Locklin v. City of Lafayette, A045324

Decision Date23 November 1992
Docket NumberNo. A045324,A045324
Citation13 Cal.Rptr.2d 889,11 Cal.App.4th 1
CourtCalifornia Court of Appeals Court of Appeals
PartiesPreviously published at 11 Cal.App.4th 1, 16 Cal.App.4th 1135, 21 Cal.App.4th 1190 11 Cal.App.4th 1, 16 Cal.App.4th 1135, 21 Cal.App.4th 1190 Harry LOCKLIN, et al., Plaintiffs and Appellants, v. CITY OF LAFAYETTE, et al., Defendants and Respondents.

Philip L. Pillsbury, Jr., Pillsbury, Wilson & Post, Burton J. Goldstein, Goldstein & Goldstein, San Francisco, for plaintiffs and appellants.

Timothy J. Ryan, Gordon, DeFraga, Watrous & Pezzaglia, A Law Corp., Martinez, John H. Tallett, John Pound, San Mateo, Gary M. Lepper, Stoddard, Lepper, Falco & Schaefer, Walnut Creek, Joseph A. Montoya, Chief Counsel, Robert J. DeFea, Kenneth G. Nellis, Donald M. Velasco, Lucille Y. Baca, San Francisco, for defendants and respondents.

BENSON, Associate Justice.

I INTRODUCTION

Appellants, property owners or former property owners along the lowest reach of Reliez Creek in Contra Costa County, commenced this lawsuit to recover damages for injury to their real property resulting from erosion and downcutting of the creek's banks. They joined as defendants the City of Lafayette (City), the County of Contra Costa (County), the Contra Costa County Flood Control District (District), the California Department of Transportation (CalTrans), and the Bay Area Rapid Transit District (BART). 1 Claiming that artificially generated excess storm waters resulting from failure of respondents' public storm drainage system and from publicly constructed transportation arteries caused The action proceeded to trial. Following presentation of appellants' evidence, the trial court ruled in favor of respondents CalTrans, BART, County and District on their respective motions seeking judgment pursuant to Code of Civil Procedure sections 581c (nonsuit) and 631.8 (motion for judgment). Those motions were also granted as to the City, except that the case was permitted to continue to resolution regarding the City's liability arising from the existence of two structures (the "Sizeler outfall" and the "sheet pile structure") within Reliez Creek. Directed and special verdicts ultimately were returned in favor of the City on the tort causes of action. At the conclusion of the evidence in the case against the City, the trial court determined that appellants had failed to prove that either the Sizeler outfall or the sheet pile structure was a substantial concurring cause of damage to any plaintiff's property and, consequently, ruled in the City's favor on the inverse condemnation cause of action. 3

their injuries, appellants proceeded on theories of inverse condemnation, dangerous and defective condition of public property, nuisance and trespass against the respondent public entities. 2

On appeal from the judgments, appellants urge trial court error in three respects: first, because this case involves a public storm drainage system and not a natural watercourse, the trial court should have held respondents strictly liable in inverse condemnation; second, even if the trial court was correct in applying the "natural watercourse rule," the trial court wrongly determined the rule to be one of absolute immunity rather than a limited immunity available only if the public entity's conduct was reasonable; third, appellants having demonstrated each respondent's conduct was a substantial factor in causing their injuries, the trial court erred in requiring appellants to apportion fault among respondents rather than applying the doctrine of joint and several liability to each respondent. We will affirm and, in doing so, will reject each of these contentions.

II STATEMENT OF FACTS

Historically, Reliez Creek is a natural watercourse serving to drain a 2,291 acre watershed in Contra Costa County. The area appellants occupy extends in a generally north to south direction from Condit Road Bridge to Reliez Creek's confluence with Las Trampas Creek, a distance of approximately 1,500 feet. At the confluence, the waters of Reliez Creek and Las Trampas Creek join and eventually flow into Walnut Creek, ultimately to discharge into Suisun Bay.

Prior to the second world war, the watershed was essentially rural in nature. After the war, it began to experience significant urban development, a pattern of growth consistent with the experience of most regions within the San Francisco Bay Area. Expert testimony offered by appellants established watershed development of 15 percent by 1957, 27 percent by 1968, and 33 percent by 1982 (as we shall see, a watermark year in this litigation). 4 The BART system occupies 3.5 acres or 0.1 percent of the total watershed; CalTrans Highway 24 occupies 22.4 acres or approximately 1.0 percent of the total; respondent City's streets occupy 117.9 acres or approximately 4.8 percent of the total watershed. No evidence was presented with respect to roadways or other facilities within the watershed area owned and maintained by the County or District after 1968. There are significant numbers of public and private The land owned by appellants varies in size from approximately one-half acre to fourteen acres. The properties occupying this lowest reach of Reliez Creek are approximately one-half mile distant from Highway 24. Testimony established that Highway 24, at its location within the watershed area, was completed in its present form in 1968. (Highway 24 at this location consists of two multi-lane roadbeds running generally east and west and separated by the BART right of way and railway facilities.) A 920-foot culvert, apparently placed within the natural confines of Reliez Creek, serves to collect and drain the surface waters falling on the CalTrans and BART acreage. This culvert ends well above Condit Road, and, at the point where the waters leave the culvert, there is an engineered structure designed to dissipate the velocity and energy of the emerging water. Phillip Williams, a hydrologist and one of appellants' expert witnesses, walked up Reliez Creek from Condit Road as far as the culvert sometime in the mid-1980's. He observed the creek bank in this area was completely different from that below Condit Road, with little evidence of bank failure. 6

property owners, not joined as defendants in this lawsuit, whose roads or facilities drain into the natural watercourse of Reliez Creek. For example, privately owned streets occupy 69 acres; public streets of the City of Walnut Creek occupy 11 acres; Acalanes High School occupies over 26 acres, approximately 60 percent of which is impervious. 5

Among appellants, the Grays owned their property the longest period of time, having purchased in 1965. The property is located on the west side of Reliez Creek. 7 There was no erosion of the creek banks when they acquired their property, which abuts the northern boundary of the Sizeler property. The first erosion problem experienced by the Grays occurred in 1978 and coincided with the failure of a storm drain outlet owned and maintained initially by the County, then by the City, on an easement existing on the Sizeler property. Throughout the litigation this area is referred to as the "Sizeler outfall."

Next in ownership seniority is Locklin who acquired his property in 1968. In early 1970, a large bay tree sloughed off his property and slid to the bottom of the creek. At the time the tree fell, Locklin has no recollection of any significant rainfall having occurred. He further testified the slope of the creek bank maintained itself at its normal approximate 45 degree gradient. This isolated incident caused Locklin to contact the City and inquire what might be done to prevent bank erosion along the creek. The City referred Locklin to the County, which provided him with information on how this might be accomplished. However, no remedial steps were undertaken. The next time Locklin noticed damage to the banks was in mid-January 1982.

The Sizelers purchased their property in 1977. It is located on the west side of Reliez Creek and abuts the northern boundary of the Locklin property. Mr. Sizeler walked Reliez Creek between Condit Road The Lins acquired their property on the east side of Reliez Creek in 1978. The property is located across the creek from the Sizeler property. Before the Lins purchased, Mr. Lin satisfied himself the creek had not damaged the property. Along the creek bank he discovered the tracks of an old wagon trail which led from Reliez Creek Station to Orinda, convincing him the bank had been stable for about 100 years. Shortly after moving onto the property in 1979, the Lins lost a bay tree at the point where the drain from their home and the creek intersect. They began to experience bank erosion in February 1980. In April 1980, Mr. Lin wrote Harold Smith Company, which had developed several homes on the east side of the creek, complaining about the loss of three large trees along the bank, two of which were lost due to bad grading or bad drainage by the developer. At trial, Mr. Lin (who has an engineering background) opined the action of the water cascading down the sill at the Sizeler outfall had undermined his bank. He also testified the sheet pile structure (which we shall soon refer to), which had been constructed during the winter of 1982-1983, had also caused damage to the creek. However, Mr. Lin, after experiencing the February 1980 erosion, had constructed a 26-foot long, 8-foot high bulkhead to protect his property from further erosion.

                and the Locklin property in 1977 and did not observe erosion to the creek's banks.  At that time, he spoke with the former owners who advised him there had been no previous erosion problems at the site.  However, in 1977, Mr. Sizeler noticed that a drainage pipe carrying storm water runoff from Pleasant Hill Road was leaking and eroding.  This pipe was located on an easement on the northern boundary of his property.  The leaking was causing an
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2 cases
  • Locklin v. City of Lafayette
    • United States
    • California Supreme Court
    • February 28, 1994
    ...of surface waters into a natural watercourse abutting its property? The Court of Appeal held that there could be no liability, 16 Cal.App.4th 1135, 21 Cal.App.4th 1190, 13 Cal.Rptr.2d We granted the petition of plaintiffs, owners of damaged properties, to consider whether the "natural water......
  • Locklin v. City of Lafayette, S030595
    • United States
    • California Supreme Court
    • February 11, 1993
    ...v. CITY OF LAFAYETTE et al., Respondents. No. S030595. Supreme Court of California, In Bank. Feb. 11, 1993. Prior report: Cal.App., 13 Cal.Rptr.2d 889. Appellants' petition for review LUCAS, C.J., and MOSK, PANELLI, KENNARD, ARABIAN, BAXTER and GEORGE, JJ., concur. ...

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