Arreola v. County of Monterey

• Decision Date: 25 June 2002
• Docket Number: No. H021339.,H021339.
• Citation: 99 Cal.App.4th 722,122 Cal.Rptr.2d 38
• Court: California Court of Appeals Court of Appeals
• Parties: James ARREOLA et al., Plaintiffs and Respondents, v. COUNTY OF MONTEREY et al., Defendants and Appellants. [And five other matters].<SMALL><SUP>*</SUP></SMALL>

122 Cal.Rptr.2d 38

99 Cal.App.4th 722

James ARREOLA et al., Plaintiffs and Respondents, v. COUNTY OF MONTEREY et al., Defendants and Appellants. [And five other matters].^*

No. H021339.

Court of Appeal, Sixth District.

June 25, 2002.

As Modified on Denial of Rehearing July 23, 2002.

Review Denied September 18, 2002.

Lepper & Harrington, Gary M. Lepper, Matthew P. Harrington, Walnut Creek, Santa Cruz County Counsel, Samuel Torres, Jr., for Defendants/Appellants: County of Santa Cruz and Santa Cruz County Flood Control and Water Conservation District.

Bruce A. Behrens, Sacramento, David Gossage, Janet Wong, Lucille Y. Baca, San Francisco, for Defendant/Appellant: State of California.

McDonough, Holland & Allen, Kronick, Moskovitz, Tiedemann & Girard, Mark A. Wasser, Andrew P. Pugno; and Adrienne M. Grover, County Counsel, Monterey County, for Defendants/Appellants: Monterey County, Monterey County Water Resources Agency.

Morrison & Foerster, James P. Bennett, George C. Harris, Andrew D. Muhlbach, John A. Pacheco, San Francisco, Law Offices of Haselton & Haselton, Joseph G. Haselton, Soquel, Carlson, Calladine & Peterson, Randy W. Gimple, San Francisco, Johnson & James, Omar F. James, Robert K. Johnson, Aptos, for Plaintiffs/Respondents: James Arreola et al.

PREMO, Acting P.J.

Defendants, County of Santa Cruz, Santa Cruz County Flood Control and Water Conservation District (collectively, Santa Cruz), Monterey County Water Resources Agency (MCWRA), and County of Monterey (Monterey), were found liable in tort and inverse condemnation for extensive damage caused when the Pajaro River Levee Project (the Project) failed during a heavy rainstorm in 1995. Defendant, State of California (State) was also found liable in tort and inverse condemnation for damage caused when Highway 1 obstructed the path of the floodwater on its way to the sea. For reasons we shall explain, we affirm.

A. INTRODUCTION

This action commenced with the filing of six different complaints on behalf of approximately 300 plaintiffs. The essence of plaintiffs' claims against Santa Cruz, MCWRA, and Monterey was that their failure to keep the Project channel clear diminished its capacity and ultimately caused a levee to fail during the storm. As against State, plaintiffs alleged that the drainage culverts under Highway 1 were too small to drain the flood and the resultant damming effect caused higher flood levels and destructive ponding of the floodwater.

The individual matters were consolidated, and the liability and damages phases were bifurcated for trial. The tort causes of action were tried to a jury. The inverse condemnation claims were simultaneously tried to the court. The jury found all defendants liable for dangerous condition of public property and nuisance. The counties and the water agencies were also found liable for negligence, and, with the exception of Monterey, for violation of mandatory duty. The trial court found all defendants liable on the inverse condemnation claims.

In order to obtain review of the liability issues prior to trial of the damages phase the parties selected Tony's Auto Center as a representative plaintiff and stipulated to damages as to that plaintiff only. Judgment in favor of Tony's Auto Center was filed January 6, 2000. The county and water agency defendants jointly moved for a new trial and that motion was denied. All defendants filed timely notice of appeal.¹

B. FACTS

1. The Project

The Pajaro River is formed by the union of several smaller tributaries in the counties of San Benito and Santa Clara. It flows through Chittenden Pass in the Santa Cruz Mountains and emerges into the Pajaro Valley, eventually emptying into Monterey Bay. The river forms the border between the counties of Santa Cruz on the north and Monterey on the south. The Pajaro Valley is an historic flood plain. Today, most of the valley is devoted to agriculture. Its two population centers are the City of Watsonville on the Santa Cruz side of the river, and the small town of Pajaro just across the river from Watsonville on the Monterey side.

The federal Flood Control Act of 1944 (Public Law No. 534, ch. 665 (Dec. 22, 1944) 58 Stat. 887), authorized the United States Army Corps of Engineers (the Corps) to construct the Project upon receipt of assurances from the responsible local agencies that they would, among other things, operate and maintain the Project as the Corps required. The California Water Resources Act authorized the state's portion of the project and directed the four affected counties (Santa Clara, San Benito, Santa Cruz, and Monterey) to give the required written assurances. (Stats.1945, ch. 1514, p. 2827.) Before the counties took any action, the California Legislature created the Monterey County Flood Control and Water Conservation District, and the new district replaced Monterey for purposes of the Water Resources Act. (Stats.1947, ch. 699, §§ 2, 4, p. 1739.) MCWRA succeeded to the responsibilities of the Monterey County Flood Control and Water Conservation District in 1990. (Stats.1990, ch. 1159, p. 4831.)

In 1947, the three counties and Monterey County Flood Control and Water Conservation District signed a resolution giving the assurances required by the federal Flood Control Act. Shortly thereafter, Monterey joined the other three counties in executing an indemnity agreement under which each county accepted responsibility for the portion of the Project located within its borders, and guaranteed as to each other the assurances that had been given to the Corps.

2. Maintenance of the Project

The Project design consisted primarily of clearing the river channel and constructing earthen levees along both sides of the river, beginning near Murphy's Crossing east of Watsonville and extending westward to the mouth of the river. The Corps completed the Project in 1949 and transferred responsibility for its maintenance to the local interests. The Corps provided an "Operation and Maintenance Manual" to guide maintenance efforts. One goal of maintenance was to maintain the Project's capacity. Federal regulations, which were incorporated into the manual, specified that the channel be kept clear of shoals, weeds and wild growth. (See 33 C.F.R., § 208.10(g)(1).) Vegetation and shoals in the channel decrease its capacity. Therefore, it was important to keep the channel clear in order to maintain the capacity it was intended to have.

The Corps had designed the Project to have a capacity of 19,000 cubic feet per second (c.f.s.). The Corps' 1946 "Definite Project Report" stated that the Project would be built to "contain a two-per-cent-chance flood within a 3 foot freeboard." The "freeboard" to which the report refers is the distance from the top of the levee to the surface of the water at the level the project is designed to carry. Freeboard is included as a safety feature. It provides additional capacity to take care of unforeseen factors, although it is not intended to contain water for long periods of time. The Corps' report explained: "The channel capacity will be 19,000 c.f.s. above the mouth of Corralitos Creek [the point at which the Project failed in 1995]...."² The Corps' documents pointed out that by encroaching on the freeboard the Project would hold 23,000 c.f.s. at the pertinent location and still have one foot of free-board remaining. That means that the Project was designed to contain 19,000 c.f.s. at the point at which the Project ultimately failed, and, if unaccounted factors had not diminished the channel's capacity, there would still be room to safely carry, at least for a short period of time, an additional 4,000 c.f.s.

From 1949 until 1972, the vegetation and sandbars were removed with a tractor and a bulldozer. The effectiveness of these channel clearing efforts was demonstrated by the Project's performance during two storms in the 1950's. In a 1955 storm, the Chittenden³ gauge reported flows of 24,000 c.f.s. Even with such a high flow there remained over two feet of freeboard near the point where the levee failed in 1995. In 1958 the Project contained flows of 23,500 c.f.s., although with slightly less freeboard remaining.

The continuous mechanized clearing of the channel stopped around 1972. The California Department of Fish and Game (Fish and Game) had demanded a halt to mechanical clearing of the channel in order to protect the riparian habitat. In an apparent attempt to conform to both the demands of Fish and Game and the Corps' Project maintenance requirements, Santa Cruz began using herbicides to kill the vegetation in the channel. Without regular mechanized clearing, however, vegetation and sandbars built up, impeding the flow of winter runoff. As the Project deteriorated, it reverted more and more to riparian habitat, which in turn encouraged the claim of Fish and Game to jurisdiction over the Project. Although Fish and Game had procedures by which the local agencies could appeal the department's decisions, the local agencies never appealed.

In addition to Fish and Game, local environmental interests made thorough maintenance of the channel more challenging by actively supporting efforts to preserve the river's habitat. In 1976, Supervisor Gary Patton wrote to the Legislature on behalf of the Santa Cruz County Board of Supervisors to support Fish and Game policies and to encourage strong legislation to protect river habitat and regulate streambed alteration. In 1977, the County of Santa Cruz adopted an ordinance designed to "preserve, protect and restore riparian corridors." In 1980, the county Fish and Game Commission was given authority to restore fishery habitat in the Pajaro River, and to review public works projects that involved any alteration of the streambed or of streamside vegetation.

As the channel became more clogged, thorough clearing became more expensive. The passage of Proposition 13 in 1978 made funding more of a problem in general so that through the 1980's the Santa...