74 Cal.App.4th 1231C, Paterno v. State of California

Decision Date11 August 1999
Docket NumberC016505,Nos. C013846,C019267,s. C013846
Citation87 Cal.Rptr.2d 754,74 Cal.App.4th 68
CourtCalifornia Court of Appeals Court of Appeals
PartiesC, 74 Cal.App.4th 68, 99 Cal. Daily Op. Serv. 6535, 99 Cal. Daily Op. Serv. 7606, 1999 Daily Journal D.A.R. 8231 Peter PATERNO et al., Plaintiffs and Appellants, v. STATE of California et al., Defendants and Appellants. Peter Paterno et al., Plaintiffs and Appellants, v. State of California et al., Defendants and Respondents. Peter Paterno et al., Plaintiffs and Respondents, v. State of California et al., Defendants and Appellants.

Goldstein & Goldstein, Burton J. Goldstein, San Francisco, Minasian, Spruance, Baber, Soares and Sexton, Michael V. Sexton, Oroville, Stanley Bell, Sally Bechtold, Thomas K. Caselli, San Francisco, Gordon & Rees, David Collins, Douglas B. Harvey, San Francisco, Desmond, Miller & Desmond, Gary Livaich, Sacramento, Robins, Kaplan, Miller & Ciresi, Stefanie M. Brown, Lynn J. Grano, San Francisco, Kronick, Moskovitz, Tiedemann & Girard and Lloyd Hinkelman Sacramento, for Plaintiffs and Appellants in C013846 and C016505 and Plaintiffs and Respondents in C019267.

Daniel E. Lungren and Bill Lockyer, Attorneys General, Robert L. Mukai, Chief Assistant Attorney General, Darryl L. Doke, G. Michael Gates, Seward L. Andrews and Thomas K. McGuire, Deputy Attorneys General, Arostegui, Cooke, Gengler & Jones, and G. Steven Jones, Yuba City, for Defendants and Appellants in C013846 and C019267 and Defendants and Respondents in C016505.

MORRISON, J.

Property owners sued the State of California (the State, which includes the Sacramento and San Joaquin Drainage District), Reclamation District 784 (the District) and others no longer in the case, seeking damages after a levee failed. Sample plaintiffs (Paterno) lost on some theories, but won on an inverse condemnation (takings) theory. In related appeals, defendants appeal and Paterno cross-appeals. The takings count must be retried because of changes in the law and because Paterno proceeded on an erroneous legal theory. We uphold the jury's defense verdict on Paterno's theory of dangerous condition of public property. The trial court's refusal to allow the jury to consider a nuisance theory was erroneous under existing precedent, but Paterno has not shown prejudice. We address a few other issues and reverse with directions.

We have seriously considered the requests by the State and the District that we reverse with directions to enter a defense judgment on the inverse condemnation claim, based on the paucity of relevant evidence in the record and the likelihood Paterno will not prevail. (Burtis v. Universal Pictures Co., Inc. (1953) 40 Cal.2d 823, 835, 256 P.2d 933; Mid-Century Ins. Co. v. Gardner (1992) 9 Cal.App.4th 1205, 1220, 11 Cal.Rptr.2d 918 [party "marshalled the best case it could at trial. Under these circumstances, it is proper for us to direct that judgment be entered in favor of the defendant"].) However, "Unless this court can satisfy itself from the record as to the ultimate rights of the parties, it will not undertake in reversing a judgment to finally settle the same." (Pollitz v. Wickersham (1907) 150 Cal. 238, 251, 88 P. 911.) As will be shown, Paterno has a long row to hoe before he can prevail, if ever. However, it is possible there are facts which would support a judgment in favor of Paterno, accordingly, it would not be appropriate to end the lawsuit at this time.

The case was protracted and bitterly fought. The procedural details are convoluted but largely unimportant. Because defendants obtained a jury verdict finding no dangerous condition of property and Paterno obtained a court finding of takings liability -- based on the exact same evidence -- the familiar rule that evidence will be viewed in favor of the winning party (Bancroft-Whitney Co. v. McHugh (1913) 166 Cal. 140, 142, 134 P. 1157) operates for and against each side. This apparent anomaly is not unknown. (See Aetna Life & Casualty Co. v. City of Los Angeles (1985) 170 Cal.App.3d 865, 872, 216 Cal.Rptr. 831 (Aetna Life ).) Appellate procedural requirements, such as use of headings and citations, must be more strictly enforced as the size of the record grows. (See Akins v. State of California (1998) 61 Cal.App.4th 1, 17, fn. 9, 71 Cal.Rptr.2d 314 (Akins ).) Paterno describes the record as "nearly 52,000 pages of appellate transcripts, hundreds of exhibits contributing thousands of additional pages ... and over 800 pages of briefing." This was before we solicited further briefing from the parties.

FACTUAL BACKGROUND

In the Sacramento Valley, flooding is frequent and severe. (See S. Field, Personal Reminiscences (1893) p. 13 [1850 flood described by Supreme Court justice].) We recount in Beckley v. Reclamation Board (1962) 205 Cal.App.2d 734 at pages 739-741, 23 Cal.Rptr. 428 how hydraulic gold mining altered the rivers and valley floor, until enjoined (Woodruff v. North Bloomfield G.M. Co. (C.C.D.Cal.1884) 18 Fed. 753, 9 Sawy. 441) and regulated. (See Gray v. Reclamation Dist. No. 1500 (1917) 174 Cal. 622, 626-633, 163 P. 1024; J. McPhee, Assembling California (1993) pp. 66-67; J.S. Holliday, Rush for Riches (1999) pp. 253-299 [describing damage and tracing battle between farmers and miners].) In February 1986, a tropical weather system brought much warm rain, which in turn caused snow melt.

According to a report prepared by the State and introduced into evidence by Paterno, "The major storm that devastated portions of northern and central California in February 1986 was in some ways the greatest storm of record. [p] Flooding and heavy rains raged through the state for more than a week, from California's north coast to the San Joaquin Valley, causing damage over more than half the state. Much of California received more than half its normal year's supply of rain during the 10-day storm. Bucks Lake in the Feather River Basin received 49.6 inches of rain. [p] The Governor proclaimed a state of emergency in 39 counties and damages totaled more than $500 million. More than 50,000 people were forced from their homes, and at least 12 people died. An estimated 1,380 homes and 185 businesses were destroyed, and more than 12,000 homes and 950 businesses were damaged."

The Yuba River crested on February 19, 1986, and then receded. The Yuba joins the Feather River near the twin cities of Marysville and Yuba City. At Linda, just upstream of the confluence, a District levee held back the waters.

Generally speaking, the District maintains a number of miles of levees and is funded by assessments from property owners within its boundaries. The Linda levee is within the District, but is also under the jurisdiction of the State of California, because it is a part of the larger Sacramento River Flood Control Project (Project, sometimes SRFCP). "In 1953, the SRFCP works were transferred to the state. A memorandum of understanding confirmed the state's obligation to operate and maintain all completed works of the SRFCP and to hold the federal government harmless. The state turned the levees over to the local district for maintenance and operation but maintained responsibility for the project." (Akins, supra, 61 Cal.App.4th at p. 11, 71 Cal.Rptr.2d 314.) The federal and state governments enforce flood control standards within the Project, including Project levee standards. If a local reclamation district fails to adhere to these standards, the State is obliged to take control. (Wat.Code, § 12878 et seq.) The Linda levee was originally built in 1904 by Yuba County, and transferred to the District, which was formed in 1907-1908. (See Irvine v. Bossen (1944) 25 Cal.2d 652, 653, 155 P.2d 9.) The Linda levee ultimately became a "Project levee" and was improved by the United States Army Corps of Engineers in 1934 and in 1941.

In the rains of 1955 and 1964, the Linda levee survived waters equal to or exceeding the 1986 levels. Paterno concedes that before the levee, the area was subject to historic flooding, and states the levee last failed in 1906. Other flooding occurred in 1881 and 1883, partly due to hydraulic mining. (See Woodruff, supra, 18 Fed. at p. 766, 9 Sawy. at p. 484.)

Project levees are inspected twice a year by the State. The inspection reports for the levee were consistently favorable, and the Linda levee was given the highest rating -- "outstanding" -- in the November, 1985 inspection, the last inspection before the flood. But Paterno alleges the Linda levee was riddled with rodent burrows, which encourage boils. A boil results when water is piped from the riverside of the levee to the landside. Some boils simply carry water, but some carry soil with the water, which strips support from the levee. Paterno alleges the Linda levee was sandy and prone to this type of damage and alleges it contained a forgotten concrete pipe and related structures, which encouraged rodent burrows and which could hasten the piping of water and sand from the heart of the levee. As one expert put it, the stream deposits in that area "can deliver large and damaging quantities of water on the land side of levees." Further, a nearby gravel pit (the "Speckert Pit") allegedly pierced the subsurface layers and allowed water to flow beneath the levee. The State granted variances to allow deeper digging of the Speckert Pit and later removed a "backfilling" requirement. It appears the area of the pit flooded in the 1955 and 1964 rains, when water backed into it. Paterno produced evidence that water in the pit could flow into "historic channels" at the site of the failure. Paterno alleged the levee was poorly inspected and maintained, with poor rodent and vegetation control practices, and it was not patrolled properly.

On the afternoon of February 20, Eddie Bolton rode his bicycle on the top of the levee and saw boils on the landside. By then the water had receded...

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