Yue v. City of Auburn, C009412

• Decision Date: 31 January 1992
• Docket Number: No. C009412,C009412
• Citation: 4 Cal.Rptr.2d 653,3 Cal.App.4th 751
• Parties: Wilbert J. YUE et al., Plaintiffs and Appellants, v. CITY OF AUBURN, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 653

4 Cal.Rptr.2d 653

3 Cal.App.4th 751

Wilbert J. YUE et al., Plaintiffs and Appellants, v. CITY OF AUBURN, Defendant and Respondent.

No. C009412.

Court of Appeal, Third District, California.

Jan. 31, 1992.

Daniel P. Patterson, Auburn, and Curran & Alschuler, Donald W. Curran, Oakland, for plaintiffs and appellants.

Stumbos, Mason & Thomas, Douglas W. Brown, Sacramento, for defendant and respondent.

MARLER, Associate Justice.

This appeal is taken from an order and judgment of dismissal entered by the trial court after sustaining the general demurrer to plaintiffs' second amended complaint for inverse condemnation without leave to amend. We shall reverse.

FACTS AND PROCEDURAL HISTORY

On May 23, 1986, Richard Yue, on behalf of RHRH, Inc. (doing business as the Shanghai Restaurant and Bar) filed a claim against the city of Auburn alleging that his restaurant and bar, located in the old city portion of Auburn, was damaged on February 18, 1986, by flooding and excessive water "caused by [a] poorly engineered drainage system." This claim was rejected by the city on June 12, 1986.

On December 3, 1986, plaintiffs filed a complaint in superior court alleging a taking by inverse condemnation and a second cause of action for negligence. After a The gravamen of the complaint is as follows: A development known as the Skyline Subdivision Project was built above plaintiffs' property. Defendant "planned, approved, designed, ... constructed, ... and otherwise substantially participated in activities for the public use or benefit including the exercise of dominion and control over drainage courses which included offsite storm drainage facilities both man-made and natural dedicated for public use as a condition for the development of the upstream Skyline Subdivision Project...." The subdivision is in the Brewery Lane drainage basin and plaintiffs' land is below, in the Old Town area. The construction of the subdivision substantially increased impervious surfaces which in turn substantially increased storm water runoff. The maximum inflow from the Brewery basin culvert is 105 cubic feet per second (cfs) while the capacity of the pre-existing drainage structure below is 75 cfs. Defendant failed to require the developer of the subdivision to mitigate the storm water runoff and defendant failed to upgrade its drainage facilities to accommodate the increased flow of water. Defendant's drainage facilities are inadequate to handle the increased storm water runoff and plaintiffs' land has been inundated with water repeatedly as a consequence.

succession of amendments and demurrers, plaintiffs abandoned their negligence cause of action because of their failure to meet the filing requirements of the Government Tort Claims Act (Gov.Code, § 900 et seq.), and ultimately filed a second amended complaint based solely on inverse condemnation. This complaint sought money damages for loss in [3 Cal.App.4th 756] value to plaintiff Wilbert Yue's ownership interest in the real property and for loss in value of RHRH's business and leasehold interest in the property based on several separate incidents of flooding.

On April 11, 1990, the city demurred to the second amended complaint for failure to state a cause of action. This general demurrer was sustained without leave to amend on May 23, 1990, due to plaintiffs' failure to plead that the city's "flood control project failed to work as intended and that the failure was the result of some unreasonable conduct on the part of the public agency." Thereafter, the judgment dismissing the complaint was entered, from which plaintiffs timely appealed.

DISCUSSION

I

The standard of review on an appeal from judgment of dismissal following sustaining of a general demurrer is guided by long settled rules. We treat the demurrer as admitting all material facts properly pleaded, as well as those which reasonably arise by implication, but not contentions, deductions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58; Douglas v. E. & J. Gallo Winery (1977) 69 Cal.App.3d 103, 114, 137 Cal.Rptr. 797; Beason v. Griff (1954) 127 Cal.App.2d 382, 386-387, 274 P.2d 47.) "Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context." (Blank, supra, 39 Cal.3d at p. 318, 216 Cal.Rptr. 718, 703 P.2d 58.) When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action on any theory. (Ibid; Beason, supra, 127 Cal.App.2d at pp. 386-387, 274 P.2d 47.) Moreover, " 'the allegations of the complaint must be liberally construed with a view to attaining substantial justice among the parties.' " (Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 486, 229 Cal.Rptr. 324, 723 P.2d 64, quoting Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 244-245, 74 Cal.Rptr. 398, 449 P.2d 462.) A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations. (Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 922, 216 Cal.Rptr. 345, 702 P.2d 503.)

II

The dispute on appeal centers on the requirements for pleading an inverse condemnation cause of action based on water damage. That a dispute exists is understandable as there is considerable confusion in the law regarding the requirements for such a cause of action. ¹

Defendant contends that the trial court was correct in ruling that the second amended complaint is defective because it fails to plead the conjunction of substantial causation and unreasonableness as set forth in Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 253 Cal.Rptr. 693, 764 P.2d 1070. Defendant argues we should follow the trial court's lead and apply the specific holding of Belair that "when a public flood control improvement fails to function as intended and properties historically subject to flooding are damaged as a proximate result thereof, plaintiffs' recovery in inverse condemnation requires proof that the failure was attributable to some unreasonable conduct on the part of the defendant public entities." (Belair, supra, at p. 567, 253 Cal.Rptr. 693, 764 P.2d 1070, emphasis added.)

Plaintiffs, on the other hand, maintain that they have adequately pleaded a cause of action in inverse condemnation under the requirements applicable to the facts of this case.

For reasons which follow, we conclude that Belair does not apply to the case at bar and that plaintiffs have stated a cause of action in inverse condemnation.

III

There are causes of action for inverse condemnation due to water damage which differ according to the type of water involved. (Van Alstyne, 20 Hastings L.J. (1969) 431, 448-465; 4 Witkin, Summary of Cal.Law (3d ed.1985) Real Property, §§ 797-806, pp. 975-983; Condemnation Practice in California (Cont.Ed.Bar 1973) Inverse Condemnation, §§ 13.13-13.17, pp. 348-354; 5 Miller & Starr, Cal.Real Estate Law 2d (1989) Adjoining Landowners, § 14.20-14.23, pp. 343-357; 2 Nichols on Eminent Domain (3d ed.1990) Taking and Damage, § 6.08, pp. 6-50--6-51.) The policy considerations and pleading requirements vary considerably with each type. Thus, the determination of whether there is a cause of action in inverse condemnation for water damage begins with the traditional analytical approach of finding what type of water caused the damage.

This categorization process originated in tort cases and is followed in inverse condemnation lawsuits as well. "[I]nverse liability of public agencies is determined in the main by the peculiarities of private law rules governing interference with " 'surface waters,' 'flood waters,' and 'stream waters.' [ ]" (Van Alstyne, op. cit. supra, 20 Hastings L.J. at pp. 448-449.) The legal rights and consequences following such categorization of water types have recently been summarized as follows: "First, one has no right to obstruct the flow onto his land of what are technically known as surface waters.... Second, one has the right to protect himself against flood waters ... and for that purpose to obstruct their flow onto his land, and this even though such obstruction causes the water to flow onto the land of another.... Third, one may not obstruct or divert the flow of a natural watercourse. [Citations.]" (Weaver v. Bishop (1988) 206 Cal.App.3d 1351, 254 Cal.Rptr. 425 [private litigants]; emphasis added.)

In the present case, the complaint permits the inference, appropriate on general demurrer, that the water which inundated plaintiffs' property was surface water. The complaint describes increased "impervious surfaces," increased "storm water runoff," "storm waters," and a culvert, built upland from plaintiffs land to collect "runoff." In Keys v. Romley (1967) 64 Cal.2d 396, 50 Cal.Rptr. 273, 412 P.2d 529, the Supreme Court described surface water as being "[w]ater diffused over the surface of land, or contained in depressions therein, and resulting from rain, snow, or which rises to the surface in springs .... It is ... distinguishable from ... water collected in an identifiable body, such as a river or lake. The extraordinary overflow of rivers and streams is known as 'flood water.' " (Id. at p. 400, 50 Cal.Rptr. 273, 412 P.2d 529, emphasis added.)

The facts alleged in the complaint are very similar to those in other inverse condemnation cases involving property damage caused by the diversion or obstruction of surface waters. For example, in Sheffet v. County of Los Angeles (1970) 3 Cal.App.3d 720, 84 Cal.Rptr. 11 the plaintiff recovered for damages caused by reduction in the natural absorption surface in a new development which created an increased and different pattern of surface flow from the upland tract and concentrated runoff to plaintiff's property. Burrows v. State of California (1968) 260 Cal.App.2d 29, 66 Cal.Rptr. 868 was a case in which defendant's road...