Ruiz v. Cnty. of San Diego

• Decision Date: 17 March 2020
• Docket Number: D075355,D074654
• Citation: 47 Cal.App.5th 504,260 Cal.Rptr.3d 740
• Court: California Court of Appeals Court of Appeals
• Parties: Sonia RUIZ et al., Plaintiffs and Respondents, v. COUNTY OF SAN DIEGO, Defendant and Appellant.

47 Cal.App.5th 504

260 Cal.Rptr.3d 740

Sonia RUIZ et al., Plaintiffs and Respondents,

v.COUNTY OF SAN DIEGO, Defendant and Appellant.

D074654

D075355

Court of Appeal, Fourth District, Division 1, California.

Filed March 17, 2020

Thomas E. Montgomery, County Counsel and Norman Thomas Deak, Deputy County Counsel for Defendant and Appellant.

Thorsnes Bartolotta McGuire, Vincent J. Bartolotta, Karen R. Frostrom, and J. Domenic Martini for Plaintiffs and Respondents.

Laura E. Hirahara for California State Association of Counties and League of California Cities, as Amicus Curiae on behalf of Defendant and Appellant.

HUFFMAN, Acting P. J. Sonia and Hector Ruiz's (together Ruiz) home flooded because their privately owned underground storm drain pipe rusted out over 50 years of use. They sued the County of San Diego (County) for inverse condemnation, and after a bench trial the court entered judgment in their favor for $328,000—essentially the cost of replacing their metal pipe (the Ruiz pipe) with a reinforced concrete pipe.

The primary issue on appeal is whether a privately owned storm drain pipe located on private property, for which a public entity had rejected an offer of dedication, nevertheless becomes a public improvement because "public water" drains through it. We agree with the County that on this record and under settled law, the answer is no. The County also contends that the trial court's alternative basis for imposing liability—that the County acted unreasonably in discharging water through a public drainage system that connects to the Ruiz pipe—also fails. Even viewing the evidence most favorably to Ruiz, the evidence is insufficient to sustain the judgment on this theory. Accordingly, we reverse with directions to enter judgment for the County.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Ruiz Property and Pipe

In 1998, Ruiz purchased a single family home in an unincorporated part of the County (the Property). The Property is at the east end of a valley (Valley). Before the Ruiz's subdivision was developed, the natural watercourse in the Valley was a stream.¹ The stream ran easterly, draining surface waters across the Property and continuing to a lake.

At some point before the area was developed in 1959, the Valley watercourse was improved with above-ground concrete lined channels, including one on the Property. These carried water to and across the Property.

In 1959, developers building homes in the Valley replaced the above-ground concrete channel with underground reinforced concrete pipe (RCP). The developers "essentially dropped the RCP pipe system right into that concrete drainage channel ...." This included the existing drainage channel on the Property—except that on the Property, instead of using RCP, the developer buried corrugated metal pipe (the Ruiz pipe) on top of the existing concrete-lined channel. As a result, Valley water that previously drained over the Property now went underground, allowing the lot to be developed.

The Ruiz pipe connects to and is a continuation of the Valley's storm drain system and is part of the natural watercourse.² There are about 10 private properties between the Ruiz pipe and the closest public street. Thus, the final 450 feet of the Valley pipeline before reaching the Ruiz pipe is also on private property. The following diagram depicts the Property with the Ruiz pipe.:

The County did not design, construct, install, or maintain the Ruiz pipe. The County does not own the pipe—Ruiz does. In 1959, the developer offered to dedicate an easement to the Ruiz pipe; however, the County did not accept that offer.

B. Valley Drainage Into the Ruiz Pipe

In the photograph below, the Property is in the upper right, denoted as "530 Broadview St." The upstream drainage area boundary—the "tributary area"—is marked by the dotted line. The tributary area contains private homes and public streets—a substantial part of which is in City of San Diego (City) jurisdiction. A "fair amount" of the water in the drainage system originates from property within the City's jurisdiction.

Water in the tributary area drains into curb inlets, underground pipes (some publicly and some privately owned), through the Ruiz pipe, and ultimately discharges near a freeway. The image below shows part of the system's flow near the Property.

C. Flooding

In December 2014 and again in January 2016, the Property flooded during rain, damaging furniture and floor coverings in Ruiz's home. The flooding occurred because part of the bottom of the Ruiz pipe had rusted away. Ruiz's civil engineering expert, Joel Morrison, testified that constant water runoff from upstream privately owned homes was alone enough to cause the pipe to rust out over the years. The useful life of corrugated metal pipe is about 30 years. The Ruiz pipe, which lasted about 50 years, simply outlived its useful life.

Shortly after the 2016 flood, Mr. Ruiz repaired the pipe by patching the rusted-away bottom with cement and reconnecting the pipe to a junction. The parties dispute the adequacy of this repair—Ruiz's expert calling it a "band-aid" while the County's expert testified the pipe should now last another 10 to 15 years. In any event, it is undisputed that the Property has not flooded since Mr. Ruiz's repair.

D. Litigation

When Ruiz purchased the Property in 1998, they were unaware of both the pipe and the manhole providing access to it.³ Mr. Ruiz did not notice the manhole until after the December 2014 flood. Although Mrs. Ruiz saw the manhole in 1999, she did not know what it was and ignored it.

Ruiz sued the County for trespass, nuisance, inverse condemnation, and declaratory relief. At trial, Ruiz's attorney asserted "two alternate theories" of liability: (1) The County acted "unreasonably" in discharging water through the Ruiz pipe without inspecting or maintaining the pipe; and (2) By using the Ruiz pipe for 50 years, the County has "taken an easement over that drainage facility," requiring the County to maintain the Ruiz pipe.⁴ In a posttrial hearing Ruiz's attorney summarized her theories, stating, "The position I took during trial in [sic ] that this is a public work as part of an integrated system that the County used unreasonably without a plan for maintenance. And that's the basis for liability."

After a bench trial, the court issued a statement of decision in Ruiz's favor for inverse condemnation. The court found that "the continuous use of causing public water from the County's drains and inlets through the metal storm drain pipe on the [Ruiz] property caused the pipe to deteriorate and fail, which in turn caused the flooding and damage to [Ruiz's] property." The court found that the County implicitly accepted a drainage easement "requiring the County to maintain the pipe." Citing Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783, 81 Cal.Rptr.3d 242 ( Skoumbas ), the court held that the County's "interest and control of an integrated drainage system makes the [County] liable for the [Ruiz's] damages caused by the [County's] unreasonable diversion of water though the [County]-owned portions of the storm drain system to [Ruiz's] private property." The court dismissed Ruiz's causes of action for trespass and nuisance.⁵ The court awarded Ruiz $322,441, representing the cost to replace the metal pipe with RCP, plus other damages for a total award of $328,033. Subsequently, the court awarded Ruiz $529,540.40 in attorney fees and costs.⁶

DISCUSSION

I. THE TRIAL COURT'S FINDING THAT THE COUNTY IMPLICITLY ACCEPTED A DRAINAGE EASEMENT IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE

A. Introduction

To prevail on inverse condemnation, "the property owner must show there was an invasion or appropriation (a ‘taking’ or ‘damaging’) by a public entity of some valuable property right possessed by the owner, directly and specially affecting the owner to his detriment." ( Prout v. Department of Transportation (2018) 31 Cal.App.5th 200, 211, 242 Cal.Rptr.3d 483 ( Prout ).)

Here, Ruiz contends that the County's 50-year use of their pipe as part of the Valley drainage system "constitutes an acceptance" of a drainage easement and concomitant duty to maintain the pipe—even though in 1959 the County rejected the offer of dedication. The trial court agreed with Ruiz, stating:

"I want to make very clear for the record, for the appellate court that .... [t]he usage and the way that water was used to come down to the Ruiz property, that the County implicitly took that pipe and had an easement to run that water through the Ruiz property."

Elaborating, the court found that by using the Ruiz pipe "for drainage of surface water over fifty years," the County had exercised the requisite "dominion and control" required to impliedly accept the offer of dedication. The County contends this finding is not supported by substantial evidence.

B. The Standard of Review

"Inverse condemnation presents a mixed question of fact and law. [Citation.] We review the trial court's determination of the historical facts for substantial evidence; we review de novo the applicable law and application of that law to the facts." ( Prout, supra , 31 Cal.App.5th at p. 211, 242 Cal.Rptr.3d 483.)⁷ When all the material facts and reasonable inferences from those facts are undisputed, and only one correct legal conclusion may be drawn from those facts, the reviewing court is not bound by the trial court's ruling. ( Sprunk v. Prisma LLC (2017) 14 Cal.App.5th 785, 794, 222 Cal.Rptr.3d 339.)

C. Using the Ruiz Pipe as Part of the Watercourse, Without More, Does Not Make it a Public Improvement or Constitute Implied Acceptance of a Drainage Easement

A private landowner may transfer an interest in real property to the public by making an offer of dedication. However, "[t]here must also be an acceptance by the public of the offer to dedicate. [Citation.] Acceptance may be express or implied." ( Baldwin v. City of L. A. (1999) 70 Cal.App.4th 819, 837, 83 Cal.Rptr.2d 178.) Until an offer of dedication has been accepted,...