Insalaco v. Padilla
| Decision Date | 27 June 2022 |
| Docket Number | A159483,A160164 |
| Parties | ROBERT INSALACO et al., Plaintiffs and Appellants, v. JUAN D. PADILLA, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. MSC17-00725)
This is the second appeal brought by plaintiffs Robert Insalaco and Leslie Lomax (the Insalacos) regarding extensive property damage they sustained in a 2017 landslide.[1] Defendant Juan D Padilla owns property across the street and uphill from the Insalacos' property. Padilla successfully moved for summary judgment against the Insalacos and was awarded costs. We conclude there were concededly material facts enumerated by Padilla in his motion for summary judgment that the Insalacos disputed and it was thus error to grant summary judgment. Accordingly, we reverse the judgment and vacate the cost award to Padilla.
The parties own property on a residential cul-de-sac in El Sobrante that has had a long history of soil movement and landslides. The Insalacos' property at 71 Avenida Martinez was severely damaged in a landslide in 2017. Padilla's property at 64 Avenida Martinez is across the street and uphill from the Insalacos' property. The Insalacos sued a number of neighboring landowners, including Padilla, for various causes of action, including nuisance, trespass, and diversion of surface water.
On September 30, 2019, Padilla moved for summary judgment against the Insalacos on the grounds that his property was not the cause of the landslide on the Insalacos' property. In support, Padilla relied on a declaration from Robert Holmer, a registered civil and geotechnical engineer.
Holmer inspected "the site"[2] on June 7, 2018, and January 23, 2019. Holmer conducted a geotechnical investigation, which included drilling and sampling of subgrade soils, laboratory testing, and analysis. He also reviewed extensive documentation of active landslide movement dating back to the 1970's regarding the north side of Avenida Martinez. Padilla's property is on the south side of Avenida Martinez and across the street from the Insalacos' property.
Holmer reported that on or about February 2017, a significant landslide occurred that caused severe damage to the Insalacos' house at 71 Avenida Martinez. According to his observation, the slide mass encompasses nearly the entire parcel at 71 Avenida Martinez and a significant portion of the adjacent property at 63 Avenida Martinez (the Du/Wong property). Holmer opined:
From his site visits and testing, which included flooding Padilla's concrete driveway with water from a garden hose, Holmer concluded nearly all of the surface water would flow down the driveway, over the sidewalk, and into the gutter. According to Holmer's subsurface testing, the soil is native clay and considered generally to be impervious.[3] Holmer opined that due to the impervious nature of the native clay soil and the low filtration of the driveway, combined with the lack of any identifiable drainage path from Padilla's property to the slide mass, Padilla's property did not, in any way, contribute to the cause of the slide at the Insalaco property.
In opposition to Padilla's motion, the Insalacos submitted a declaration from Alan Kropp, a registered civil and geotechnical engineer with more than 47 years of experience in civil and geotechnical engineering. Kropp believed that the facts relied on by Holmer were irrelevant to the cause of the slide and did not support Holmer's opinion.
Kropp inspected the Insalaco property, the Du/Wong property, and the Padilla property. Kropp reviewed the data collected by Holmer, as well as a significant number of documents and photographs exchanged by the parties. Kropp disagreed with Holmer's opinion that the Padilla property is not located within the slide mass.
In Kropp's opinion, the Padilla property is located in the slide mass as evidenced by the significant displacements in the driveway, sidewalk, curb and street surface in front of Padilla's property. Photographs show a significant and readily visible dip in the pavement forming the driveway, sidewalk and curb directly in front of the Padilla property. The photographs also show subsidence in the surface of Avenida Martinez directly in front of the Padilla property, which is directly across the street from the Insalaco and Du/Wong properties.
According to Kropp, the movement of the landslide mass, as a whole, including that portion on which the Padilla property is located, is a significant factor in the cause of the landslide that damaged the Insalaco property. Kropp opined that the Insalaco and Du/Wong properties cannot be stabilized or repaired without a complete repair of the slide mass, including that portion of the slide on the Padilla property.
In response to the Insalacos' opposition, Padilla argued that the key uncontested fact is that the Padilla property introduced, at most, an imperceptible amount of water into the slide mass, which was insufficient to establish causation. In his declaration, Padilla stated that the cracks in his driveway and sidewalk were present at the time he purchased 64 Avenida Martinez in 2009. Padilla included a photograph from 2009 that showed the cracks in the driveway and sidewalk. Padilla further declared that the cracks in the driveway and sidewalk were not caused by the 2017 landslide. Padilla noticed no appreciable changes in the cracks since the time of the landslide.
Padilla argued that the boundary of the slide mass is irrelevant to the issue of causation, and that "even if the slide encroaches into the Padilla property a few inches or even a foot, it proves nothing." Padilla took issue with Kropp's "simplistic opinion that Padilla shares substantial liability for the slide." Specifically, Padilla contended, there was no explanation as to how Padilla failed to act reasonably in the care and maintenance of his property.
Prior to the hearing, the trial court issued a tentative ruling granting Padilla's motion. At the beginning of the hearing, counsel for the Insalacos argued there was a factual issue regarding whether Padilla's property was at least partially in the slide mass. The trial court agreed with the Insalacos' counsel that "there is a factorial [sic] issue" regarding the location of Padilla's property. The trial court, however, focused its attention on what it perceived was a lack of evidence to show that Padilla acted negligently vis-à-vis the Insalaco property.
At the close of the hearing, the trial court adopted its tentative ruling and granted the motion for summary judgment. In its written order, the trial court found that Holmer's analysis established that surface water from Padilla's property was diverted into a gutter and did not reach the Insalaco property. Additionally, there was no plausible theory that water flowed underground from Padilla's property onto or into the Insalacos' property in sufficient amounts to contribute to the slide because the clay soil slowed and inhibited water flow. The court determined this was sufficient to shift the burden to the Insalacos "to show a triable issue as to causation and fault."
The court remarked that the Insalacos' opposition did not address Holmer's water movement theory and instead
The court then The court further concludes:
Following Padilla's successful summary judgment motion, the court awarded Padilla $44,568.76 in costs, which included $40,798.30 in expert costs.
The purpose of the summary judgment procedure is not to try the issues but merely to discover through the medium of declarations and other evidence whether there are issues to be tried and whether the parties possess evidence that demands the analysis of trial. (Lederer v. Gursey Schneider LLP (2018) 22 Cal.App.5th 508, 531-532; J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4th 123, 139.) For a defendant to prevail on a motion for summary judgment, they must show at least one element of a plaintiff's cause of action cannot be established, or the defendant has an affirmative defense. (Code Civ. Proc., §...
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