Mercury Cas. Co. v. City of Pasadena

• Decision Date: 24 August 2017
• Docket Number: B266959,B268452
• Citation: 14 Cal.App.5th 917,222 Cal.Rptr.3d 408
• Court: California Court of Appeals
• Parties: MERCURY CASUALTY COMPANY, Plaintiff and Respondent, v. CITY OF PASADENA, Defendant and Appellant.

14 Cal.App.5th 917

222 Cal.Rptr.3d 408

MERCURY CASUALTY COMPANY, Plaintiff and Respondent,

v.CITY OF PASADENA, Defendant and Appellant.

B266959

B268452

Court of Appeal, Second District, Division 3, California.

Filed August 24, 2017

Richards, Watson, & Gershon, Robert C. Ceccon, Saskia T. Asamura, T. Peter Pierce, and Stephanie Cao, Los Angeles; Michelle Beal Bagneris, Ann S. Rider, and Javan N. Rad, Pasadena, for Defendant and Appellant.

Law Offices of Robert A. Stutman, Timothy E. Cary, Palm Desert, Brian M. Wong, San Francisco, and Nathan R. Hurd, for Plaintiff and Respondent.

Moscone Emblidge Otis, G. Scott Emblidge and Erin H. Reding, San Francisco, for Amicus Curiae the League of California Cities, the California State Association of Counties, California Park and Recreation Society, Professor Daniel P. Selmi, and Professor John Echeverria on behalf of Defendant and Appellant.

Jonathan M. Coupal, Timothy A. Bittle, Sacramento, Trevor A. Grimm, Los Angeles, and Brittany A. Sitzer for Amicus Curiae Howard Jarvis Taxpayers Foundation on behalf of Defendant and Appellant.

LAVIN, J.

INTRODUCTION

In 2011, a storm brought hurricane-force winds to the City of Pasadena (City), uprooting more than 2,000 trees. One of those trees fell on the home of Sarah and Christopher Dusseault, causing severe property damage. Before it fell, the tree stood in a parkway that abuts the Dusseaults' property. Although the City owned the tree, there is no record of who planted it.

In 2012, Mercury Casualty Company (Mercury), the Dusseaults' insurer, sued the City for inverse condemnation. After a bench trial, the trial court entered judgment in Mercury's favor, finding the tree that fell on the Dusseaults' home was a work of public improvement that supported an inverse condemnation claim. The court awarded Mercury $800,000 in damages for insurance benefits paid to the Dusseaults, and an additional $329,170 in costs under Code of Civil Procedure section 1036.

On appeal, the City contends the court erred in finding it liable under a theory of inverse condemnation. We conclude the tree that fell on the Dusseaults' home does not constitute a work of public improvement for purposes of an inverse condemnation claim. Because the City could not be held inversely liable for the damage caused to the Dusseaults' home, we reverse the judgment and subsequent order awarding costs.¹

FACTUAL AND PROCEDURAL BACKGROUND

1. The City's Urban Forest

The City owns more than 60,000 trees as part of its "urban forest." The City adopted its first formal policy addressing city-owned trees in 1940, when it published the "Official Street Tree List." The list designated an official tree for each street in the City.² The list did not include an inventory of the City's then-existing trees or establish any procedures or guidelines for pruning, removing, or otherwise maintaining city-owned trees.

In 1976, the City adopted a "Master Street Tree Plan," which listed the official tree for each street in the City and included an inventory of the City's then-existing trees.³ Like the Official Street Tree List, the Master Street Tree Plan did not establish any procedures or guidelines for removing or otherwise maintaining city-owned trees. In 1989, the City published an updated inventory of its trees.

In 1992, the City adopted Municipal Code Chapter 8.52, entitled "City Trees and Tree Protection Ordinance" (Ordinance).⁴ The Ordinance established city-wide policies for protecting, maintaining, and removing trees that are part of the City's urban forest.⁵

The Ordinance identifies the types of trees that fall within its scope, including "Public Trees" (public trees) and "Street Trees" (street trees). The Ordinance defines a public tree as "a tree located in a place or area under ownership or control of the city including but without limitation streets, parkways, open space, parkland and including city owned property under the operational control of another entity by virtue of a lease, license, operating or other agreement." The Ordinance defines a street tree as "any public tree whose trunk is located primarily within any parkway, public sidewalk, street median, traffic island or other right of way under the ownership or control of the city by easement, license, fee title or other permissive grant of use."

The Ordinance does not establish specific design standards or parameters for the planting or removal of street trees, nor does it include any maintenance or pruning schedules for street trees. The Ordinance does, however, prohibit members of the public from pruning, removing, or otherwise injuring any street trees, and it establishes a procedure through which members of the public may request the City to inspect, remove, or prune a street tree.

The City Manager is tasked with implementing the Ordinance. The City Manager's responsibilities include, among other things: planting, maintaining, caring for, and removing trees covered by the Ordinance; developing maintenance standards for trees located in public places; issuing permits under the Ordinance; and enforcing the Ordinance by issuing compliance orders or administrative citations.

In either 2005 or 2010, the City implemented a policy of inspecting and maintaining its street trees every five years. A certified arborist testified that the City's five-year maintenance schedule was consistent with the industry standard for maintaining trees and exceeded the standards used by most other cities.⁶

2. The Dusseaults' Property

In 2004, Sarah and Christopher Dusseault purchased a home on Hillside Terrace in Pasadena. The Dusseaults' property is separated from the street by a 20-foot-wide dirt parkway that the City owns. At the time the Dusseaults purchased their home, four Canary Island Pine trees stood in the parkway.⁷

The trees were planted in the late 1940s or early 1950s by an unknown party.⁸

In addition to Trees F-1 through F-4, there were shrubs inside the city-owned parkway that the prior owners of the Dusseaults' home had planted. The Dusseaults maintained the shrubs using a sprinkler system that they owned.⁹ The sprinkler system also irrigated the city-owned trees, which may have caused them to grow between 40 to 50 feet taller than they would have grown with only natural irrigation.

The City inspected the trees in front of the Dusseaults' property on three occasions between 2006 and 2008. In April 2006, the City inspected Trees F-2 and F-3 after Sarah Dusseault reported that Tree F-3 had started to lean toward the family's house. The City determined that Tree F-3 did not need to be removed and scheduled Trees F-2 and F-3 for pruning. In April 2007, the City pruned Trees F-2 and F-3.¹⁰ In February 2008, the City removed Tree F-4 after it died.

In early 2011, the Dusseaults re-landscaped the parkway in front of their property. They replaced some of the existing vegetation with drought-resistant plants and shrubs and installed a new drought-resistant irrigation system. A neighbor testified that during the landscaping project, one of the workers hired by the Dusseaults removed chunks of tree roots near the base of Tree F-2, the largest of which was about two feet long and the width of a human fist.

3. The Storm

During the evening of November 30, 2011, a storm carrying hurricane-force winds struck Pasadena. The storm injured more than 5,000 city-owned trees, more than 2,000 of which were uprooted. Around 12:30 a.m. on December 1, 2011, Tree F-2 fell, causing severe damage to the Dusseaults' home. At the time it fell, Tree F-2 was around 100 feet tall.

The storm was unusually destructive for several reasons. First, the storm carried hurricane-force winds, which are measured at 73 miles per hour or higher. A weather station located about three miles from the Dusseaults' home measured gusts of wind ranging from 79 to 101 miles per hour between midnight and 3:00 a.m. on the night of the storm. Second, the gusts of wind changed direction rapidly. Finally, the winds approached the City from an unusual direction. The Santa Ana winds that frequently strike the City tend to approach from the northeast. The storm's winds, on the other hand, approached the City from the north and northwest. Trees are more likely to fall when they are struck by winds that approach from an unusual direction because trees "adapt their roots and their branching structure to a specific wind pattern."

4. Mercury's Lawsuit

Mercury paid the Dusseaults more than $700,000 in insurance benefits for the damage that Tree F-2 caused to their home. In July 2012, Mercury, as subrogee under the Dusseaults' insurance policy, sued the City for inverse condemnation alleging the City was liable for the damage caused to the Dusseaults' home because the City owned Tree F-2.¹¹ On May 11, 2015, the court commenced a four-day bench trial.

On July 24, 2015, the court issued a statement of decision and entered judgment in favor of Mercury. The court found the City liable for inverse condemnation on the following grounds: "1. The tree that fell was a public improvement maintained for a public purpose; [¶] 2. The damage to the residence of Mercury's insured was proximately caused by the public improvement; [¶] 3. The City is strictly liable for the property damage under inverse condemnation; [¶] [and] 4. The doctrine of superseding cause does not apply, under these facts, to the City's liability under inverse condemnation." The court explained its ruling as follows: "[T]he Canary Island pine tree that fell on and damaged the [Dusseaults'] residence was a work of public improvement and subjects the City to liability for inverse condemnation. The damage to the residence of Mercury's insured was proximately caused by the public improvement. The City's maintenance of a 110 foot tall Canary Island pine tree only 60 feet away from the insured's residence exposed that property owner to a peril from the falling of the tree, caused by whatever event, to which she would not otherwise have been exposed. Because the...