties referred to this privately owned channel as the "Bonita Creek channel." The County did not own or maintain the Bonita Creek channel at any time before the January 2005 flooding.
From Central Avenue, the Bonita Creek channel runs about one-third mile, crossing properties owned by the Oullettes and BHHOA, and ends at Dawsonia Street, a County road that intersects with Central Avenue. Water in the Bonita Creek channel flows through a three-barrel box culvert under Dawsonia Street and eventually into the Sweetwater River and out to the San Diego Bay.
On January 11, 2005 and February 21, 2005, plaintiffs' homes were flooded as a result of heavy rains. The January storm was between a 10-year and 25-year storm—i.e., it was of a magnitude that can be expected to occur once every 10 to 25 years.
Plaintiffs' complaint included causes of action for negligence, nuisance, and trespass against all defendants, and causes of action for inverse condemnation and dangerous condition of public property against "public entities" (i.e., the County). At trial, plaintiffs and the County entered into the following stipulation: "The Plaintiffs and the County of San Diego entity Defendants stipulate that no County public work of improvement at issue in this action is or was a public flood control facility designed, constructed, or maintained for flood control purposes or for the purposes of protecting Plaintiffs' properties from flooding or flood damage."
As noted, the jury returned verdicts in favor of all defendants on plaintiffs' causes of action for negligence, nuisance, and trespass, and found that none of the improvements by the County specified on the special verdict form caused "more water to flow onto any of Plaintiffs' properties on January 11, 2005 than otherwise would have if the improvements had not been built at all[.]" The County improvements specified on the special verdict form were Central Avenue, the "Central Avenue transition structure and culvert," Dawsonia Street, and the drainage ditch north of Central Avenue. The court ruled in the County's favor on plaintiffs' cause of action for inverse condemnation, finding there was insufficient evidence to support that cause of action.
DISCUSSION
I. Judgment in Favor of the County
Plaintiffs contend the court committed reversible error by allowing their trial counsel to stipulate that none of the County improvements at issue in this case were flood control improvements. Plaintiffs argue that the stipulation caused plaintiffs' trial counsel and the court to apply the wrong legal standard in evaluating their inverse condemnation cause of action and that all of the defendants benefitted from the error.
The stipulation provides no basis to disturb the judgment for several reasons. First, plaintiffs have not articulated any trial court error with respect to the stipulation other than the fact that the court accepted the stipulation. The court did not err in accepting the stipulation, which was a proper stipulation of fact that was conclusive and binding on the parties. (Smith v. Walter E. Heller & Co. (1978) 82 Cal.App.3d 259, 269; Harris v. Spinali Auto Sales, Inc. (1966) 240 Cal.App.2d 447, 452; Miller v. Hassen (1960) 182 Cal.App.2d 370, 376 [findings based on stipulated facts in joint pretrial conference statement signed by appellant's trial counsel may not be challenged on the ground they were not supported by the evidence].)
Further, the record shows that plaintiffs' counsel's decision to enter into the stipulation was made for tactical reasons based on the law applicable to inverse condemnation actions arising from public improvements. 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 v. County of Los Angeles (1965) 62 Cal.2d 250, 262-264 (Albers); 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 (Arreola)[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 v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 562-566 (Belair).)
The record clearly shows that plaintiffs stipulated the County improvements at issue in this case were not flood control improvements because throughout the litigation, plaintiffs sought to hold the County strictly liable for their damages rather than having to make the greater showing required under Belair in inverse condemnation actions arising from flood control projects. Under Belair, plaintiffs would have had to prove both that the County was unreasonable in the design, construction, or maintenance of the public improvements at issue in this case, and that the County's unreasonable conduct was a substantial cause of their property damage. (Belair, supra, 47 Cal.3d at pp. 562-566.) Under plaintiffs' chosen theory of strict liability applicable to inverse condemnation actions arising from non-flood control public improvements, plaintiffs had to prove causation only—i.e., that the County improvements at issue proximately caused the damage to their properties. (Albers, supra, 62 Cal.2d at pp. 263-264.)
In a motion for summary adjudication heard before trial, plaintiffs argued: "[The County defendants] are strictly liable because they constructed Central Avenue over a natural watercourse, thereby diverting and obstructing its natural flowpath for the purpose of providing public transportation, not for the purpose of providing flood protection. [The County defendants] have no viable defense to this strict liability charge because, as they have admitted, Central Avenue was not constructed for the purpose of flood control, but instead as a public roadway." (Bold, underlining, and italics in original.) Plaintiffs developed that point under the heading: "The Flood Control Exception To Strict Liability Is Not Applicable In This Case." After noting the flood-control exception to strict liability under Belair, plaintiffs asserted that the County "may not shield [itself] from strict liability because [it] diverted, obstructed and re-channeled a natural water course for the purpose of constructing a public highway, not as part of a flood control project."
Plaintiffs noted that the County admitted Central Avenue was not created for the purpose of flood control in a response to a request for admission. Plaintiffs asserted, as an undisputed material fact, that "[t]he 'public work' complained of by PLAINTIFFS was not a flood control project. It was a public highway—Central Avenue. DEFENDANTS have already admitted this fact in discovery." Regarding the County storm drains, plaintiffs stated that "[the County has] admitted that the storm drains in question were not part of a flood control project intended to protect PLAINTIFFS' properties but instead were intended to provide roadway drainage for their streets." (Italics added.)
Because their litigation strategy was unsuccessful, plaintiffs essentially are seeking, for the first time on appeal, to withdraw from the stipulation and obtain the opportunity to retry their case on a different theory—namely, that the County improvements at issue were in fact flood control improvements and that the County's unreasonable design, construction, or maintenance of the improvements was a substantial cause of their damages. Plaintiffs not did seek to withdraw from the stipulation during trial or seek any relief from the stipulation in the trial court after trial.
" ' "Relief from a stipulation may not be granted when requested for the first time upon appeal. The proper course is to make timely application to the court in which the stipulation was made, by a motion requesting relief, notice of which should be given to the opposing party. A hearing should then be had on affidavits and counter-affidavits." ' " (Leonard v. City of Los Angeles (1973) 31 Cal.App.3d 473, 478, quoting Warburton v. Kieferle (1955) 135 Cal.App.2d 278, 286.) A trial "court should not set aside a stipulation regularly made except after a clear showing of error or unfairness." (Harris v. Spinali Auto Sales, Inc., supra, 240 Cal.App.2d at p. 453.) "[A] poor outcome is not a principled reason to set aside a stipulation by counsel." (County of Sacramento v. Workers' Comp. Appeals Bd. (2000) 77 Cal.App.4th 1114, 1121.) Thus, by not seeking relief from the stipulation in the trial court, plaintiffs forfeited the right to challenge the stipulation on appeal and, in any event, they have not shown any basis on which the trial court could have granted them relief from the stipulation.
Plaintiffs argue that attorneys cannot stipulate to give up substantial rights or a cause of action without the client's consent, but do not specify any substantial right or cause of action that they gave up as a result of their stipulation with the County. The tactical decision to litigate plaintiffs' inverse condemnation cause of action on a strict liability theory, rather than seeking to prove under Belair that the County acted unreasonably with respect to a flood control project, did not result in the forfeiture of any substantial right or plaintiffs' inverse condemnation cause of action. Examples of stipulations that are improper without a client's consent because they impair a substantial right or cause of action include settling and compromising a claim, stipulating to a matter that eliminates an essential defense, agreeing to the entry of a default judgment, stipulating that only nominal damages may be awarded, agreeing to an increase in the amount of a judgment against the client, and waiving findings so that no appeal can be taken. (Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 404-405.) "Such decisions differ from the routine and tactical decisions which have been called 'procedural' both in the degree to which they affect the client's interest, and in the degree to which they involve matters of judgment which extend beyond technical competence so that any client would be expected to share in the making of them." (Id. at p. 405.) Plaintiffs' counsel's decision to pursue the strict liability theory of inverse condemnation applicable to public improvements other than flood control improvements was a tactical decision within counsel's authority to bind the client in procedural matters. (Id. at p. 403; see Duffy v. Griffith Co. (1962) 206 Cal.App.2d 780, 787 [trial counsel has authority to determine what defenses to pursue and omit and to "exercise discretion to make such tactical decisions as the exigencies of the combat may dictate"].)
In any event, even when an attorney acts to impair the client's substantial right or cause of action, there is a rebuttable presumption that the attorney has authority to do so. (Gagnon v. Nevada Desert Inn, Inc. (1955) 45 Cal.2d 448, 460-461; Ford v. State of California (1981) 116 Cal.App.3d 507, 517, overruled on other grounds in Duran v. Duran (1983) 150 Cal.App.3d 176, 177-179.) Plaintiffs have not attempted to rebut that presumption.
Plaintiffs further contend the stipulation should be set aside because it incorrectly states material facts that are contradicted by undisputed evidence. Specifically, plaintiffs contend their counsel incorrectly stipulated that the Bonita Creek channel is not a flood control channel. However, the stipulation did not address the privately owned Bonita Creek channel; it stated that "no County public work of improvement at issue in this action is or was a public flood control facility . . . ." (Italics added.) The special verdict form submitted to the jury shows that the County improvements at issue were Central Avenue, the "Central Avenue transition structure and culvert," Dawsonia Street, and the drainage ditch north of Central Avenue. It was not factually inaccurate for counsel to stipulate, as plaintiffs argued in their summary adjudication motion, that these improvements were not flood control improvements subject to the Belair exception to strict inverse condemnation liability.
In Arreola, supra, 99 Cal.App.4th 722, certain plaintiffs brought inverse condemnation claims against the state alleging that drainage culverts under State Highway 1 were too small to drain floodwaters and that, as a result, the highway created a damming effect that caused higher flood levels and damage to plaintiffs' properties. (Id. at p. 731.) Notwithstanding the construction of culverts under Highway 1 to drain storm flows, the Court of Appeal held that Belair's "rule of reasonableness" did not apply to those inverse condemnation claims because "Highway 1 was not a flood control project and was not built to protect the plaintiffs' land." (Arreola, supra, 99 Cal.App.4th at pp. 751, 753-754.)
Arreola illustrates that public roads do not become flood control projects for purposes of Belair's rule of reasonableness merely because their design and construction includes ancillary improvements such as culverts or drainage ditches that are designed to prevent the natural flow of water from being obstructed by the road and to keep the road free of water and debris that had previously flowed down the natural watercourses. Plaintiffs' counsel could reasonably stipulate, as a matter of fact, that the County roads at issue in this case (Central Avenue and Dawsonia Street) and their related improvements that directed the flow of storm waters did not constitute a "flood control facility designed, constructed, or maintained for flood control purposes or for the purpose of protecting Plaintiffs' properties from flooding or flood damage." Thus, plaintiffs' contention that the stipulation incorrectly states material facts has no merit.
As noted, plaintiffs asserted in moving for summary adjudication that Central Avenue was not a flood control project but rather a public highway, and that "the storm drains in question were not part of a flood control project intended to protect PLAINTIFFS' properties but instead were intended only to provide roadway drainage for their streets." (Italics added.) They also argued that this case is similar to Arreola and that like Highway 1 in that case, the public works at issue here were not part of a flood control project to protect them from flooding and, therefore, the County was not entitled to any exception to the general rule of strict liability.
Even if the trial court's acceptance of the stipulation somehow constituted error, the doctrine of invited error precludes plaintiffs from raising the issue on appeal. "[W]here a party by his conduct induces the commission of an error, under the doctrine of invited error he is estopped from asserting the alleged error as grounds for reversal. [Citations.] Similarly, an appellant waives his right to attack error by expressly or implicitly agreeing or acquiescing at trial to the ruling or procedure objected to on appeal. [Citations.]" (In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501.) The invited error doctrine applies when the claimed error was the result of "affirmative conduct demonstrating a deliberate tactical choice on the part of the challenging party." (Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679, 706.)
Here, plaintiffs entered into the stipulation with the County as a deliberate tactical choice to pursue strict liability against the County on their inverse condemnation cause of action rather than take on the greater burden of proving that the County acted unreasonably in designing, constructing, or maintaining flood control improvements. Consequently, they may not be heard to complain on appeal that the court committed reversible error by accepting the stipulation.
Moreover, even if the doctrine of invited error did not apply, to the extent the court erred by accepting the stipulation instead of requiring plaintiffs to try their inverse condemnation cause of action on the Belair unreasonable conduct theory applicable to property damage caused by public flood control improvements, the error was harmless in light of the jury's finding that the County improvements at issue did not cause more water to flow onto plaintiffs' properties than otherwise would have. To establish prejudice, plaintiffs must show a reasonable probability that they would have obtained a more favorable outcome if they had pursued the unreasonable conduct theory. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) Specifically, plaintiffs must show that if they had tried their inverse condemnation cause of action on the theory that the County's unreasonable design, construction, or maintenance of flood control improvements was a substantial cause of their harm, there is a reasonable probability they would have obtained a more favorable outcome on that cause of action. Plaintiffs cannot make that showing because the jury's special finding (that the County's improvements at issue did not cause more water to flow onto their properties than would have if the improvements had not been built) established that the magnitude of the rainstorms resulting in the subject flooding was a superseding cause of plaintiffs' damages.
Plaintiffs do not challenge the sufficiency of the evidence to support that finding and we note the evidence amply supports it, particularly the testimony of the County's expert witness Ken Susilo, a civil engineer with expertise in hydrology.
Regarding the reasonableness standard applicable to flood control improvements, the Belair court stated: "[I]n order to establish a causal connection between the public improvement and the plaintiff's damages, there must be a showing of ' "a substantial cause-and-effect relationship excluding the probability that other forces alone produced the injury." [Citations.]' [Citation.] Where independently generated forces not induced by the public flood control improvement—such as a rain storm—contribute to the injury, proximate cause is established where the public improvement constitutes a substantial concurring cause of the injury, i.e., where the injury occurred in substantial part because the improvement failed to function as it was intended. 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." (Belair, supra, 47 Cal.3d at pp. 559-560.)
Here, the jury's special finding that the County's improvements did not cause more water to flow onto plaintiffs' properties than otherwise would have was supported by substantial evidence that the storm flows in question exceeded the capacity of the County-owned culverts and storm drains that functioned as part of a combined privately-owned, County-owned, and natural drainage system. Based on the jury's special finding, the magnitude of the rainstorms resulting in the subject flooding was a superseding cause of plaintiffs' damages regardless of whether the standard of liability for inverse condemnation is strict liability or Belair's reasonableness standard. Accordingly, even if the court had refused the stipulation and required plaintiffs to try their inverse condemnation cause of action on the theory that the County's unreasonable design, construction, or maintenance of flood control improvements was a substantial cause of their damages, it is not reasonably probable that plaintiffs would have succeeded in proving the causation element of that theory.
II. Judgment in Favor of the Oullettes and BHHOA
Plaintiffs in their opening brief do not raise any issue or assignment of error concerning the judgment in favor of the Oullettes or BHHOA. Plaintiffs cite a County ordinance that requires property owners to timely maintain any watercourse on their property and assert that the Oullettes and BHHOA were upstream property owners who "permitted reeds and vegetation to grow in the [Bonita Creek] channel[,]" and that "[t]he reeds and vegetation trap silt and slow the water."
Plaintiffs also assert that the Oullettes and BHHOA joined in the stipulation between plaintiffs and the County and benefitted from it. Plaintiffs' suggestion that the Oullettes and BHHOA are parties to the stipulation is apparently based on the fact that all parties signed the Joint Trial Readiness Conference Report, which contained the stipulation. However, the stipulation on its face is between plaintiffs and the County only, and presumably was signed only by plaintiffs and the County. A litigant who does not sign a stipulation is not a party to the stipulation. (Turner Gas Co. v. Workmen's Comp. Appeals Bd. (1975) 47 Cal.App.3d 286, 291-292.) Accordingly, the Oullettes and BHHOA did not become parties to the stipulation between plaintiffs and the County merely by signing the trial readiness conference report that contained the stipulation. Even if the Oullettes and BHHOA had signed the stipulation and thus could be deemed parties to it, plaintiffs have not explained how the stipulation affected the jury's verdict in favor of the Oullettes and BHHOA on plaintiffs' causes of action for negligence, nuisance, and negligent trespass, nor have they articulated any assignment of trial court error regarding those causes of action.
The court in its statement of decision on plaintiffs' inverse condemnation cause of action against the County stated that the stipulation was contained in the "Joint Trial Readiness Conference Report signed by all counsel . . . ." The Joint Trial Readiness Conference Report was not included in the record on appeal and thus we have not reviewed the actual stipulation.
In their reply brief, plaintiffs assert, for the first time, that the stipulation "created a grave injustice" and "undercut every cause of action asserted by [plaintiffs]" because it caused the trial court to fail to instruct the jury on "storm water law, drainage rights or the legal attributes of [Bonita Creek]." Noting that the jury was not instructed on "the law governing the duties of property owners who affect the flow of storm water[,]" plaintiffs argue that their cause of action for trespass "could not be understood without an appreciation of the rights and duties accompanying storm waters," and that "[t]he nuisance and negligence causes of action also require an explication of surface and storm water law to be meaningful." Plaintiffs contend we should review the jury instructions de novo and determine that plaintiffs did not receive a meaningful trial on these causes of action.
Preliminarily, it is well settled that a contention made for the first time in an appellant's reply brief, unaccompanied by any reason for its omission from the opening brief, is ordinarily deemed waived and disregarded on appeal because considering it either deprives the respondent of an opportunity to answer it or requires the effort and delay of an additional brief by permission. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764-765.) Although we need not address plaintiffs' claims of instructional error for that reason, we reject plaintiffs' suggestion that the trial court had a sua sponte duty to give jury instructions that plaintiffs did not request, and their contention that we should conduct a de novo review of the instructions given to determine whether plaintiffs received a "meaningful" trial. In a civil case, each of the parties must propose complete and comprehensive instructions in accordance with his theory of the litigation; if the parties do not do so, the court has no duty to instruct on its own motion.' [Citations.]" [Citation.] Neither a trial court nor a reviewing court in a civil action is obligated to seek out theories plaintiff might have advanced, or to articulate for him that which he has left unspoken.' " (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1130-1131.)
Plaintiffs identify only one instruction that they proffered and the court refused, namely an instruction entitled " 'Natural Creek' " that would have informed the jury that when a natural creek is used as part of a storm drain system that is a public project, the creek is part of that public project. Defense counsel opposed this instruction based on the stipulation that no public work at issue in this case was a flood control facility. After the court questioned why it was necessary to instruct the jury on the definition of a storm drain system given the stipulation, plaintiffs' counsel stated, "I don't think that [the 'Natural Creek'] instruction is critical in any way, shape or form." The court agreed and ruled that the instruction would not be given.
In any event, plaintiffs do not explain how the stipulation that no County improvements at issue in this case were flood control improvements for purposes of their inverse condemnation cause of action caused the omission of any jury instructions relevant to their causes of action for negligence, nuisance, and trespass, or affected the jury's findings that none of the defendants were negligent, created a nuisance, or committed negligent trespass. As the Oullettes and BHHOA point out in their respondents' briefs, there was substantial evidence to support those findings and plaintiffs have not contended otherwise.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
HALLER, Acting P. J. WE CONCUR:
MCDONALD, J.
O'ROURKE, J.