Opinion
D073915
09-17-2019
WILLIAM PERKS et al., Plaintiffs and Appellants, v. CITY OF SAN DIEGO, Defendant and Respondent.
Schwerdtfeger Law Group, Sean D. Schwerdtfeger and Catherine L. Coughlin for Plaintiffs and Appellants. Mara W. Elliott, City Attorney, George Schaefer, Assistant City Attorney, and Michael J. McGowan, Deputy City Attorney, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2016-00006408-CU-EI-CTL) APPEAL from a judgment of the Superior Court of San Diego County, John Meyer, Judge. Reversed. Schwerdtfeger Law Group, Sean D. Schwerdtfeger and Catherine L. Coughlin for Plaintiffs and Appellants. Mara W. Elliott, City Attorney, George Schaefer, Assistant City Attorney, and Michael J. McGowan, Deputy City Attorney, for Defendant and Respondent.
William and Ronda Perks (Plaintiffs) sued the City of San Diego (City) on a variety of legal theories for erosion and flood damage allegedly caused to their property by a storm drainage system that collects neighborhood surface water from the public street in front of their house and discharges it to their back yard via an underground pipe. The City moved for summary judgment based on evidence showing the City does not own the stretch of pipe that discharges the water into Plaintiffs' back yard, the City adequately maintained the storm drain system, and that flood damage Plaintiffs allegedly sustained during a particular storm was caused by the unprecedented severity of the storm and not deficient maintenance or design of the storm drain system. While the City's motion was pending, Plaintiffs' counsel successfully moved to be relieved as counsel of record. Plaintiffs did not oppose the City's summary judgment motion, which the trial court construed as a concession that there were no disputed material facts. The court granted the City's motion and entered judgment in the City's favor.
On appeal, Plaintiffs contend the trial court erred by failing to continue the summary judgment hearing to allow them time to retain new counsel, and by granting the City's summary judgment motion. The City maintains no continuance was warranted, and the trial court properly granted the City's motion because Plaintiffs did not oppose it.
We conclude the City was not entitled to a summary judgment because the City did not meet its burden of showing it was entitled to judgment as a matter of law on all theories of liability alleged in the pleadings. As we will explain, the fact that the City assertedly does not own the portion of pipe that ultimately discharges surface water from the public storm drain system onto Plaintiffs' property does not immunize the City from liability for erosion damage. (Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783 (Skoumbas).) Accordingly, we will reverse the judgment. We therefore do not address Plaintiffs' contention that the trial court erred by not continuing the summary judgment hearing.
FACTUAL AND PROCEDURAL BACKGROUND
The Complaint
In February 2015, Plaintiffs sued the City to recover for damage allegedly caused to their residential property by a storm drain system. We summarize here the key allegations from their operative second amended complaint (complaint).
Background
Plaintiffs purchased their primary residence on Arcadia Drive in San Diego (the Subject Property) in 2003. "Part of [a] storm drainage system is located on the street in front of the Subject Property and . . . continues underground" either "across the Subject Property" or "the neighboring property." Either way, "the drain's proximity directly affects the Subject Property."
Plaintiffs allege the City's maintenance (or lack thereof) of the storm drain system has damaged the Subject Property in the following ways:
" . . . On December 4, 2014, and for two weeks thereafter, the Subject Property was repeatedly flooded by rain water resulting from a clogged, blocked, broken, malfunctioning, or otherwise inadequate storm drainage system that is maintained by the . . . City . . . .
" . . . Plaintiffs' terracing, retaining walls, refuse disposal area, and tree were destroyed or significantly damaged due to an overflow of water caused by the faulty condition of the storm drainage system.
" . . . Plaintiffs experienced massive erosion through the back portion of the Subject Property, around the foundation of their home, and down the hill below their home, on the land that is required to support the structures at the Subject Property. [¶] . . . [¶]
" . . . Since the initial flood incident in December 2014, there have been other times when serious flooding has occurred at the Subject Property due to the condition of the storm drain system. Subsequent storms have further eroded the property and damages caused thereby have yet to be determined."
Based on these allegations, Plaintiffs asserted four causes of action against the City: inverse condemnation, nuisance, declaratory relief, and dangerous condition of property.
Inverse Condemnation
Plaintiffs based their inverse condemnation claim on two theories. First, that "[o]n or about December 4, 2014, the storm drain system that was built, owned, operated, and maintained by" the City "was blocked and caused a flood that entered the Subject Property and rerouted storm water from public thoroughfares and neighboring properties across the surface of the Subject Property."
Second, the City caused a public taking of a portion of the Subject Property by "erecting, constructing, and maintaining a storm water drainage system on, near, and across [the Subject Property] without the knowledge or permission of Plaintiffs."
Plaintiffs sought to recover "just compensation" for the taking, or alternative relief including a writ of mandate requiring the City "to repair the hillside and the erosion caused by the clogged, blocked, broken, malfunctioning, or inadequate storm drainage system."
Nuisance
Plaintiffs alleged the City "caused a private nuisance by way of an unauthorized and wrongful entry onto the Subject Property," and "a public nuisance that affects, at the same time, an entire community or neighborhood, although the extent of the annoyance or damage inflicted upon the Plaintiffs is unequal and greater than other property owners in the community or neighborhood." (Italics added.) Plaintiffs alleged the nuisance was "repeated or continuing" because the City "failed to clean up or repair the damages resulting from the unauthorized and wrongful entry and water intrusion in the Subject Property."
Declaratory Relief
Plaintiffs sought a judicial declaration "that the existence of the storm drainage system on the Subject Property constitutes a taking of real property by the [City] without just compensation."
Dangerous Condition of Property
Plaintiffs alleged that the existence of the City's "property and storm drain system on, beneath, and adjacent to the [Subject] Property constituted a dangerous condition of public property" because the "City knew, or should have known, that a large influx of water into the storm drain system and the soil at the [Subject] Property, which is potentially unstable, can cause or trigger erosion . . . ."
The Summary Judgment Motion
The City moved for summary judgment or, in the alternative, summary adjudication. The City supported its motion with a separate statement of undisputed material facts (separate statement) based on Plaintiffs' discovery responses and declarations from City employees and a retained expert.
The City's Separate Statement
Based on the supporting evidence cited in the separate statement, the City asserted the following facts were undisputed.
"A catch basin . . . is part of a storm water drainage system. Its purpose is to provide a place for surface water in the roadway to drain to, and transfer it to a storm water pipe or other drainage system." There is a catch basin "adjacent to the Plaintiffs' property, . . . located in the roadway and . . . within the City sidewalk right-of-way." There is another catch basin "located across the street from" the first catch basin. These two catch basins are connected by "a dedicated City storm water pipe structure which runs under Arcadia Drive."
The City refers to the catch basin adjacent to the Subject Property as structure number 24390, the catch basin across the street as structure number 24395, and the underground connecting pipe as structure number 21775.
The catch basin adjacent to the Subject Property is also connected to an additional storm water pipe that the City refers to "for identification purposes only" as "storm water structure number 21771" (Pipe 21771). This pipe "runs under or along" Plaintiffs' property line and "down along the property line or on the back slope" of the Subject Property.
Based on the City's review of relevant records, it determined Pipe 21771 "was not built by the City, but a private developer" in about 1913. Based on its review of "easements, titles, and other documents," the City further determined Pipe 21771 "is not a City facility and the City has no easement or ownership interest in that pipe. Therefore, it is a private storm water pipe and the City has no obligation to maintain or service it. The responsibility to maintain or service that private storm drain would lie with whoever's property it runs under."
With respect to Plaintiffs' allegation that the Subject Property flooded on December 4, 2014, due to inadequate maintenance of the storm drain system, the City introduced evidence regarding the severity of the storm and the City's maintenance of the catch basins. On December 4, San Diego "was hit by an intense storm" that dropped a record-setting 0.82 inches of rain near the Subject Property in a 15-minute period. This amount of rainfall exceeded the City's current design specifications, "based on a 50 year storm standard," which "require a storm drain inlet or catch basin to be able to drain 0.578 inches of surface water in a 15 minute period." This standard exceeds the standard that was in place when the subject storm drain system was built in 1913. The City therefore concluded that "even if the subject storm drain were built according to current specifications, it still would not have been able to handle the 0.82 inches of rain that occurred within a 15 minute period on December 4, 2014."
Regarding maintenance of the storm drain system, the City showed that "a City employee inspected and cleaned" the catch basin adjacent to the Subject Property on "December 10, 2013, in response to a citizen complaint regarding a plugged storm drain." "The area around the drain was also power swept on December 30, 2013." Finally, a City employee inspected the catch basin on February 27, 2014, "and found no issues."
Inverse Condemnation
In its motion, the City argued it was not liable for inverse condemnation because Pipe 21771 "is not a public improvement," the City "reasonably maintained" the catch basin adjacent to the Subject Property, and "the cause of the flooding was due to an inordinate amount of rain beyond the capacity of the system." (Capitalization and bolding omitted.)
In support of its first argument (nonownership of Pipe 21771), the City cited DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329 (DiMartino), in which the plaintiffs sued a city for inverse condemnation arising from an undisclosed, deteriorated storm drain pipe that ran under their property and connected to a public catch basin. (Id. at p. 333.) The DiMartino court held the city could not be found liable without evidence showing the city owned or was involved in the construction or management of the pipe. (Id. at p. 340.)
The City argued that because it did not own, design, or build Pipe 21771, "the question becomes whether the City reasonably maintained" the catch basin adjacent to the Subject Property. The City argued it had, because it cleaned, power swept, and inspected the catch basin in the year preceding the December 2014 storm.
Finally, the City argued that because the December 2014 storm dropped a record-setting amount of rain that exceeded the current design specifications—let alone the lower specifications in effect when the system was built in 1913—the storm was a superseding cause of the flooding at the Subject Property.
Nuisance
As to Plaintiffs' public and private nuisance theories, the City again argued that the record-setting rainfall during the December 2014 storm "was the super[s]eding cause of the flooding at" the Subject Property.
Declaratory Relief
The City argued Plaintiffs were not entitled to a judicial declaration that the " 'existence of the storm drainage system on the Subject Property' " constitutes a taking because Pipe 21771 "is located outside of the boundaries of" the Subject Property, the pipe "is not a City facility," and "the City has no easement or ownership interest" in it.
Dangerous Condition
The City argued it was entitled to summary judgment on Plaintiffs' dangerous condition of property claim because (1) Pipe 21771 "is not a City facility" and, therefore, "there is no 'condition of public property' at issue"; (2) there was no dangerous condition because the cause of the flooding at the Subject Property was the storm, not the storm drain system; and (3) the City had no actual or constructive notice of a dangerous condition because Pipe 21771 is a private pipe that the City is not obligated to maintain, and, in any event, the City's prior maintenance and inspection of the catch basin adjacent to the Subject Property revealed no dangerous condition.
Notice of Nonopposition
About six days after Plaintiffs' opposition to the City's summary judgment motion was due, the City filed a notice advising the trial court that "[t]o date, no opposition has been filed."
Summary Judgment Hearing
Before the hearing on the City's summary judgment motion, the trial court issued a tentative ruling incorporating the reasoning articulated in the City's motion—Pipe 21771 "is not a public improvement"; "the cause of the flooding was due to an inordinate amount of rain beyond the capacity of the system, as opposed to a failure on the part of the system"; and the City "was not negligent in the maintenance of the catch basin" adjacent to the Subject Property because the City cleaned and inspected it. The court noted in the tentative ruling that Plaintiffs had not "opposed the motion, [thereby] conceding that there are no triable issues of material fact."
Mr. Perks argued at the hearing that, although Pipe 21771 apparently is private, the remainder of the storm drain system is public and unfairly singles out his property.
At the end of the brief hearing, the trial court adopted its tentative ruling. The court later entered judgment in the City's favor.
Plaintiffs appeal.
DISCUSSION
I. Summary Judgment Principles
"Summary judgment is appropriate only 'where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.' " (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618 (Regents); see Code Civ. Proc., § 437c, subd. (c); Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 492 (Hutton).)
Further undesignated statutory references are to the Code of Civil Procedure.
"A defendant may move for summary judgment if it is contended that the action has no merit." (Hutton, supra, 213 Cal.App.4th at p. 492, citing § 437c, subd. (a).) "A defendant moving for summary judgment has the initial burden of showing a cause of action is without merit. A defendant meets that burden by showing that one or more elements of the cause of action cannot be established, or that there is a complete defense thereto." (Hutton, at p. 492, citing § 437c, subd. (p)(2).) "A defendant is not entitled to summary judgment unless that moving party negates all theories of liability pleaded by the plaintiff." (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 397 (Juarez).) "If the defendant makes such a showing, the burden shifts to the plaintiff to produce evidence demonstrating the existence of a triable issue of material fact." (Hutton, at p. 492, citing § 437c, subd. (p)(2).)
The moving party must support its summary judgment motion with evidence and a "separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed." (§ 437c, subd. (b)(1); Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 415-416 (Kojababian).)
The party opposing summary judgment must then submit "a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed." (§ 437c, subd. (b)(3); see Cal. Rules of Court, rule 3.1350(e); Kojababian, supra, 174 Cal.App.4th at p. 415.) By statute, the "[f]ailure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion." (§ 437c, subd. (b)(3).) By case law, however, "it would be an abuse of discretion for a trial court to grant a summary judgment based on a failure to file a separate statement when the moving parties have not in their moving papers set forth a prima facie showing for summary judgment—i.e., have not met their 'burden of persuasion to show that there was no triable issue of material fact and that they were entitled to judgment as a matter of law.' " (Kojababian, supra, 174 Cal.App.4th at p. 416.)
"On appeal from a summary judgment, our task is to independently determine whether an issue of material fact exists and whether the moving party is entitled to summary judgment as a matter of law. [Citation.] 'We independently review the parties' papers supporting and opposing the motion, using the same method of analysis as the trial court. Essentially, we assume the role of the trial court and apply the same rules and standards.' [Citation.] We apply the same three-step analysis required of the trial court. First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond. Second, we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in the moving party's favor. When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable issue of material fact. [Citations.] In so doing, we liberally construe the opposing party's evidence, strictly construe the moving party's evidence, and resolve all doubts in favor of the opposing party." (Hutton, supra, 213 Cal.App.4th at pp. 493-494.)
II. Contentions
Plaintiffs contend the trial court improperly granted the City's summary judgment motion because (among other reasons) the City failed to show it was entitled to judgment as a matter of law on all theories of liability alleged in the complaint. (See Juarez, supra, 81 Cal.App.4th at p. 397.) More specifically, Plaintiffs maintain they alleged two theories of liability: (1) long-term erosion damage caused by the discharge of surface water onto the back slope of the Subject Property via Pipe 21771 (erosion theory), and (2) acute flood damage caused during and shortly after the December 2014 storm when obstructed catch basins caused surface water to overflow onto the Subject Property (flood theory). Plaintiffs argue the City did not meet its burden of showing it is entitled to judgment as a matter of law on the erosion theory because pertinent case law holds that the mere fact that a portion of a storm drain system may be privately owned (like Pipe 21771) does not immunize a public entity from liability for erosion damage caused by the remaining publicly owned portions of the storm drain system. (Skoumbas, supra, 165 Cal.App.4th at p. 794.) Plaintiffs reason that the evidence regarding the severity of the December 2014 storm and the City's efforts to clean the catch basins has no bearing on the erosion theory because it is premised on long-term erosion and is not limited to damage caused by a particular storm.
A fair reading of the complaint supports Plaintiffs' assertion that it alleges both the flood and erosion theories as bases for each cause of action. The flood theory is clearly alleged, while the erosion theory is only obliquely alleged. Nevertheless, there is no question the City understood that Plaintiffs asserted both theories as bases for each cause of action—Plaintiffs clearly said so in their interrogatory responses, which the City quoted in its separate statement and lodged with the trial court in connection with the summary judgment motion.
The City did not address in its respondent's brief the merits of Plaintiffs' appellate contentions. Instead, the City argued the trial court properly granted the City's summary judgment motion because Plaintiffs did not oppose it. The City did not support this argument with citation to any authority. Consequently, we asked the parties for supplemental briefing on the following questions: "1. Where no opposition is filed to a motion for summary judgment, is the moving party still required to show the absence of disputed material facts and that it is entitled to judgment as a matter of law? [¶] 2. If so, did respondent City of San Diego (City) satisfy that burden?" (Italics added.) The City responded that "the answer to question number one is no, making the second question a moot point."
The City also argued at length that the trial court acted properly in not continuing the summary judgment hearing. As noted, we need not address this issue.
The City based its conclusion on the following characterization of the Supreme Court's seminal summary judgment case, Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850: "At summary judgment, the moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. . . . 'No more is called for.' " This argument, however, ignores the preceding paragraph in Aguilar, which begins: "First, and generally, from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Id. at p. 850, italics added.) The City's focus on the burden of production ignores its burden of persuasion to show that it is entitled to judgment as a matter of law.
As is evident from our discussion of summary judgment principles in part I, ante, we are unpersuaded by the City's argument. As the moving party, the City bore the burden of persuasion to show that the undisputed material facts entitled it to judgment as a matter of law on all theories alleged in the complaint. (§ 437c, subds. (c), (p)(2); Regents, supra, 4 Cal.5th at p. 618; Juarez, supra, 81 Cal.App.4th at p. 397.) For reasons we will explain, we agree with Plaintiffs that the City failed to meet that burden with respect to Plaintiffs' erosion theory.
III. The City Is Not Entitled to Judgment as a Matter of Law on the Erosion Theory
To support their contention that the City has not met its burden of showing it is entitled to judgment as a matter of law on their erosion theory, Plaintiffs rely heavily on Skoumbas, supra, 165 Cal.App.4th 783. Their reliance is warranted.
The plaintiffs in Skoumbas sued the city for inverse condemnation, nuisance, and trespass due to "substantial erosion" damage to their property. (Skoumbas, supra, 165 Cal.App.4th at pp. 787-788.) It was undisputed that surface water from a neighboring subdivision flowed onto a road, where it was collected in a catch basin that channeled the water into an underground pipe that discharged onto the uphill boundary of the plaintiffs' property. (Id. at pp. 787-788, 793-794.) The city admitted it owned the road, the catch basin, and the first 40 feet of the underground pipe. (Id. at pp. 793-794.) But the city moved for summary judgment on the basis that it did "not own the lower stretches of drainpipe" that ultimately discharged the water onto the plaintiffs' property. (Id. at p. 794.) The trial court granted the city's motion, but the Court of Appeal reversed. (Id. at pp. 790, 797.)
The Skoumbas court held the city's "asserted lack of ownership or involvement in development of the lower portion of the drainage system off [the public road] is not a complete defense to its possible liability to plaintiffs." (Skoumbas, supra, 165 Cal.App.4th at p. 794.) The court explained that a public entity is liable in inverse condemnation for flood control measures " 'if its conduct posed an unreasonable risk of harm to the plaintiffs, and that unreasonable conduct is a substantial cause of the damage to plaintiff's property.' " (Id. at p. 792, quoting Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 367 (Locklin).) " '[T]he reasonableness of the public agency's conduct must be determined on the facts of each individual case, taking into consideration the public benefit and the private damages in each instance.' " (Skoumbas, at p. 796.) Similarly, the Skoumbas court observed that a public entity's tort liability for flood control measures "also turns on the relative reasonableness of the parties' conduct." (Id. at p. 796.)
The Skoumbas court cited the following reasonableness factors: "(1) whether the damage to their property, if reasonably foreseeable, would entitle the plaintiffs to compensation; (2) whether it is likely that the public agency would refrain from diverting the water in light of a remote possibility of unseen and unforeseeable direct damage to the property; (3) whether the plaintiffs suffered direct physical damage to their property as the proximate result of the diversion as deliberately planned and carried out; (4) whether the cost of the damage can be better absorbed, and with less hardship, by the taxpayers rather than the plaintiff owners of the damaged property; and (5) whether if uncompensated the plaintiffs would contribute more than their fair or proper share to the public undertaking of the project." (Skoumbas, supra, 165 Cal.App.4th at pp. 792-793, citing Locklin, supra, 7 Cal.4th at p. 368.)
Applying these principles, the Skoumbas court held that, "[a]s a matter of law, the [c]ity's ownership and control of a portion of the drainage system makes the [c]ity potentially liable for damage substantially caused by the [c]ity's unreasonable diversion of water through the [c]ity-owned portions of the system." (Skoumbas, supra, 165 Cal.App.4th at p. 791.) The court rejected the city's "argu[ment] for some type of whole ownership rule" requiring "that an entire drainage system must be a public improvement in order to find a government agency liable in inverse condemnation for downstream damage caused by diverted surface water." (Id. at p. 796.) Instead, "the relevant question is whether the [c]ity's ownership, operation or control of [a portion of] the improvements . . . were unreasonable or posed an unreasonable risk of harm to plaintiffs, and whether the [c]ity's unreasonable conduct was 'a substantial cause of the damage to plaintiff's property.' " (Id. at p. 794.) Because "the record contain[ed] no evidence relied upon by the [c]ity to show it acted reasonably" in these respects (id. at p. 793, fn. 11), the court concluded the city was not entitled to judgment as a matter of law on any of the plaintiffs' causes of action (id. at p. 796).
In reversing the judgment, the Skoumbas court distinguished DiMartino, supra, 80 Cal.App.4th 329, which the City cited to the trial court here. (Skoumbas, 165 Cal.App.4th at p. 795.) The plaintiffs in DiMartino sued the city in inverse condemnation "for diminution in the value of their home due to the existence beneath it of a deteriorated metal drainpipe" of which "[n]either the public entities nor the plaintiffs . . . were aware . . . until it was discovered 'during design stages of a planned remodel.' " (Skoumbas, at p. 795, quoting DiMartino, at pp. 332, 333.) The trial court awarded the plaintiffs damages for the cost of relocating the pipe (DiMartino, at p. 335), but the Court of Appeal reversed, finding there was no evidence the city owned or controlled the drain pipe (id. at p. 344). To the contrary, the only evidence indicated the "purpose of the pipe appears to have been entirely private: to permit construction of private residences on [plaintiffs' lot and the adjoining lot], which otherwise would have been unbuildable due to waters flowing in a natural watercourse." (Id. at p. 344.)
The Skoumbas court explained it found DiMartino distinguishable based on the exclusively private purpose of the pipe in DiMartino and the differing nature of alleged injuries: "Unlike DiMartino, this case does not involve the failure, replacement and relocation of a secret subterranean drain. It involves potential liability for the diversion of surface water" for the benefit of an entire subdivision. (Skoumbas, supra, 165 Cal.App.4th at pp. 795-796.)
Skoumbas is virtually on all fours with this case. In both, property owners sued a city for erosion damage caused by surface water collected by public catch basins in public roads, and ultimately discharged onto the plaintiffs' property by stretches of private drain pipe. And unlike the pipe in DiMartino, there is no evidence that the "purpose of [Pipe 21771] appears to have been entirely private" and for the exclusive benefit of the Subject Property. (DiMartino, supra, 80 Cal.App.4th at p. 344.) To the contrary, it is reasonable to infer from the record that Pipe 21771 benefits the entire surrounding neighborhood by discharging the surface waters collected by the public catch basins onto Plaintiffs' property. We thus find Skoumbas highly analogous and persuasive, and DiMartino readily distinguishable.
We are perplexed as to why the City cited DiMartino, but not Skoumbas, in its summary judgment motion. Moreover, despite Plaintiffs' heavy reliance on Skoumbas on appeal, the City did not address it in its respondent's brief or supplemental brief. Because neither the City nor Plaintiffs brought Skoumbas to the trial court's attention, the court's summary judgment ruling—although technically erroneous—was understandable.
Under Skoumbas, the private nature of Pipe 21771 does not immunize the City from liability. (Skoumbas, supra, 165 Cal.App.4th at pp. 791, 794.) Rather, the "relevant question" is whether the City acted reasonably in the management and control of the public portions of the storm drain system. (Id. at p. 794.) As in Skoumbas, "the record contains no evidence relied upon by the [c]ity to show it acted reasonably" (id. at p. 793, fn. 11) as it relates to Plaintiffs' erosion theory. The City's evidence regarding the severity of the December 2014 storm and the City's efforts to keep the catch basins cleared of debris relates to Plaintiffs' storm-specific flood theory, not their long-term erosion theory.
Accordingly, with respect to Plaintiffs' erosion theory, because the City did not establish undisputed facts showing it acted reasonably with respect to the City-owned portions of the storm drain system, the City was not entitled to judgment as a matter of law on Plaintiffs' causes of action for inverse condemnation, nuisance, or declaratory relief (which is duplicative of their inverse condemnation cause of action). (See Skoumbas, supra, 165 Cal.App.4th at p. 796.)
Nor has the City shown it is entitled to judgment as a matter of law on Plaintiffs' remaining cause of action for dangerous condition of property premised on the erosion theory. "Government Code section 835 provides that a public entity is liable for injury caused by a dangerous condition of public property if (1) the property was in a dangerous condition at the time of the injury, (2) the dangerous condition proximately caused the injury, (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury that was incurred, and (4) a public employee acting within the scope of employment negligently or wrongfully created the dangerous condition, or the public entity had sufficient notice of the dangerous condition to have protected against it." (Biron v. City of Redding (2014) 225 Cal.App.4th 1264, 1280-1281.)
The City's assertion that Pipe 21771 is privately owned does not negate the theory that the remaining publicly owned portions of the storm drain system constitute a dangerous condition of property. Nor does the City's evidence regarding the severity of the 2014 storm or the City's maintenance measures negate the elements of causation of the erosion, the reasonable foreseeability of the risk of erosion, or the lack of notice regarding the condition. Accordingly, the City has not shown it is entitled to judgment as a matter of law on the dangerous condition of property cause of action premised on the erosion theory.
Because the City failed to meet its burden of showing that the undisputed material facts entitle it to judgment as a matter of law on each of Plaintiffs' causes of action premised on the erosion theory, the City was not entitled to summary judgment.
Although the City moved for summary adjudication in the alternative to summary judgment, the City has not argued that Plaintiffs' erosion theory and flood theory constitute distinct causes of action amenable to being summarily adjudicated. (See Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-1855 ["a party may present a motion for summary adjudication challenging a separate and distinct wrongful act even though combined with other wrongful acts alleged in the same cause of action"], italics added.) --------
DISPOSITION
The judgment is reversed. The parties are to bear their own costs on appeal.
HALLER, J. WE CONCUR: HUFFMAN, Acting P. J. IRION, J.