SKOUMBAS v. CITY of ORINDA

• Decision Date: 22 October 2008
• Docket Number: No. A117960.,A117960.
• Citation: 165 Cal.App.4th 783,81 Cal.Rptr.3d 242
• Court: California Court of Appeals Court of Appeals
• Parties: Alexandra SKOUMBAS et al., Plaintiffs and Appellants, v. CITY OF ORINDA, Defendant and Respondent.

165 Cal.App.4th 783

81 Cal.Rptr.3d 242

Alexandra SKOUMBAS et al., Plaintiffs and Appellants,

v.CITY OF ORINDA, Defendant and Respondent.

No. A117960.

Court of Appeal, First District, California.

July 31, 2008.

Review Denied Oct. 22, 2008. ^*

COPYRIGHT MATERIAL OMITTED.

Law Offices of Nick T. Reckas, Nick T. Reckas, Greenbrae, for Appellants.

Clapp, Moroney, Bellagamba & Vucinich, James G. Lucier, San Bruno, for Amici Curiae on behalf of Appellants.

Lepper & Harrington, Gary M. Lepper, Paul V. Samoni, Walnut Creek, for Respondent.

SIGGINS, J.

Konstantine and Alexandra Skoumbas appeal the dismissal of their suit seeking damages for inverse condemnation, nuisance, and trespass, following a grant of summary judgment in favor of the City of Orinda (the City). The trial court concluded the City could not be held liable for erosion caused by water discharged from a storm drain because there was no evidence the entire drainage system was a public improvement owned by the City or its predecessor in interest. We conclude that the critical inquiry is not whether the entire system was a public improvement, but rather whether the City acted reasonably in its maintenance and control over those portions of the drainage system it does own. Accordingly, we conclude the existence of triable issues of material fact precluded the grant of summary judgment, and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

The Skoumbas property consists of several undeveloped parcels of land on an Orinda hillside in an area known as the Oak Springs subdivision that was created in the 1920's. Their property is to the west and downhill from a subdivision, Tract 2742, developed in the 1960's. Tract 2742 includes Candlestick Road, a publicly dedicated street that ends in a cul-de-sac. Surface water from the surrounding area of Tract 2742 flows onto Candlestick Road, and is collected in a catch basin that channels the water into an underground metal pipe. The metal pipe runs under Tract 2742, and continues downhill into the Oak Springs subdivision, where it discharges surface water near the uphill border of the Skoumbas property. The surface water discharge has allegedly caused substantial erosion and damaged the Skoumbas property. The City admits it owns Candlestick Road, the catch basin, and the first 40 feet of drainpipe, but contends it is not responsible for any flow of water below the first 40 feet of pipe because the City says the rest of the pipe is privately owned.

The drainage system for Tract 2742 was originally constructed by the subdivision's developer. ¹ As it was originally constructed, the Candlestick Road storm drain was an 18-inch diameter drainage pipe laid in a 10-foot drainage easement on Lots 18 and 19 that extended downhill from the end of Candlestick Road and ended on Lot 132 of the Oak Springs subdivision. ² The county did not accept the streets in the Oak Springs subdivision for public use, and no easement was identified on the subdivision map within the boundaries of Lot 132. When the subdivision map for Tract 2742 was approved in 1960, the county board of supervisors “did not accept on behalf of the public any of the streets, roads, avenues or easements shown thereon as dedicated to public use.”

The storm drainage from Candlestick Road was the subject of extended discussion between the developer and the county around that time. A county flood control official advised the developer: “[T]he storm drain at the westerly end of Candlestick Road has been improperly located and does not extend to Patricia Lane.... [¶] It is recommended that the existing storm drain be extended to Patricia Road, that a culvert with a[n] ‘L’ headwall be placed beneath Patricia Road to direct the storm flow into the natural channel to the southwest, and sacked concrete outlet protection be constructed. [¶] This work shall be accomplished under a ‘change order’ submitted by the developer to the Public Works Department accompanied by a drawing showing [relevant details]. [¶] It is urgent that the foregoing described work be completed at the earliest date.” ³

The developer's engineers then sent the flood control district a plan for “revisions to drainage at the end of Candlestick Road.” The drawing showed an extension to the existing pipe that included a new 24-inch pipe that crossed under Patricia Lane. ⁴

In 1964, work was done to reconstruct and repair slide damage that affected Candlestick Road. As part of that work, Candlestick Road was shortened and repositioned. In its new configuration, the road ended some 40 feet away from the top end of the drain line that was originally installed by the developer of Tract 2742. A new catch basin was constructed at the end of the street and 40 feet of pipe was laid to connect the catch basin to the original drain line. The new section of drain was placed in a portion of lot 18 of Tract 2742 that was a county-owned easement. In March 1966, Candlestick Road, as relocated and reconstituted, was dedicated and accepted as a public road. ⁵

It appears that erosion caused by the discharge from the storm drain off Candlestick Road was the subject of discussion between the county and an area property owner in 1964. An owner of property that adjoined Lot 132 exchanged correspondence with the public works department in October 1964 where he said the “culvert and flume [from Candlestick Road] are now carrying the entire run-off of the hill. Over two previous rainy seasons this flume has discharged water to the extent that a gulley approximately twenty feet deep has been cut out of the soil.” But it does not appear that the drain was repaired or replaced at that time. In 1965, the same property owner wrote to the public works department to say that while earth movement caused by grading activities on Tract 2742 was repaired, “the cavern or ravine caused by [the] drainage pipe still exists.” The public works department responded to the property owner in September 1965 that it would not take any further action on the matter. The parties now disagree over whether someone altered the lowest portion of the drainpipe at some later date. ⁶

The Skoumbases sued the City and the uphill owners whose property is traversed by the pipe running from Candlestick Road, seeking recovery for damages caused by the water that discharged onto their property. ⁷ The complaint alleged nuisance and trespass claims against all defendants, and inverse condemnation against the City.

The City moved for summary judgment, asserting it had no responsibility for the discharge of the storm water because the lower portion of the storm drain was privately constructed and privately owned. Thus, the storm drain was not a public improvement. The Skoumbases opposed, arguing the City could be held liable because the water that damaged their property originated in a public improvement, and there were triable issues of fact as to the City's implied acceptance of the entire pipeline. ⁸ The trial court granted summary judgment for the City because there was no evidence the City expressly or impliedly accepted the lower segments of the drainage pipe as a public improvement. ⁹ The Skoumbases timely appealed. ¹⁰

DISCUSSION

A. Standard of Review

We review the trial court's ruling on summary judgment de novo. ( Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 100, 41 Cal.Rptr.3d 229; Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 69, 81 Cal.Rptr.2d 360.) We view the evidence in a light favorable to plaintiffs as the losing party, construe their evidentiary submission liberally and strictly scrutinize the defendant's own showing. ( Andrews, supra, at p. 100, 41 Cal.Rptr.3d 229.) “Summary judgment is a drastic remedy to be used sparingly, and any doubts about the propriety of summary judgment must be resolved in favor of the opposing party.” ( Mateel Environmental Justice Foundation v. Edmund A. Gray Co. (2003) 115 Cal.App.4th 8, 17, 9 Cal.Rptr.3d 486.)

“ ‘A motion for summary judgment must be granted if all of the papers submitted show “there is no triable issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law. In determining whether the papers show ... there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, ... and all inferences reasonably deducible from the evidence....” ( [Code Civ. Proc.,] § 437c, subd. (c).) A defendant has met its burden of showing a cause of action has no merit if it “has shown that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to that cause of action. Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show ... a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff ... may not rely upon the mere allegations or denials of its pleadings to show ... a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists....” ’ ” ( Andrews v. Foster Wheeler LLC, supra, 138 Cal.App.4th at p. 101, 41 Cal.Rptr.3d 229.)

Our de novo review of the record leads us to conclude that the summary judgment in favor of the City must be reversed. We conclude the City did not establish that it had a complete defense to liability for damages to private property caused by water collected in a public catch basin off a public street and channeled into a section of public drainpipe. As a matter of law, the City's ownership and control of a portion of the drainage system makes the City potentially liable for damage substantially caused by the City's unreasonable diversion of water through the City-owned portions of the system.

B. Liability for a Public Agency's Diversion of Surface Water

“Water diffused over the surface of land, or contained in depressions therein, and resulting from rain, snow, or...