Youngblood v. City of Los Angeles
| Decision Date | 09 February 1961 |
| Citation | 10 Cal.Rptr. 729 |
| Parties | N. E. YOUNGBLOOD, Plaintiff and Respondent, v. CITY OF LOS ANGELES, a Municipal Corporation; Los Angeles County Flood Control District, a body Corporate and Politic, et al., Defendants, Los Angeles County Flood Control District, Appellant. Civ. 24609. |
| Court | California Court of Appeals Court of Appeals |
Harold W. Kennedy, County Counsel, Lloyd S. Davis, Deputy County Counsel, Los Angeles, for appellant.
N. E. Youngblood and Marvin Gross, Beverly Hills, for respondent.
We would not reverse the judgment in plaintiff's favor for just a technical error in the record, but the failure to observe the line between liability and freedom from liability is not a technical error just because the line is finely drawn, and it is because of such a failure that we are setting the judgment aside.
This is the second judgment in this case, the first one being a judgment of nonsuit entered in favor of the then defendants: the City of Los Angeles, Max Rosenberg and Sons and the Los Angeles County Flood Control District. On appeal, the judgment in favor of the two defendants first named was affirmed, but that against the Los Angeles County Flood Control District was reversed, with the direction that the plaintiff be permitted to amend his complaint. Youngblood v. City of Los Angeles, 1958, 160 Cal.App.2d 481, 325 P.2d 587. He did so, with the Los Angeles County Flood Control District the only defendant; a demurrer to the amended complaint was overruled; considerable evidence was taken upon the trial, much of it the basis for conflicting inferences; findings 15 Cal.Rptr. 904 were filed; a judgment awarding the plaintiff $9,000 damages and interest in the sum of $5,013.75 entered; and the defendant appealed.
The action is one for damages due to erosion to the lower portion of plaintiff's property on which his house is built. A natural water course--dry most of the year, but in flood on January 15, 1952,--adjoins plaintiff's property. On the date mentioned, the amended complaint alleged, there existed 'a partially completed double pipe and wire revetment in said waterway * * * which revetment had been engineered and constructed by the defendant * * * and was managed, maintained and controlled by said defendant.' For some inexplicable reason, the defendant in its answer denied that it engineered, constructed, or maintained the revetment, but it admitted in the pre-trial statement that these facts were true and they were found to be true. The revetment was constructed some distance downstream from plaintiff's place, its upper end being between 50 and 150 feet below his property.
The allegations of paragraph V of the amended pleading were denied by defendant's answer. We quote this paragraph and the finding relating to it: 'It is true that during the rainfall of January 1952, and on of about January 15, 1952, the revetment which was built, managed and maintained by the defendant Los Angeles County Flood Control District became clogged with debris either in the revetment channel itself or with debris which accumulated in front of the revetment and adjacent thereto, and as a proximate result thereof water was diverted from the natural waterway and waterflow onto plaintiff's land, causing erosion and loss of soil, all to plaintiff's damage in the sum of $9000.00.'
It will be noted that there is no causal connection alleged, between the construction and maintenance of the revetment and the erosion of plaintiff's property. The significance of this omission will be emphasized when, in a moment, we come to consider the law established by the decision on the previous appeal. We first point out that the silence of the amended complaint respecting any connection between any act of the defendant and plaintiff's damage was not broken by the issues remaining in dispute, as agreed upon by counsel and adopted in the pretrial order:
At the previous trial the plaintiff attached much significance to the act of the Flood Control District in removing a fallen tree from the path of the flood water. With this foreword we quote at some length from the opinion on the former appeal (Youngblood v. City of Los Angeles, supra, 1958, 160 Cal.App.2d 481, 487, 325 P.2d 587, 590-591): 'We have concluded that the removal of the tree is not the event which creates liability (if any there be) upon the Flood Control District. It plainly appears that the waters would have met and, creating a whirlpool, have eaten away plaintiff's land if the tree had not fallen. Upon the facts disclosed by...
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