Smith v. County of Los Angeles

• Decision Date: 26 September 1989
• Docket Number: No. B033645,B033645
• Citation: 214 Cal.App.3d 266,262 Cal.Rptr. 754
• Court: California Court of Appeals Court of Appeals
• Parties: Bruce SMITH et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES, Defendant and Appellant. Bruce SMITH et al., Plaintiffs and Respondents, v. LOS ANGELES COUNTY WATERWORKS DISTRICT NO. 29, Defendant and Appellant.

Page 754

262 Cal.Rptr. 754

214 Cal.App.3d 266

Bruce SMITH et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES, Defendant and Appellant.

Bruce SMITH et al., Plaintiffs and Respondents, v. LOS ANGELES COUNTY WATERWORKS DISTRICT NO. 29, Defendant and Appellant.

No. B033645.

Court of Appeal, Second District, Division 4, California.

Sept. 26, 1989.

As Modified Oct. 16 and Oct. 24, 1989.

Review Denied Dec. 13, 1989.

Fadem, Berger & Norton, Ann Kelly, Michael M. Berger, and Richard D. Norton, Los Angeles, for plaintiffs and appellants

DeWitt W. Clinton, County Counsel, and John F. Krattli, Deputy County Counsel, and Nossaman, Guthner, Knox & Elliott and James C. Powers, Los Angeles, for defendants and appellants.

GEORGE, Associate Justice.

The owners of three homes destroyed by a landslide, plaintiffs Bruce Smith, Marvin Forrest, and Henry and Janet Del Giudice (hereinafter Homeowners), obtained a judgment against defendant County of Los Angeles (County) in an amount in excess of $3,000,000 on causes of action for inverse condemnation, dangerous condition of public property, and nuisance. Judgment was entered in favor of codefendant Los Angeles County Waterworks District No. 29 (Waterworks).

County appeals from the judgment, contending (1) Homeowners' tort claims for dangerous condition of public property and nuisance were not timely filed pursuant to the California Tort Claims Act, (2) the trial court erred in instructing the jury regarding theories of liability not included in Homeowners' tort claims, (3) the trial court erred in prohibiting County from calling two County geologists as witnesses because County had not designated them as expert witnesses prior to trial, (4) the trial court erred in refusing to exclude evidence of County workers' recommendations for remedial measures, (5) because removal of slide debris from the roadway was an exercise of police power and reasonable as a matter of law, any resulting damage was noncompensable, (6) County was not liable for damages for emotional distress because there was no preexisting relationship between the parties and no intentional tort was committed, (7) the portion of the judgment awarding damages for emotional distress is not supported by substantial evidence, (8) the trial court erred in declining to submit to the jury the special verdict form proposed by County, and (9) the trial court erred in awarding interest on the judgment from June 15, 1981.

Homeowners cross-appeal, contending the trial court erred in (1) reducing the damages awarded to plaintiff Forrest by $110,000 because Security Pacific Bank reconveyed its trust deed on Forrest's property, and (2) determining the rate of prejudgment interest. Waterworks appeals from a postjudgment order denying Waterworks its costs. ¹ For the reasons that follow, we affirm the judgment in all respects with the exception of the order denying Waterworks its costs, which we reverse, remanding the matter for a determination of the amount of such costs.

FACTUAL AND PROCEDURAL SUMMARY

On August 30, 1982, Homeowners filed tort claims against County alleging property On April 22, 1983, Homeowners filed a complaint against County (Super.Ct.L.A.County, No. WEC 79919), which included causes of action for inverse condemnation and nuisance. ² In an amended complaint filed October 14, 1983, Homeowners alleged the following. There are three County roads, including Rambla Pacifico, on the hillside where Homeowners' residences are located. The hillside was the site of an ancient landslide (approximately 15,000 years ago) but had been stable in recent times. In the 1930's, County cut into the hillside to build the three roads and thereby "destabilized the old landslide by removing lateral and subjacent support...." Rains deposited slide debris on the roadways, adding stability to the hillside by providing lateral support, but County removed the slide debris without providing "replacement stabilization," thus reactivating the landslide. Homeowners further alleged County issued permits for construction of additional homes and "seepage pits," which contributed to the landslide by introducing additional water into the hillside.

                damage and emotional distress.  Each claim alleged that County had "cut into the hill" to create Rambla Pacifico Road, and that this "cut removed support" for those residences and "created a landslide danger."   Homeowners stated their houses had been, or would have to be, demolished and Homeowners had suffered emotional distress
                

On August 13, 1985, Homeowners filed a complaint against Waterworks (Super.Ct.L.A.County, No. WEC 96856) alleging a cause of action for inverse condemnation, claiming the water supply system for homes in the area was negligently designed and maintained and, consequently, frequently discharged water into the hillside, thereby contributing to the landslide. ³ On November 6, 1986, the two actions were consolidated.

The parties agreed the jury would decide the causes of action for dangerous condition of public property and nuisance and whether damages for emotional distress resulted. The jury also was charged with rendering an advisory verdict regarding the cause of action for inverse condemnation, with that matter to be decided by the court.

At trial, Homeowners introduced the expert testimony of geologist Douglas Moran, who testified two large ancient landslides had occurred on the western slope of Las Flores Canyon approximately 15,000 years ago. Thereafter a substantial amount of soil accumulated in the bottom of Las Flores Canyon, buttressing the hillside and stabilizing the slope.

In 1978, a landslide above Rambla Pacifico destroyed a home owned by Truesdell Brown near the property owned by plaintiff Forrest. Moran testified this slide, referred to as the "Rambla Oriente Landslide," was caused by construction of Rambla Pacifico Road and was triggered by heavy rainfall. Moran's testimony made reference to several reports, later admitted into evidence, prepared by County employees. These reports, most of which were either written by or reviewed by County geologists Arthur Keene and James Shuttleworth, identified construction of Rambla Pacifico Road and removal of slide debris from that road as possible contributing factors to the Rambla Oriente landslide and noted that "[h]eadward enlargement of the landslide[ ] should be anticipated."

In 1979, there appeared the first indications that the larger Rambla Pacifico landslide was occurring. Over the next several years, the damage caused by this landslide continued to increase in severity. A report County geologist Shuttleworth was called by Homeowners as an adverse witness. (Evid.Code, § 776.) When Shuttleworth was examined concerning the effect of a road cut at the "toe" or bottom portion of a landslide, County's attorney requested a conference outside the hearing of the jury at which he noted Shuttleworth had not been called as an expert witness and that if Homeowners elicited his opinions, County would be entitled to do the same on cross-examination. When the trial court agreed that Homeowners' last question would "open the door to [Shuttleworth's] expert opinion," Homeowners withdrew the question.

                prepared by County in November 1980 stated it was "difficult to determine" whether construction of Rambla Pacifico Road was a contributing cause of the landslide and recommended further tests.  An addendum to this report recommended sealing cracks in the pavement of Rambla Pacifico Road because "[w]ater entering these cracks will decrease the stability of the landslide."   Rambla Pacifico Road was closed in 1984, and by June 1985 the landslide encompassed 18 acres in size and caused 8 houses, including those owned by Homeowners, to be destroyed
                

County called as an expert witness geologist Gary Rasmussen, who testified the Rambla Pacifico landslide was one of a series of landslides which had occurred on the hillside subsequent to the ancient landslide and was triggered not by the construction of Rambla Pacifico Road but by unusually heavy rainfall coupled with sewage effluent. Rasmussen further stated that expansion of the Rambla Oriente landslide, which destroyed the Brown home, did not cause the Rambla Pacifico landslide, which destroyed Homeowners' residences. Instead the Rambla Oriente landslide was a part of, and thus was caused by, the larger Rambla Pacifico landslide.

The jury found County liable on the theories of dangerous condition of public property and nuisance and awarded Homeowners damages for emotional distress in the aggregate amount of $112,000. In the advisory portion of its verdict involving the cause of action for inverse condemnation, the jury found County liable but Waterworks not liable. After further argument to the trial court, the court agreed with the jury's advisory verdict on the inverse condemnation cause of action, finding Waterworks not liable and awarding damages against County for inverse condemnation in an aggregate amount of $1,283,000, plus interest from June 15, 1981, as well as costs and attorney's fees. The total amount of the judgment against County was nearly $3,300,000. County appealed from the judgment, Homeowners filed a cross-appeal, and Waterworks appealed from a postjudgment order denying it costs.

DISCUSSION

COUNTY'S APPEAL

I HOMEOWNERS' TORT CLAIMS, ALLEGING NUISANCE AND DANGEROUS CONDITION OF PUBLIC PROPERTY, WERE TIMELY FILED AND PROVIDED COUNTY WITH SUFFICIENT NOTICE OF THE THEORIES OF LIABILITY RELIED UPON AT TRIAL BY HOMEOWNERS

In the trial court, County argued that the tort claims filed by Homeowners, pursuant to Government Code section 945.4, ⁴ did not sufficiently allege nuisance and dangerous condition of public property in that they alleged only that construction of Rambla Pacifico Road caused the landslide which destroyed Homeowners' residences. County thus asserted that Homeowners were barred from contending at trial that clearance of slide...