Summary
In Insalaco v. Padilla (June 27, 2022, A160164) [nonpub. opn.] 2022 WL 2302058, we reversed summary judgment in favor of defendant Juan Padilla based on concededly material facts identified in Padilla's motion that the Insalacos disputed.
Summary of this case from Insalaco v. W. Cnty. Wastewater Dist.Opinion
A159483 A160164
06-27-2022
ROBERT INSALACO et al., Plaintiffs and Appellants, v. JUAN D. PADILLA, Defendant and Respondent.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. MSC17-00725)
MILLER, J.
This is the second appeal brought by plaintiffs Robert Insalaco and Leslie Lomax (the Insalacos) regarding extensive property damage they sustained in a 2017 landslide. Defendant Juan D. Padilla owns property across the street and uphill from the Insalacos' property. Padilla successfully moved for summary judgment against the Insalacos and was awarded costs. We conclude there were concededly material facts enumerated by Padilla in 1 his motion for summary judgment that the Insalacos disputed, and it was thus error to grant summary judgment. Accordingly, we reverse the judgment and vacate the cost award to Padilla.
In Insalaco v. Hope Lutheran Church of West Contra Costa County (2020) 49 Cal.App.5th 506, 509 (Insalaco I), we reversed summary judgment in favor of defendant Hope Lutheran Church of West Contra Costa County (Church), holding the trial court erred in denying the Insalacos' timely motion for a continuance (Code Civ. Proc., § 437c, subd. (h)). We also concluded there were concededly material facts enumerated by the Church in its motion for summary judgment that were disputed by cross-complainants Mary Wong and Lucas T. Du (Du/Wongs). The Church and the Du/Wongs are not parties to the instant appeal.
FACTUAL AND PROCEDURAL BACKGROUND
The Parties and Litigation
The parties own property on a residential cul-de-sac in El Sobrante that has had a long history of soil movement and landslides. The Insalacos' property at 71 Avenida Martinez was severely damaged in a landslide in 2017. Padilla's property at 64 Avenida Martinez is across the street and uphill from the Insalacos' property. The Insalacos sued a number of neighboring landowners, including Padilla, for various causes of action, including nuisance, trespass, and diversion of surface water.
Padilla's Motion for Summary Judgment
On September 30, 2019, Padilla moved for summary judgment against the Insalacos on the grounds that his property was not the cause of the landslide on the Insalacos' property. In support, Padilla relied on a declaration from Robert Holmer, a registered civil and geotechnical engineer.
Holmer inspected "the site" on June 7, 2018, and January 23, 2019. Holmer conducted a geotechnical investigation, which included drilling and sampling of subgrade soils, laboratory testing, and analysis. He also reviewed extensive documentation of active landslide movement dating back to the 1970's regarding the north side of Avenida Martinez. Padilla's property is on the south side of Avenida Martinez and across the street from the Insalacos' property. 2
It is unclear from the declaration whether "the site" is limited to Padilla's property or if it encompassed the neighboring properties.
Holmer reported that on or about February 2017, a significant landslide occurred that caused severe damage to the Insalacos' house at 71 Avenida Martinez. According to his observation, the slide mass encompasses nearly the entire parcel at 71 Avenida Martinez and a significant portion of the adjacent property at 63 Avenida Martinez (the Du/Wong property). Holmer opined: "The head scarp of the slide extends into Avenida Martinez north of the 64 and 72 parcels. The parcel at 64 Avenida Martinez [Padilla's property] is not located within the slide mass."
From his site visits and testing, which included flooding Padilla's concrete driveway with water from a garden hose, Holmer concluded nearly all of the surface water would flow down the driveway, over the sidewalk, and into the gutter. According to Holmer's subsurface testing, the soil is native clay and considered generally to be impervious. Holmer opined that due to the impervious nature of the native clay soil and the low filtration of the driveway, combined with the lack of any identifiable drainage path from Padilla's property to the slide mass, Padilla's property did not, in any way, contribute to the cause of the slide at the Insalaco property.
According to Holmer, the maximum flow velocity is 0.024 inches/day of water moving through the clay soil.
The Insalacos' Opposition
In opposition to Padilla's motion, the Insalacos submitted a declaration from Alan Kropp, a registered civil and geotechnical engineer with more than 47 years of experience in civil and geotechnical engineering. Kropp believed that the facts relied on by Holmer were irrelevant to the cause of the slide and did not support Holmer's opinion.
Kropp inspected the Insalaco property, the Du/Wong property, and the Padilla property. Kropp reviewed the data collected by Holmer, as well as a 3 significant number of documents and photographs exchanged by the parties. Kropp disagreed with Holmer's opinion that the Padilla property is not located within the slide mass.
In Kropp's opinion, the Padilla property is located in the slide mass as evidenced by the significant displacements in the driveway, sidewalk, curb and street surface in front of Padilla's property. Photographs show a significant and readily visible dip in the pavement forming the driveway, sidewalk and curb directly in front of the Padilla property. The photographs also show subsidence in the surface of Avenida Martinez directly in front of the Padilla property, which is directly across the street from the Insalaco and Du/Wong properties.
According to Kropp, the movement of the landslide mass, as a whole, including that portion on which the Padilla property is located, is a significant factor in the cause of the landslide that damaged the Insalaco property. Kropp opined that the Insalaco and Du/Wong properties cannot be stabilized or repaired without a complete repair of the slide mass, including that portion of the slide on the Padilla property.
Padilla's Reply
In response to the Insalacos' opposition, Padilla argued that the key uncontested fact is that the Padilla property introduced, at most, an imperceptible amount of water into the slide mass, which was insufficient to establish causation. In his declaration, Padilla stated that the cracks in his driveway and sidewalk were present at the time he purchased 64 Avenida Martinez in 2009. Padilla included a photograph from 2009 that showed the cracks in the driveway and sidewalk. Padilla further declared that the cracks in the driveway and sidewalk were not caused by the 2017 landslide. Padilla noticed no appreciable changes in the cracks since the time of the landslide. 4
Padilla argued that the boundary of the slide mass is irrelevant to the issue of causation, and that "even if the slide encroaches into the Padilla property a few inches or even a foot, it proves nothing." Padilla took issue with Kropp's "simplistic opinion that Padilla shares substantial liability for the slide." Specifically, Padilla contended, there was no explanation as to how Padilla failed to act reasonably in the care and maintenance of his property.
Summary Judgment Hearing and Ruling
Prior to the hearing, the trial court issued a tentative ruling granting Padilla's motion. At the beginning of the hearing, counsel for the Insalacos argued there was a factual issue regarding whether Padilla's property was at least partially in the slide mass. The trial court agreed with the Insalacos' counsel that "there is a factorial [sic] issue" regarding the location of Padilla's property. The trial court, however, focused its attention on what it perceived was a lack of evidence to show that Padilla acted negligently vis-à-vis the Insalaco property.
At the close of the hearing, the trial court adopted its tentative ruling and granted the motion for summary judgment. In its written order, the trial court found that Holmer's analysis established that surface water from Padilla's property was diverted into a gutter and did not reach the Insalaco property. Additionally, there was no plausible theory that water flowed underground from Padilla's property onto or into the Insalacos' property in sufficient amounts to contribute to the slide because the clay soil slowed and inhibited water flow. The court determined this was sufficient to shift the burden to the Insalacos "to show a triable issue as to causation and fault."
The court remarked that the Insalacos' opposition did not address Holmer's water movement theory and instead "put all their factual eggs in 5 one basket-their assertion that the slide mass extended onto Padilla's property . . . . The Court agrees that if that were a significant factual issue, it would stand controverted for purposes of summary judgment. Holmer's contrary assertion is terse and conclusory, identifying no factual basis for his opinion that the slide mass did not extend onto Padilla's property. Plaintiffs' expert, Kropp, explains in some detail the factual basis for his view that the slide mass did extend into Padilla's property, a showing that Padilla's reply has not refuted."
The court then "accordingly assumes that the slide mass may have extended onto Padilla's property. But what of it? Plaintiffs' opposition seems to take it for granted that if the slide mass extended onto Padilla's property, then . . . Padilla must be liable for the slide. The Court can't follow that leap of logic." The court further concludes: "[E]ven if it were true that something on Padilla's property contributed causally to the slide, that still wouldn't establish Padilla's liability without dropping the other shoe-fault. . . . Plaintiffs do not identify one single thing that Padilla is accused of negligently doing, or negligently failing to do, that is asserted to have contributed casually to this slide."
Following Padilla's successful summary judgment motion, the court awarded Padilla $44,568.76 in costs, which included $40,798.30 in expert costs.
DISCUSSION
Law of Summary Judgment
The purpose of the summary judgment procedure is not to try the issues but merely to discover through the medium of declarations and other evidence whether there are issues to be tried and whether the parties possess evidence that demands the analysis of trial. 6 (Lederer v. Gursey Schneider LLP (2018) 22 Cal.App.5th 508, 531-532; J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4th 123, 139.) For a defendant to prevail on a motion for summary judgment, they must show at least one element of a plaintiff's cause of action cannot be established, or the defendant has an affirmative defense. (Code Civ. Proc., § 437c, subd. (o); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.)
In ruling on a summary judgment motion, the trial court "seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact." (Jordan v. Allstate Ins. Co. (2007) 148 Cal.App.4th 1062, 1071.) Thus, the function of the court at the summary judgment stage is merely to determine whether such issues of fact exist, not to decide the merits of the issues themselves. (Ibid.) "The court focuses on issue finding; it does not resolve issues of fact." (Ibid.)
We review de novo the trial court's grant of summary judgment, viewing the evidence in the light most favorable to the nonmoving party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; Insalaco I, supra, 49 Cal.App.5th at p. 520.)
Analysis
The Insalacos argue the trial court erroneously granted summary judgment because Padilla failed to meet his burden, and his separate statement of facts includes disputed material facts. For his part, Padilla asserts that he presented "extensive expert analysis and testing which ultimately satisfied [his] burden of showing the [Insalacos'] causes of action had no merit."
The Insalacos' causes of action against Padilla include diversion of surface waters, nuisance and trespass. These claims are rooted in negligence, which is based on the fundamental concept that a person is liable for injuries 7 caused by "his . . . want of ordinary care . . . in the management of his . . . property . . . ." (Civ. Code, § 1714, subd. (a).) The gist of the Insalacos' claims is that Padilla's use and maintenance of his property caused erosion, soil subsidence, and the landslide. The Insalacos argue that although Padilla provided quantitative findings about water runoff and soil properties, Padilla did not establish how the evidence about water runoff proves Padilla's property was outside the slide mass and could not have caused damage to the Insalaco property. The Insalacos contend that this was insufficient to satisfy Padilla's initial burden on summary judgment.
In the trial court, the Insalacos maintained that drainage of water from the Padilla property was not the sole cause of damage to their property.
But we need not decide whether Padilla met his initial burden because even if he did, there is another fundamental problem. As the Insalacos contend, Padilla set forth facts in his separate statement of undisputed material facts regarding the location of the slide mass, which the Insalacos then disputed. Padilla's response is that the location of the slide mass is not material. However, Padilla himself chose to state in his moving papers for summary judgment that it was "undisputed" that his "property is not located within the slide mass." (See Undisputed Material Fact Nos. 4, 14, 24, 34, 44, 54.) As we explained in Insalaco I, supra, 49 Cal.App.5th 506, this decision"' "effectively concedes the materiality of whatever facts are included." '" (Id. at p. 521, citing Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) Thus, if a triable issue is raised as to any of the facts in the separate statement, the motion must be denied. (Insalaco I, at p. 521; Nazir, at p. 252.)
That must be the result here. Padilla conceded the materiality of the slide mass boundary by including it in his separate statement. Padilla relied 8 on his expert Holmer's conclusion that "[t]he slide mass encompasses nearly the entire parcel at 71 Avenida Martinez [Insalaco property] and a significant portion of the adjacent parcel at 63 Avenida Martinez [Du/Wong property]. The head scarp of the slide extends into Avenida Martinez north of the 64 and 72 parcels. The parcel at 64 Avenida Martinez [Padilla property] is not located within the slide mass." Yet, on appeal, Padilla contends "the only 'fact' in dispute which is whether the slide mass extended into Padilla's property . . . is neither material nor a basis to establish breach or causation." Padilla cannot have it both ways.
In any event, we address the substance of Padilla's position and conclude it fails. As he did in the trial court, Padilla contends the Insalacos have failed to identify any act or omission on his part that contributed to the landslide that damaged the Insalaco property. Not so. The Insalacos allege that Padilla's "use and maintenance" of his property constitute a continuing nuisance because an active landslide exists on the Insalaco property and on the Padilla property. The trial court was concerned that without identification of a specific act or omission the Insalacos were seeking to impose something akin to "vicarious strict liability for the sins of [Padilla's] soils." We disagree.
Sprecher v. Adamson Companies (1981) 30 Cal.3d 358 (Sprecher), another landslide case, informs our decision. There, a lawsuit arose out of an active landslide that pushed a downhill landowner's home into a neighbor's home. (Id. at pp. 360-361.) In reversing summary judgment in favor of the uphill landowners, the California Supreme Court rejected the distinction between artificial and natural conditions, and instead held that a landowner's exposure to liability is to be determined by ordinary principles of negligence. (Id. at pp. 361-362.) Sprecher explained that "[w]hatever the 9 rule may once have been, it is now clear that a duty to exercise due care can arise out of possession alone." (Id. at p. 367.) The Court reiterated that" 'the basic policy of this state . . . is that everyone is responsible for any injury caused to another by his want of ordinary care or skill in the maintenance of his property. . . . The proper test to be applied to the liability of the possessor of land . . . is whether in the management of his property he has acted as a reasonable [person] in view of the probability of injury to others . . . .' [Citation.]" (Id. at p. 371.) Sprecher held that triable issues of fact were present regarding the reasonableness of the uphill landowners' failure to correct or control the condition because the evidence did not conclusively establish that no rational inference of negligence could be drawn under the circumstances. (Id. at pp. 372-373.)
The Insalacos presented evidence that the Padilla property is located within a known landslide mass. The reasonableness of Padilla's conduct as an owner of property within a known slide mass is a question for the trier of fact to decide. (Sprecher, supra, 30 Cal.3d at pp. 372-373.) "It must also be emphasized that the liability imposed is for negligence. The question is whether in the management of his property, the possessor of land has acted as a reasonable person under all the circumstances. The likelihood of injury to plaintiff, the probable seriousness of such injury, the burden of reducing or avoiding the risk, the location of the land, and the possessor's degree of control over the risk-creating condition are among the factors to be considered by the trier of fact in evaluating the reasonableness of a defendant's conduct." (Id. at p. 372.)
Here, the trial court implicitly decided these factual questions against the Insalacos when it granted Padilla's summary judgment motion despite the existence of a concededly material fact that the Insalacos disputed. It 10 bears repeating that the court's sole function on a motion for summary judgment is issue finding, not issue determination. (Lederer v. Gursey Schneider LLP, supra, 22 Cal.App.5th at p. 531; J.H. v. Los Angeles Unified School Dist., supra, 183 Cal.App.4th at p. 139.) Although this case is a close one, given the evidence that Avenida Martinez has had active landslide movement dating back to the 1970's, together with evidence establishing that the Insalaco and Padilla properties are located within the slide mass, it cannot be "conclusively establish[ed] that no rational inference of negligence can be drawn under the circumstances of this case." (Sprecher, supra, 30 Cal.3d at p. 373.).
Padilla's reliance on Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 97, 106, for the proposition that a plaintiff must prove the elements of negligence, is inapt as that case involved a defendant's motion for nonsuit following the plaintiff's presentation of evidence at trial.
Where, as here, a material fact is disputed, the only option is to deny the motion for summary judgment. (See Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 8; Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1512.) Accordingly, we conclude the trial court erred in granting summary judgment.
By reason of this holding, we do not address the Insalacos' claim that the trial court should have stricken Padilla's demand for expert fees and costs and instead vacate the cost award in its entirety. (Code Civ. Proc., § 1032, subd. (b); Ducoing Management, Inc. v. Superior Court (2015) 234 Cal.App.4th 306, 314.)
DISPOSITION
The judgment against the Insalacos is vacated. The cost award to Padilla is vacated. The Insalacos shall recover their costs on appeal. 11
WE CONCUR: Richman, Acting P.J., Stewart, J. 12