First English Evangelical Lutheran Church v. County of Los Angeles

• Decision Date: 26 May 1989
• Docket Number: No. B003702,B003702
• Citation: 210 Cal.App.3d 1353,258 Cal.Rptr. 893
• Court: California Court of Appeals Court of Appeals
• Parties: , 19 Envtl. L. Rep. 21,329 FIRST ENGLISH EVANGELICAL, LUTHERAN CHURCH OF GLENDALE, a California corporation, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, California, and Los Angeles County Flood Control District, Defendants and Respondents.

Page 893

258 Cal.Rptr. 893

210 Cal.App.3d 1353, 19 Envtl. L. Rep. 21,329

FIRST ENGLISH EVANGELICAL, LUTHERAN CHURCH OF GLENDALE, a California corporation, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, California, and Los Angeles County Flood Control District, Defendants and Respondents.

No. B003702.

Court of Appeal, Second District, Division 7, California.

May 26, 1989.

As Modified on Denial of Rehearing June 23, 1989.

Fadem, Berger & Norton, and Michael M. Berger, Los Angeles, for plaintiff and appellant.

De Witt W. Clinton, County Counsel of Los Angeles County, and Charles J. Moore, Principal Deputy County Counsel, and Hill, Farrer and Burrill and Jack R. White, Darlene B. Fisher, and Dean E. Dennis, Los Angeles, for defendants and respondents.

John K. Van de Kamp, Atty. Gen., N. Gregory Taylor, Asst. Atty. Gen., Craig C. Thompson and Terry T. Fujimoto, Deputy Attys. Gen., for amicus curiae.

JOHNSON, Associate Justice.

In this opinion we consider an issue on remand from the United States Supreme Court. The high court held a landowner is entitled to compensation--not merely injunctive relief--when a court finds there has been an unconstitutional regulatory taking. But the Supreme Court expressly reserved the question whether respondent's regulatory action in this case amounted to an unconstitutional taking. We decide appellant failed to state a cause of action for two independent and sufficient reasons: (1) The interim ordinance in question substantially advanced the preeminent state interest in public safety and did not deny appellant all use of its property. (2) The interim ordinance only imposed a reasonable moratorium for a reasonable period of time while the respondent conducted a study and determined what uses, if any, were compatible with public safety.

FACTS AND PROCEEDINGS BELOW

This is an action for property damage caused by the flooding of plaintiff's 21-acre private campground, Lutherglen, located at the bottom of a canyon in the Angeles National Forest, at 23200 Angeles Forest Highway, Palmdale, California.

Plaintiff, First English Lutheran Evangelical Church of Glendale (First English) purchased Lutherglen in 1957. Twelve acres are flat land, elevated a little above the banks of Mill Creek, a natural watercourse running down the canyon through Lutherglen, and emptying approximately ten miles below into the Big Tujunga Dam. On this part of the property, First English built a dining hall, two bunkhouses, a caretaker's lodge, an outdoor chapel, and a footbridge across Mill Creek.

The Middle Fork of Mill Creek is the natural drainage channel for the watershed area (watershed area) owned by the National Forest Service (Forest Service) upstream of Lutherglen. The Middle Fork joins Mill Creek about 1 1/2 miles above Lutherglen, just below the point where the Angeles Forest Highway (highway) crosses the Middle Fork at Mileage Marker 16.56 (M.M. 16.56). The highway, built by defendant County of Los Angeles (County) with Forest Service approval, crosses the Middle Fork at about 20 locations in the canyon. At M.M. 16.56, the Middle Fork flows beneath the highway through two metal culverts placed by the County in the highway's solid raised dirt embankment.

About 3,860 acres of the watershed area were burned in a fire known as the Middle Fire in July 1977. It is undisputed that the Middle Fire created a potential flood hazard. ¹

On February 9 and 10, 1978, a disaster waiting to happen finally arrived. A storm dropped a total of 11 inches of water in the watershed area. A giant wall of water rushed toward the fragile structures people had erected on the banks of the creek. The docile, often dry creek became a raging river and overflowed the banks of the Middle Fork and Mill Creek. The highway's culverts at M.M. 16.56 were inadequate to handle the volume of water. ² The flood drowned ten people in its path, swept away bridges and buildings, and inflicted millions of dollars in losses. Fortuitously, Lutherglen's planned camp for handicapped children scheduled for that week had been postponed. So no lives were lost on its property when the surging waters engulfed Lutherglen and destroyed its buildings.

Plaintiff filed this inverse condemnation action against the County and the Los Angeles County Flood Control District (District), claiming that the damage to Lutherglen constituted a taking without payment of compensation contrary to article I, section 19 of the California Constitution. ³ The first cause of action alleges that (1) the defendants are liable under Government Code section 835 ⁴ for controlling the Middle Fork and the highway at M.M. 16.56, which constituted a dangerous condition of public property; and (2) that a County ordinance adopted after the flood constituted an unconstitutional taking of property by prohibiting all use of Lutherglen's 21 acres. The second cause of action alleges that the District engaged in cloud seeding during the storm, for which it is liable in tort and inverse condemnation.

The trial court granted the following pretrial motions: (1) defendants' motion to strike the portion of the first cause of action for damages in inverse condemnation based on the taking of all use of Lutherglen by a County ordinance; (2) the District's motion for judgment on the pleadings on the second cause of action in tort and inverse condemnation based on cloud seeding; and (3) defendants' motion to limit the trial to the first cause of action for damages under section 835, rather than in inverse condemnation.

The trial, which proceeded solely on the section 835 action, was bifurcated and liability was tried to a jury prior to damages. At the close of plaintiff's evidence on liability, the court granted defendants' motion for nonsuit. A judgment of nonsuit dismissing the entire complaint was entered. In its initial appeal to this court, First English appealed the judgment of dismissal and also sought appellate review of the pretrial rulings enumerated above, and of the post-judgment order awarding costs and fees to defendants.

In an unpublished opinion authored by Justice Thompson, this court affirmed the nonsuit of the section 835 cause of action but reversed the dismissal of the claim of inverse condemnation based on the County's cloud seeding efforts. As to the "regulatory taking" cause of action based on the interim County ordinance prohibiting First English from rebuilding the destroyed buildings, Justice Thompson wrote: "We conclude that because the United States Supreme Court has not yet ruled on the question of whether a state may constitutionally limit the remedy for a taking to nonmonetary relief, this court is obligated to follow Agins. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455[, 20 Cal.Rptr. 321, 369 P.2d 937].)" (First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, et al. (No. B003702), unpublished slip opinion, at p. 22.) ⁵

The California Supreme Court adhering to its own precedent in Agins v. Tiburon denied review on the "regulatory taking" as well as all other issues raised in the initial appeal. But the United States Supreme Court seized upon the case to finally resolve the remedy issue, a question it had been unable to reach for procedural reasons in a series of prior appeals. ⁶ The Supreme Court limited its grant of certiorari to our ruling on the "regulatory taking" cause of action. In a 6-3 decision the high court reversed our resolution of this issue. The majority held we were in error because we relied on an erroneous ruling of the California Supreme Court in Agins. The Supreme Court held monetary damages indeed can be sought as an initial remedy for "inverse condemnation" claims based on unconstitutional "regulatory takings." (First Lutheran Church v. Los Angeles County, supra, 482 U.S. at p. 321, 107 S.Ct. at p. 2389.) However, the Court limited its decision to this single issue and remanded the case to our court to determine whether the County's ordinance actually represents an unconstitutional "taking" of appellant's property without compensation. (Id. at pp. 313, 321, 322, 107 S.Ct. at pp. 2384, 2389.)

DISCUSSION

Our own previous opinion and that of the Supreme Court define what it is we have yet to resolve in the instant opinion. The trial court made its order striking the inverse condemnation conversion allegation based on the California Supreme Court ruling that damages are not available for a "regulatory taking" until after the regulation in fact is ruled to be an unconstitutional taking and the government elects to continue the regulation in effect. This grounds for the order has been overturned. We must now decide whether this order can be sustained on any other grounds. For, it is well settled that a trial court's decision is not to be reversed merely because it was based on erroneous grounds if there is an alternative rationale which will support that judgment. (Keenan v. Dean (1955) 134 Cal.App.2d 189, 285 P.2d 300 [appellate court can uphold motion to strike granted on erroneous grounds if demurrer could have been sustained for failure to state cause of action].)

The United States Supreme Court in First English made it abundantly clear the Court was deciding the remedies issue--and only that issue. ⁷ The majority specifically held it was not deciding appellant had stated a cause of action As Chief Justice Rehnquist wrote: "In affirming the decision to strike this allegation, the Court of Appeal [this court] assumed that the complaint sought 'damages for the uncompensated taking of all use of Lutherglen by County Ordinance No. 11,855.' ... It relied on the California Supreme Court's Agins decision for the conclusion that 'the remedy for a taking [is limited] to nonmonetary relief....' .... The disposition of the case on these grounds isolates the remedial question for our consideration. The rejection of appellant's allegations did not rest on the view that they were...