Deckert v. County of Riverside

• Decision Date: 11 February 1981
• Citation: 171 Cal.Rptr. 865,115 Cal.App.3d 885
• Court: California Court of Appeals Court of Appeals
• Parties: Raphael K. DECKERT et al., Plaintiffs, v. COUNTY OF RIVERSIDE, etc., et al., Defendants. NORTHWOODS CONSTRUCTION CO., INC., a corporation; Foothill Service Corp., a corporation; and Northwood Mira Loma, a joint venture, Defendants, Cross-Complainants and Appellants, v. PETROLANE PROPERTIES, INC., Cross-Defendant and Respondent. COUNTY OF RIVERSIDE, Defendant, Cross-Complainant and Appellant, v. PETROLANE PROPERTIES, INC., Cross-Defendant and Respondent. Civ. 23394.

Page 865

171 Cal.Rptr. 865

115 Cal.App.3d 885

Raphael K. DECKERT et al., Plaintiffs, v. COUNTY OF RIVERSIDE, etc., et al., Defendants.

NORTHWOODS CONSTRUCTION CO., INC., a corporation; Foothill Service Corp., a corporation; and Northwood Mira Loma, a joint venture, Defendants, Cross-Complainants and Appellants, v. PETROLANE PROPERTIES, INC., Cross-Defendant and Respondent.

COUNTY OF RIVERSIDE, Defendant, Cross-Complainant and Appellant, v. PETROLANE PROPERTIES, INC., Cross-Defendant and Respondent.

Civ. 23394.

Court of Appeal, Fourth District, Division 2, California.

Feb. 11, 1981.

Best, Best & Krieger, Barton C. Gaut and William J. Cahill, Riverside, for defendants, cross-complainants and appellants Northwoods Const. Co., Inc., Foothill Service Corp., and Northwood Mira Loma.

Roberts, Harrison & Dougherty and H. M. Dougherty, Riverside, for cross-complainant, defendant and appellant County of Riverside.

Jones, Mahoney & Brayton and Paul M. Mahoney, Pomona, for cross-defendant and respondent Petrolane Properties, Inc.

OPINION

McDANIEL, Associate Justice.

This appeal is from a summary judgment entered in favor of a cross-defendant and against two separate defendants and cross-complainants who, after the case was at issue, had brought the prevailing cross-defendant, not named in the complaint, into the litigation by means of their cross-complaints for equitable indemnity and contribution. The underlying action was brought to recover for a casualty loss allegedly suffered by the plaintiffs when their lands were flooded during the heavy rains in the winter of 1977-78. Among the defendants named as responsible were the County of Riverside and certain land developers whose projects at the time were under construction in proximity to the plaintiffs' lands.

The plaintiffs' grievance pleaded initially against the County of Riverside was that it had so altered the intersecting streets at a corner of their property so as to dam up waters which would otherwise have naturally flowed over and through plaintiffs' property without causing damage. Plaintiffs also charged the county with negligence in approving the developers' plans and in granting their building permits.

Otherwise, plaintiffs charged the named developers with altering "the natural flow of the water in such a manner as to concentrate it at a point immediately adjacent to plaintiffs' property." It was further alleged that this conduct led to and caused damage to plaintiffs' property. Both injunctive relief and money damages were sought.

Most of the defendants demurred successfully to the original complaint and plaintiffs then filed a first amended complaint which all defendants answered. A motion by plaintiffs for an advanced trial setting was successful. Thereafter, the several named defendants moved for leave to file cross-complaints for indemnity and contribution. Their various motions were granted, and the trial date was necessarily continued. In filing their cross-complaints, each of the named defendants, besides naming each other, named as additional cross-defendants various parties who had not previously been sued in the litigation. Among those so named was Petrolane Properties, Inc., the party whose motions for summary judgment against the County of Riverside and against what we shall call the Northwoods group ¹ were later granted and constitute the basis for the judgment appealed from.

In the instance of the Northwoods group's cross-complaint, the plaintiffs' first amended complaint was incorporated by reference, and they then added, "Cross-defendants, both those named in the amended complaint and those brought in by this cross-complaint, conducted themselves in the manner alleged in the complaint marked Exhibit '1', and the alleged causes of action therein contained, and those actions contributed to the injuries, if any, and to the damages, if any, sustained by plaintiffs." The Northwoods group then prayed for a declaration of comparative fault, in percentage terms, of themselves as to plaintiffs and all of the cross-defendants, including Petrolane, together with judgment by way of contribution from the others for any amount the Northwoods group was required to pay over and beyond its percentage share of comparative fault.

In the instance of the County of Riverside's cross-complaint, it was alleged "That prior to the filing of this Cross-Complaint a complaint and Amended Complaint has previously been filed by the plaintiffs, RAPHAEL L. DECKERT and DARLENE M. DECKERT, against this cross-complainant and others, in which said plaintiffs seek damages based on the allegations contained in the First Amended Complaint which has been filed in this matter. This cross-complainant has filed an answer to said First Amended Complaint, denying the allegations of said First Amended Complaint, to which reference is hereby made and is made a part hereof by a corporation. (P) That if plaintiffs were, in fact, damages (sic) they allege which allegations are generally and specifically denied by this cross-complainant, and said injuries and damages were solely and/or substantially caused by the negligence and carelessness of the cross-defendants, and each of them, and therefore, cross-complainant is entitled to have the degree of negligence of cross-defendants, and each of them, determined by this Court under the principal (sic) of equitable indemnification."

Thereafter, all of the cross-defendants answered the several cross-complaints.

Next, plaintiffs moved the court for leave to file a second amended complaint, and this motion was granted. A careful reading of the first amended complaint and the second amended complaint shows that the two are for the most part identical until one reaches paragraph 15. In the second amended complaint the allegations found in paragraph 15 and following are substantially amplified to state a third grievance against the County of Riverside in that it "negligently approved plaintiffs' building permit with full knowledge that plaintiffs' property was located in a flood-prone area and subject to flooding." Otherwise the charging allegations against the other defendants are the same, and Petrolane is not named as a defendant. Again, all defendants answered the second amended complaint. As a consequence, insofar as the record shows, these are the pleadings upon which the case will go to trial.

It was against this background, in terms of the foregoing state of the pleadings, that Petrolane moved for summary judgment as to all cross-complaints, including those of the Northwoods group and the County of Riverside. Additionally, the Northwoods group and the County of Riverside each moved for summary judgment against the plaintiffs. Both these latter motions were eventually denied, but that of Petrolane was granted as to the Northwoods group, the County of Riverside and two other cross-complainants. Judgment was entered accordingly, but only the Northwoods group and the County of Riverside appealed.

SYNOPSIS OF THE SUPPORTING PAPERS

In support of its motion, Petrolane filed the declaration of its president Donald E. Frink. That declaration set out that Petrolane owns a shopping center at the corner of Jurupa Road and Felspar Street in Riverside County which is about 1.5 miles easterly and northerly from the plaintiffs' property which in turn is located at the southwest corner of 58th and Beach Streets.

The Frink declaration stated that the first construction on the shopping center site was a Stater Bros. market which was completed September 30, 1976. Further construction on the shopping center site was completed between April 28, 1978, and September 1, 1978. ²

The Frink declaration further disclosed that there is drainage of surface water from the shopping center property which moves both easterly and southerly. Those waters which drain southerly flow into and along a concrete drainage ditch which runs north and south along the east edge of the shopping center. The concrete ditch is connected at its south end to a pipe which runs under Jurupa Road and under certain railroad tracks which are parallel to and adjacent immediately to the south of the road.

The Frink declaration also indicated that the pipe in turn connects to a dirt drainage ditch which extends straight south for approximately .4 of a mile to a point where it connects to a pipe which extends under another set of railroad tracks and Van Buren Boulevard, both of which run northwest and southeast with the result that a line extending from the dirt drainage ditch and the connecting pipe cross the tracks and Van Buren Boulevard on the bias.

The Frink declaration further showed that the pipe under Van Buren Boulevard empties in to the bed of a natural stream which bears off south-southwesterly until it crosses 58th Street following which it makes a gentle swing to the west and then proceeds west, northwesterly until it reaches plaintiffs' property and then crosses it. All of the foregoing locations and configurations are clearly inscribed on a map attached to and incorporated into the declaration by reference. ³

Otherwise, the declaration stated that Petrolane obtained all the required permits for the construction and operation of its shopping center and conformed to all other laws and regulations governing construction and operation of the shopping center. The declaration further stated that Petrolane had not entered into any contracts of indemnity with any party to the litigation.

Finally, although in our view it added little, if anything, of consequence to the legal impact of the declaration, Mr. Frink, in describing the course of water draining to the south from the shopping center punctuated his description of the path of flow with the words, "If the water has neither evaporated nor been absorbed into the ground" it would then proceed to the next segment of the route. In any event, as noted, the foregoing prose description of the course of drainage water...