Insalaco v. Hope Lutheran Church of W. Contra Costa Cnty.

• Decision Date: 27 May 2020
• Docket Number: A156562
• Citation: 49 Cal.App.5th 506,262 Cal.Rptr.3d 852
• Court: California Court of Appeals
• Parties: Robert INSALACO et al., Plaintiffs, Cross-defendants and Appellants, v. HOPE LUTHERAN CHURCH OF WEST CONTRA COSTA COUNTY, Defendant, Cross-defendant and Respondent; Mary Wong et al., Defendants, Cross- complainants and Appellants.

49 Cal.App.5th 506

262 Cal.Rptr.3d 852

Robert INSALACO et al., Plaintiffs, Cross-defendants and Appellants,

v.HOPE LUTHERAN CHURCH OF WEST CONTRA COSTA COUNTY, Defendant, Cross-defendant and Respondent;

Mary Wong et al., Defendants, Cross- complainants and Appellants.

A156562

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

Filed May 27, 2020

Hirsh Closson; Clifford Hirsch, Barrett B. Braun, Demler, Armstrong & Rowland, LLP; John R. Brydon, James V. Weixel, for Plaintiffs, Cross-defendants and Appellants Robert Insalaco and Leslie Lomax

Clark Hill LLP; Elizabeth A. England, Thomas W. Chaffee, David M. Perl, San Francisco, for Defendants, Cross-complainants and Appellants Lucas T. Du and Mary Wong

Lewis Brisbois Bisgaard & Smith LLP; Jeffrey A. Miller, Palo Alto, Lann G. McIntyre, San Diego, David E. Russo, Christopher J. Nevis, San Francisco, for Defendant, Cross-defendant and Respondent

Miller, J. Plaintiffs Robert Insalaco and Leslie Lomax (the Insalacos) own property atop of a slope. At the bottom of the slope is a creek. Defendant Hope Lutheran Church (Church) owns property on the other side of the creek. After a landslide made their house uninhabitable, the Insalacos filed this action against, among others, the Church and several adjoining landowners, including Mary Wong and Lucas T. Du (the Du/Wongs). The Du/Wongs filed a cross-complaint, alleging tort causes of action related to the landslide and seeking indemnification. The Church successfully moved for summary judgment against the Insalacos and the Du/Wongs, and these appeals followed.

We now reverse. As to the Insalacos, we conclude the trial court erred in denying their timely motion for a continuance under Code of Civil Procedure section 437c, subdivision (h)¹ to take additional discovery and oppose the summary judgment motion. As to the Du/Wongs, we conclude that there were concededly material facts enumerated by the Church in its motion for summary judgment that were disputed, and it was thus error to grant summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Properties

The Insalacos and the Du/Wongs own neighboring properties on Avenida Martinez in El Sobrante. Wilkie Creek (the creek) runs behind both properties. The Du/Wong property is downhill and to the west of the Insalaco property.

The Church owns property to the north and directly across the creek from the Insalaco and Du/Wong properties. The Church property is generally flat with a large impervious surface area created by a large parking lot and other paved areas. There are several buildings on the property, including the church building itself and a daycare center. Surface water runoff from the parking lot and the buildings is captured in catch basins and transferred to an underground drainage pipe that discharges into the creek.

B. The Landslide

January and February 2017 were marked by heavy rainfall in the Bay Area. In February 2017, a landslide on the Insalaco property severely damaged their home, rendering it unlivable. The landslide straddled the property line between the Insalacos and the Du/Wongs, and also resulted in damage to the Du/Wong property.

The exact date of the landslide is disputed, but all agree it occurred in February 2017. Although the cause of the landslide is contested, it is undisputed that there are two ways in which the water flow in a creek could destabilize a slope. The water could erode the toe of the slope, which would remove the buttressing effect of the soil at the toe.² Or, a sustained rise in the water level of a creek could increase the amount of water in the slope.

C. The Insalacos File Suit; The Du/Wongs Cross-Complain

The Insalacos sued the Church, as well as several neighboring property owners on Avenida Martinez, including the Du/Wongs. The Insalacos alleged causes of action for nuisance, trespass, and diversion of surface waters, and sought declaratory relief. They alleged that water runoff from the Church caused the water in the creek to rise, which caused their backyard to flood. The flooding saturated the soil in the Insalacos’ backyard, which in turn caused the landslide.

The Du/Wongs cross-complained against the Church, the Insalacos, and other neighboring property owners,³ asserting causes of action for nuisance, negligence, trespass, equitable and comparative indemnification, and declaratory relief against all cross-defendants.

D. The Church’s Motions for Summary Judgment

On July 27, 2018, the Church moved for summary judgment against the Insalacos and the Du/Wongs. In support, the Church relied on declarations from two retained experts: Jeff Raines, a registered civil and geotechnical engineer; and James Ulrick, a certified hydrogeologist.

1. Raines Declaration

Raines inspected the Church property and the Insalaco property on four occasions: July 26, October 19, and October 27, 2017, and March 1, 2018. He inspected the Du/Wong property once on October 27, 2017.

Raines inspected the Insalaco property during a rainstorm on March 1, 2018, which he opined was similar to the rainfall during the February 7, 2017 landslide. Raines based this conclusion on rainfall data collected from a weather station in Concord, which he stated was the closest weather station to El Sobrante.

According to Raines’s observations of the storm on March 1, 2018, the creek rose approximately six inches during heavy periods of rainfall but, once the rainfall let up, returned to its original level in about 15 minutes. Raines opined that one hour of heavy rainfall was not enough time for water to infiltrate into the soil and reduce the stability of the slope.

From his site visits, Raines concluded that the creek’s channel was stable with no signs of recent erosion. The south bank of the creek (the Insalacos’ side) was armored with large rocks that were stable with no signs of recent erosion or displacement. Raines found no evidence that water in the creek overflowed its banks and rose above the bottom of the slope.

Raines opined that the Church’s contribution to the water level had no effect on the Insalaco property because the surface water runoff from the Church parking lot enters the creek from a drainage pipe located downstream of the Insalaco property. Raines further stated the Church property had a drainage area of 2.657 acres, which represented 0.3 percent of the 856-acre watershed area upstream from the Church. In his opinion, the Church’s contribution to the water level and flow of the creek was thus "insignificant."

Based on his inspection, Raines concluded that the Insalaco roof drain system routed all of the roof water into one concentrated area, which contributed to the soil destabilization. He also believed that any precipitation on the Insalacos’ unpaved driveway would infiltrate the ground and migrate into the soil beneath the house and the affected area.

Raines concluded that the primary cause of the landslide was heavy rainfall that was exacerbated by the Insalacos’ roof drainage system.

2. Ulrick Declaration

Ulrick inspected the Church property, the Insalaco property, and the Du/Wong property on June 30, July 26, and October 27, 2017. Ulrick found no evidence of recent erosion of the creek banks. He opined that the flow in the creek did not affect the groundwater levels in the hill slope behind the Insalacos’ house or cause the landslide. Rather, he believed that "[s]ources of water into the soil within or upslope from the landslide[,]" including the concentrated discharge from the Insalacos’ roof downspouts and surface water drainage system, were likely causes of the soil failure.

According to Ulrick, all "altered drainage" from the Church property entered the creek downstream of the Insalaco property. As such, the runoff from the Church had no effect on the Insalaco property. In addition, the Church’s contribution to the water level and flow in the creek was insignificant because the Church property drainage area of 2.657 acres represents just 0.3 percent of the 856-acre watershed drainage area upstream from the Church.

E. Request for Continuance of Summary Judgment Hearing

On September 17, 2018, the Insalacos, joined by the Du/Wongs, filed an ex parte application under section 437c, subdivision (h) to continue the summary judgment hearing to obtain a site inspection of the Church property in advance of the depositions of the Church’s two expert witnesses (Raines and Ulrick).

The Insalacos’ application for continuance stated that no trial date had been set, no depositions had been taken, and that, other than the summary judgment hearing set for October 26, 2018, the only other pending court date was a case management conference. As such, there was no reason to expedite the motions for summary judgment at the expense of allowing the nonmoving parties to conduct a site inspection before they took the depositions of Raines and Ulrick.

The Insalacos submitted a memorandum of points and authorities supported by a detailed declaration from their attorney. The Insalacos advised the court that the depositions of Raines and Ulrick were set to commence that week. However, a site inspection was necessary to fully explore and refute the opinions that Raines and Ulrick had set forth in their respective declarations. The Insalacos identified four reasons: First, the topography of the Church property—specifically, the contours, slope, and other features of the land—needed to be mapped before an accurate determination could be made regarding the flow of water on and from the Church property. Second, a site inspection was needed to verify the exact location of the water outlet from the Church property into the creek. Third, an inspection of the creek bed from the Church’s side of the creek was necessary to assess the validity of the claim that there was no evidence of erosion. Fourth, the opposing parties’ experts needed to perform water testing to determine the path of the runoff water from the Church property and to determine if there were additional outlets for water other...