Csaa v. City of Palo Alto

• Decision Date: 10 April 2006
• Docket Number: No. H027980.,H027980.
• Citation: 138 Cal.App.4th 474,41 Cal.Rptr.3d 503
• Court: California Court of Appeals Court of Appeals
• Parties: CALIFORNIA STATE AUTOMOBILE ASSOCIATION INTER-INSURANCE BUREAU, Plaintiff and Appellant, v. CITY OF PALO ALTO, Defendant and Respondent.

41 Cal.Rptr.3d 503

138 Cal.App.4th 474

CALIFORNIA STATE AUTOMOBILE ASSOCIATION INTER-INSURANCE BUREAU, Plaintiff and Appellant, v. CITY OF PALO ALTO, Defendant and Respondent.

No. H027980.

Court of Appeal, Sixth District.

April 10, 2006.

Buresh, Kaplan, Jang & Feller, Alan J. Jang, Ramon M. Gonzalez, for Plaintiff and Appellant California State Automobile Association Inter-Insurance Bureau.

City of Palo Alto, Office of the City Attorney, Gary M. Baum, City Attorney, William B. Mayfield, Senior Assistant City Attorney, for Defendant and Respondent City of Palo Alto.

RUSHING, P.J.

In this case, California State Automobile Association Inter-Insurance Bureau (CSAA) appeals a judgment following a court trial in which the court found respondent City of Palo Alto (City) was not liable for property damage resulting from a sewage backup into a private home under the theory of inverse condemnation.

STATEMENT OF THE FACTS AND CASE

CSAA is the homeowners' insurance carrier for David and Suzanne McKenna for their residence located on Maybell Way in the City of Palo Alto. The McKennas suffered property damage as a result of two separate raw sewage backups into their home that occurred over a two month period in 2001. CSAA paid the McKennas' claims, and subsequently brought an action as subrogee against the City under theories of inverse condemnation, trespass, nuisance and premises liability.

The sewer main servicing the McKennas' property was constructed in approximately 1959 when the subdivision containing their home was developed, and consists of clay pipe segments six inches in diameter on the inside and joined in a bell and spigot design sealed with concrete packed into the bell ends of the pipe segments. The main begins from a manhole in the center of the cul-de-sac turnaround of Maybell Way and continues at another manhole located at the intersection of Maybell Way and Maybell Avenue. The slope of the main is .455 percent. The McKennas' sewage is carried away from their home via a lateral sewer pipe, four inches in diameter, that connects to the main sewer pipe in the center of the street.

On November 6, 2001, the McKennas' sewer line backed up, causing raw sewage to enter their home. As a result, the home was damaged extensively, and the McKennas temporarily moved out until repairs could be completed. On the day of the backup, CSAA retained Express Plumbing, which did a video inspection and found that the backup was caused by tree root intrusion in the sewer lateral located on the McKennas' property. The existing lateral was porous clay material that allowed the tree root intrusion. CSAA authorized Express Plumbing to replace the McKennas' portion of the lateral, which extends from the house to the sidewalk, as well as the City's portion of the lateral that extends from the sidewalk to the main sewer line under the street. The replacement of the City's portion was completed on November 20, 2001, after Express Plumbing received the necessary permits. The replaced lateral was constructed of nonporous polyethylene pipe, and consisted of a single piece of pipe with no joints or connections except at the ends.

On December 4, 2001, after the repairs were complete, the McKennas moved back into their home. Almost immediately thereafter, the home was again flooded with raw sewage. CSAA hired Spectrum Leak Locators (Spectrum) to investigate the cause of the backup. Spectrum conducted a video inspection and found the replaced lateral pipe to be clear of debris and in "perfect" condition. Spectrum found that a day after the December 4th sewage backup, there were tree roots intruding into the City's "wye"¹ joint connecting the McKennas' lateral to the City's main. The video inspection also revealed that there was toilet paper and effluent on the tree roots in the main, and that the main was half filled with standing water, with tree roots penetrating at every eight foot joint.

Following payment of the McKennas' claims for property damage resulting from the second sewage backup in December 2001, CSAA filed suit as subrogee of the McKennas in an action against the City under theories of inverse condemnation, trespass, nuisance and negligence. CSAA did not request reimbursement for the payments it made in regard to the November 2001 backup; rather, it claimed the City was liable only for the second backup that occurred in December 2001. Both sides waived jury, and the matter was tried before the court.

CSAA provided evidence of three potential causes of the sewage backup that occurred in December 2001. The three possible causes were (1) the existence of tree roots invading the porous clay pipe of the sewer main as observed by the video inspection conducted by Spectrum; (2) the .455 percent slope of the main that CSAA's plumbing expert testified was insufficient to effectively carry sewage away from homes; and (3) the existence of standing water filling one half of the main, as observed by video inspection one day after the December 2001 backup.

The City presented evidence that its maintenance program for the sewer main was to hydroflush it every two years. This process involves the use of a hose with high pressure water to scour the inside of the pipe, removing all invading tree roots. The sewer main on Maybell Way was hydroflushed on June 28, 2000, one and a half years prior to the November 2001 backup, and had a regular schedule of being hydroflushed every two years going back to 1983.

The evidence presented at trial demonstrated that the only sewage overflows that occurred on Maybell Way were to the McKenna home in November and December 2001; there was no evidence of any prior or subsequent sewer overflows into residences on Maybell Way.

At the conclusion of the court trial, the court ruled in favor of the City. In its statement of decision, the court found that although the sewage backup was caused by a blockage in the City's sewer main, CSAA failed to prove "how or why any such blockage in the City's main occurred."

CSAA filed a timely notice of appeal.

DISCUSSION

CSAA asserts on appeal that the trial court erred in requiring it to prove fault in its inverse condemnation action against the City for causing the damage to the McKennas' home.

In this case, both parties agree that all three standards of appellate review apply. CSAA's claim that the trial court misapplied the California Constitution and required it to prove negligence in its inverse condemnation action is a question of law, and will be reviewed de novo. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799, 35 Cal.Rptr.2d 418, 883 P.2d 960.) With regard to CSAA's remaining claims that there was insufficient evidence presented at trial to support the trial court's judgment in favor of the City, and that the trial court erred in disregarding its evidence regarding the causation of the blockage in the City's main, we will apply the substantial evidence and abuse of discretion standards of review respectively. (See Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, 68 Cal.Rptr.2d 758, 946 P.2d 427; Blank v. Kirwan (1985) 39 Cal.3d 311, 331, 216 Cal.Rptr. 718, 703 P.2d 58.)

Under the California Constitution, article I, section 19, property may not be taken or damaged for public use without just compensation to the owner. This provision is the authority for both proceedings initiated by the public entity to "take[]" property—otherwise known as "eminent domain"—and those initiated by the property owner for just compensation as a result of a taking—otherwise known as "inverse condemnation." (San Diego Metropolitan Transit Development Bd. v. Handlery Hotel, Inc. 73 Cal.App.4th 517, 529, 86 Cal.Rptr.2d 473.)

A property owner may recover just compensation from a public entity for "any actual physical injury to real property proximately caused by [a public] improvement as deliberately designed and constructed . . . whether foreseeable or not." (Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 263-264, 42 Cal.Rptr. 89, 398 P.2d 129 (Albers); Holtz v. Superior Court (1970) 3 Cal.3d 296, 303, 90 Cal. Rptr. 345, 475 P.2d 441.) Inverse condemnation lies where damages are caused by the deliberate design or construction of the public work; but the cause of action is distinguished from, and cannot be predicated on, general tort liability or a claim of negligence in the maintenance of a public improvement. (Hayashi v. Alameda County Flood Control (1959) 167 Cal. App.2d 584, 591-592, 334 P.2d 1048; Yox v. City of Whittier (1986) 182 Cal.App.3d 347, 352, 227 Cal.Rptr. 311 (Yox); see, e.g. Customer Co. v. City of Sacramento (1995) 10 Cal.4th 368, 382, 41 Cal.Rptr.2d 658, 895 P.2d 900 [a public entity cannot be subject to "`general tort liability under theory of eminent domain'"].) But, damage caused by the public improvement as deliberately conceived, altered, or maintained may be recovered. (Barham v. Southern Cal. Edison Co. (1999) 74 Cal.App.4th 744, 754, 88 Cal.Rptr.2d 424.)

To be compensable, the taking must be for a public use. (Cal. Const., art. 1, § 19; Yox, supra, 182 Cal.App.3d at p. 352, 227 Cal.Rptr. 311.) Indeed, the policy basis for the payment of just compensation is a consideration of "`whether the owner of the damaged property if uncompensated would contribute more than his proper share to the public undertaking.'" (Albers, supra, 62 Cal.2d at p. 262, 42 Cal.Rptr. 89, 398 P.2d 129.) For purposes of inverse condemnation, "public use" is that which "concerns the whole community or promotes the general interest in its relation to any legitimate object of government." (Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345, 358, 28 Cal.Rptr. 357.)

Here, there is no dispute as to three of the elements of the inverse condemnation: (1) the McKennas owned the real property that was damaged by the sewage backup; (2) the Mckennas' property was taken or damaged; and (3) the City's sanitary sewer drain system was a public project. The issue in this...