Galli v. State of California

• Decision Date: 13 November 1979
• Citation: 159 Cal.Rptr. 721,98 Cal.App.3d 662
• Parties: Bruna GALLI, et al., Plaintiffs and Appellants, v. STATE of California, Defendant and Appellant. Civ. 17809.
• Court: California Court of Appeals Court of Appeals

Page 721

159 Cal.Rptr. 721

98 Cal.App.3d 662

Bruna GALLI, et al., Plaintiffs and Appellants, v. STATE of California, Defendant and Appellant.

Civ. 17809.

Court of Appeal, Third District, California.

Nov. 13, 1979.

Rehearing Denied Dec. 12, 1979.

Hearing Denied Jan. 24, 1980.

Desmond, Miller, Desmond & Bartholomew, Richard F. Desmond, Sacramento, Belli & Choulos, Melvin M. Belli, Thomas J. LoSavio, San Francisco, Buchman, Kass, Morgan & Miller, Kenneth M. Miller, Nichols, Williams, Morgan & Digardi, Edward Digardi, Oakland, James Garlock, San Francisco, for plaintiffs and appellants.

Evelle J. Younger and George Deukmejian, Attys. Gen., Robert L. Bergman, Asst. Atty. Gen., John M. Morrison and Thomas K. McGuire, Deputy Attys. Gen., for defendant and appellant.

REGAN, Associate Justice.

This case arose from the 1972 massive flooding of Brannan-Andrus Island in the Sacramento-San Joaquin delta (commonly known as the Isleton flood), resulting from failure of a levee on the San Joaquin River.

Liability Disposition of the Case in Trial Court

A class action was filed against the State of California (state), the Brannan-Andrus Levee Maintenance District, and the County of Sacramento (county). Plaintiffs are approximately 650 individuals, corporations and other legal entities whose properties were allegedly damaged by the flood waters.

The case was tried before a jury and special verdicts were rendered finding the Brannan-Andrus Levee Maintenance District liable based on both inverse condemnation and government tort liability. The jury found in favor of the county.

With respect to the state, appellant herein, the jury returned a special verdict finding the state did not substantially participate in the work of public improvement by the district of the failed levee and therefore the state was not directly liable for inverse condemnation.

However, by special verdict the jury did find the state directly liable for government tort liability based on its failure to perform a mandatory duty. This latter finding was made after the court had determined, as a matter of law, (a) the state had a mandatory duty to review and approve or disapprove the plans of levee work of the Brannan-Andrus Levee Maintenance District before any work was done, and (b) the district was an "agency of the State of California" and liability of the district for inverse condemnation and for tort was therefore the liability of the state. The jury was instructed that provisions of the Water Code required the state Reclamation Board's prior approval of any construction or maintenance work on a levee and prohibited the doing of any work without the board's permission, and that since it was admitted the state failed to comply with such mandatory duty, it was the function of the jury to determine whether such failure was a proximate cause of the damage to the plaintiffs. As to the district being an agency of the state, the jury was expressly informed the court would make this determination and the jury would not make a finding on that point. Assuming the jury followed the court's instructions, the liability of the state established by the special verdict of "failure to perform a mandatory duty" was based on a finding such failure was a proximate cause of the injury to plaintiffs. Moreover, since the court had found the district to be an agency of the state as a matter of law, the special verdict of the jury finding the district liable would also render the state directly liable (for an act of one of its agencies), as indicated by the special and general verdicts and by the judgment from which the state now appeals. The ultimate result was a general verdict against Brannan-Andrus Levee Maintenance District (from which it did not appeal) and a general verdict against the state, which led to the judgment from which the state here appeals.

Liability Issues On Appeal

There are two major issues raised by the state insofar as Liability is concerned. These are: (a) whether the state (acting through the State Reclamation Board) was under a mandatory duty to review and approve or disapprove the Brannan-Andrus Levee District's plan of work before the work was allowed to commence and, if so, whether failure to require submission of the plan and to review it could constitute a proximate cause of the injuries suffered; and (2) whether the district is a state agency for whose acts and omissions the state is liable.

Damage Disposition of the Case in Trial Court

Upon their motion, the actions of three of the many plaintiffs were severed from the class action for purposes of trial of damage issues, on the grounds the facts and circumstances of their damages were unique and different from other members of the class. ¹ This portion of the action was tried before a different trial court and jury. Several rulings made by the court before the case went to the jury have become damage issues on this appeal by the state. They are the following:

The trial court was confronted with the questions whether plaintiffs were entitled to pursue aggregate damages under theories of inverse condemnation and tort or were required to elect recovery under one theory. Over objections, the trial court ruled plaintiffs could proceed as to damages under both theories and could aggregate their items of damages, so long as there was no duplication of items.

The trial court ruled concerning the date of valuation of property for purposes of damages. Over defense objections, the court allowed evidence to go to the jury of valuations of certain lost or damaged properties in terms of 1973 dollars and in terms of 1978 dollars, i. e., the jury was allowed to consider the rate of inflation.

The trial court ruled, over objections, that evidence was admissible showing emotional distress of Marjorie Gemignani as an element of recoverable damages. The state challenges this ruling as error.

The Cross-Appeal

Plaintiffs have cross-appealed from the order of April 27, 1978, which was the same day as the judgment denying recovery of litigation costs and attorney's fees, pursuant to Code of Civil Procedure section 1036. They have also appealed from that portion of the judgment which reflects the trial court's order that damages are to be reduced by the amount of nonreimbursable federal disaster benefits received by them.

Facts

During the early morning hours of June 1, 1972, a levee failure occurred on the southern portion of Brannan-Andrus Island along the San Joaquin River in the Sacramento-San Joaquin delta area, resulting in the flooding of thousands of acres of agricultural and other land and portions of the City of Isleton.

Prior to the levee failure, work was in progress to raise subsided portions thereof and to widen its crown. The work was being done by the Brannan-Andrus Levee Maintenance District, created by the Legislature by special act in 1967 (Stats.1967, ch. 910). The district board was interested in using the least costly method and that which would take the county road on the levee out of use for the shortest period of time. George Rabb, civil engineer, was hired to develop plans and direct the repair and restoration work.

There were alternative methods that might be employed to restore the levee: material could be dredged from the adjoining channel, deposited behind the levee and when sufficiently dry moved up to raise and shape the levee crown; the dredged material could be deposited directly on the levee crown, and when sufficiently dry, placed as needed to achieve the necessary levee elevation; material could be imported from borrow sites by truck and placed on the levee; material could be taken from the land at the base of the inside of the levee to raise and shape the levee crown and then this material be replaced by dredged material from the adjacent channel. The first two methods had the disadvantage of requiring an extended period of time for the material to dry and were not utilized by the district.

In addition to raising the subsided portions of the levee crown to a uniform grade the district was widening the crown to allow for a wider county road. This required obtaining some 30 percent more material than would have been needed solely for restoring the levee.

No plans setting down the specific method of work in 1972 were made by the district. That year material for repairing the levee was obtained partially from the channel and partially from the landside of the levee. The levee was cleared of trees and brush and dredged material from the channel was placed on the waterside of the levee to raise and extend the crown waterward. Material was bulldozed from the land at the base of the inside of the levee and placed on the crown. This material was to be replaced immediately afterward by material dredged from the channel. The levee failed before the replacement occurred. Borrowing material from the field on the landside of the levee had been done on the stretches of levee worked on by the district in previous years without incident. The method had also been utilized by Raab on other delta levee work without untoward results.

No evidence of levee failure had been seen at the close of work the evening before the breach or by passersby later in the evening. No witness to the levee failure was produced. However, several witnesses testified they observed seepage in varying amounts at the base of the levee the day and the evening before the levee failed. Raab, and the district's superintendent, James Byrd, testified they observed no such seepage.

The precise cause of the levee failure seems uncertain. Raab testified he did not know what caused it, but that it might have been a deep-seated foundation failure. Engineers produced by plaintiffs as expert witnesses testified it might have been caused by seepage undermining the levee, by instability created by removing material from the base or "toe" of the land side of the levee, or by vibration caused by the use of heavy...