Albers v. Los Angeles County

• Citation: 42 Cal.Rptr. 89,62 Cal.2d 250,398 P.2d 129
• Court: United States State Supreme Court (California)
• Decision Date: 22 January 1965
• Parties: , 398 P.2d 129 Charles B. ALBERS, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Appellant. PALOS VERDES WATER COMPANY, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Appellant. RANCHO PALOS VERDES CORPORATION et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES, Defendant and Appellant (two cases). L. A. 27930-27933. . In Bank

Page 89

42 Cal.Rptr. 89

62 Cal.2d 250, 398 P.2d 129

Charles B. ALBERS, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Appellant.

PALOS VERDES WATER COMPANY, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Appellant.

RANCHO PALOS VERDES CORPORATION et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES, Defendant and Appellant (two cases).

L. A. 27930-27933.

Supreme Court of California. In Bank.

Jan. 22, 1965.

As Modified on Denial of Rehearing Feb. 17, 1965.

Lillick, Geary, McHose, Roethke & Myers, Lillick, Geary, McHose & Roethke, John C. McHose, Anthony Liebig and David Brice Toy, Los Angeles, for plaintiff and appellant Charles B. Albers.

Pollock & Deutz, John P. Pollock and Samuel C. Palmer, III, Los Angeles, for plaintiffs and appellants Palos Verdes Water Co., Rancho Palos Verdes Corp. and others.

P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein and Reginald M. Watt, Chico, as amici curiae on behalf of plaintiffs and appellants.

Harold W. Kennedy, County Counsel, and Lloyd S. Davis, Chief Trial Deputy County Counsel, for defendant and appellant.

Harry S. Fenton, Sacramento, R. B. Pegram, Richard L. Franck and Charles E. Spencer, Jr., Los Angeles, as amici curiae on behalf of defendant and appellant.

DOOLING, Justice.*

In these four consolidated actions the plaintiffs, on the theory of inverse condemnation, were awarded judgments aggregating $5,360,000. The county's appeals are taken on a clerk's transcript so that the county cannot and does not contend that the findings are not supported by the evidence. A number of the plaintiffs have also appealed from the judgments. Those appeals will be considered after disposing of the questions raised on the county's appeals.

The litigation grows out of a major landslide which commenced in 1956, and is still continuing, in the Portuguese Bend area of the Palos Verdes Hills, situate along the southerly coastline of the Los Angeles Basin. Palos Verdes Hills form a peninsula which extends into the Pacific Ocean east of Santa Monica and west of San Pedro. Portuguese Bend is a small bay or inlet situate between two minor peninsulas (Portuguese Point and Inspiration Point) on the southerly coastline of the larger peninsula. The Portuguese Bend area also includes Portuguese Canyon, which extends north from the inlet to the crest of the Palos Verdes Hills. In the twenties development commenced in the area, resulting in the establishment and construction of both residential sites and a yacht club (the latter including summer home sites). By the early fifties, a large portion of this land had been improved and built upon, and an additional area was being held for subsequent subdivision. However, no direct access from the main Los Angeles Basin (i. e., southerly through the Palos Verdes Hills) had been provided, and access was only along the coast road (Palos Verdes Drive South) from Santa Monica or San Pedro. In the thirties, the County of Los Angeles commenced planning the extension of Crenshaw Boulevard (then Prairie Avenue) from the metropolitan area southerly through Palos Verdes Hills to connect with the coast road near Portuguese Bend. Such planning was with the concurrence and cooperation of the then owners of the larger tracts being developed and to be developed. However, World War II intervened, and it was not until the late forties and early fifties that planning was resumed. The various corporations interested in developing the area gave the county written grants of easement required for the road as planned at that time, and further granted oral approval of changes as the work progressed.

A well-defined portion of the Portuguese Bend area, extending approximately 1 1/4 miles along the coast and 3/4 of a mile inland (toward the crest of the hills), constitutes a prehistoric slide area. That fact was known to geologists prior to the first development in the twenties, and is the subject of a federal government geological report published in 1946. According to that report, which was known to both the county and the developers, the prehistoric slides were due to slippage on a plane of betonitic strata which underlay the surface at varying depths, but inclined at an angle roughly parallel thereto, from the crest of the hills to a line far offshore. Although the ground indicated a series of both major and localized slides at various prehistoric times, no slide was believed to have occurred within the past several thousand years. The experts believed the area to be at rest, and did not anticipate further sliding unless something occurred to either increase the pressure upon the slippage plane, or remove the forces which were being exerted to hold the upper layer in place.

In 1956 a slide was triggered in the northeast corner of the area as a result of pressure exerted by some 175,000 cubic yards of dirt which was placed both in the road easement and (with the consent of the developers) on either side of the easement. Within a short time that slide spread, extending to almost the entire prehistoric slide area. That area is still moving slowly toward the ocean, causing the damages of which complaint is made.

The plaintiffs consist of the corporations which own both developed and undeveloped areas affected by the slide (including the yacht club), the Palos Verdes Water Company, whose water distribution system was damaged by the slide, any many residents whose homes were destroyed or damaged. The complaints alleged causes of action predicated on a theory of negligence, as well as causes of action based on inverse condemnation. By way of answer (and in some instances cross-complaint) the county denied liability under both theories, and alleged contributory negligence of the various plaintiffs, and fraudulent concealment of fact on the part of the developers.

The trial judge, having specifically found an absence of negligence or contributory negligence on the part of any party, and having also found that the evidence did not include the necessary elements of a nuisance, concluded that all plaintiffs (including the developers) were entitled to judgment against the county on the theory of inverse condemnation. Once that decision was made the parties stipulated to the various items of damage included in the judgments, the various judgments totaling $5,360,000.

The county's chief contention on appeal is that since the trial court's findings negated the possibility of a recovery on the grounds of negligence, nuisance or trespass, plaintiffs would have been unable to prevail had the defendant been a private individual whose actions were identical to those of the county herein; and that under prevailing authority there is no liability on the theory of inverse condemnation where, under the same facts, there would be no cause of action against a private individual.

This contention requires us to interpret article I, section 14, of the California Constitution, which provides: 'Private property shall not be taken or damaged for public use without just compensation * * *.'

The county relies for a reversal on a rule of construction of the 'or damaged' provision of this section of the Constitution first clearly enunciated by this court in Archer v. City of Los Angeles, 19 Cal.2d 19, 24, 119 P.2d 1, 4: ¹

The provision permits an action against the state, which cannot be sued without its consent. It is designed, not to create new causes of action, but to give a remedy for a cause of action that would otherwise exist. The state is therefore not liable under this provision for an injury that is damnum absque injuria. If the property owner would have no cause of action were a private person to inflict the damage, he can have no claim for compensation from the state. (Citations. ²) In the present case, therefore, plaintiffs have no right to compensation under article 1, section 14 if the injury is one that a private party would have the right to inflict without incurring liability.'

This rule of construction of the 'or damaged' provision has since been restated by this court in the following cases: Clement v. State Reclamation Board, 35 Cal.2d 628, 636, 220 [62 Cal.2d 257] P.2d 897; Bauer v. County of Ventura 45 Cal.2d 276, 283, 289 P.2d 1; People ex rel. Department of Public Works v. Symons, supra, 54 Cal.2d 855, 862, 9 Cal.Rptr. 363, 357 P.2d 451; Youngblood v. Los Angeles County Flood Control Dist., 56 Cal.2d 603, 608, 15 Cal.Rptr. 904, 364 P.2d 840; and by Traynor, J., concurring in House v. Los Angeles County Flood Control Dist., 25 Cal.2d 384, 393, 394, 153 P.2d 950, and dissenting in Bacich v. Board of Control, 23 Cal.2d 343, 366, 376, 144 P.2d 818.

The successful plaintiffs, as did the trial judge, rely upon a rule stated in the first case in our Supreme Court to construe the words 'or damaged' after they were placed in the Constitution of 1879, Reardon v. City and County of San Francisco, 66 Cal. 492, 505, 6 P. 317, 325, where it was said:

'We are of opinion that the right assured to the owner by this provision of the constitution is not restricted to the case where he is entitled to recover as for a tort at common law. If he is consequently damaged by the work done, whether it is done carefully and with skill or not, he is still entitled to compensation for such damage under this provision. This provision was intended to assure compensation to the owner as well where the damage is directly inflicted, or inflicted by want of care and skill, as where the damages are consequential, and for which damages he had no right of recovery at the common law.'

The Reardon case has been frequently cited and the above language sometimes quoted by this court and the District Courts of Appeal through the intervening years.

In Tyler v. Tehama County, 109 Cal. 618, 42 P. 240, this court reversed a judgment for defendant entered after sustaining a demurrer to the amdnded complaint. The complaint alleged that...