Judge David S. Cunningham, Case Number: 21STCV38929, Date: 2025-02-05 Tentative Ruling

Judge: David S. Cunningham, Case: 21STCV38929, Date: 2025-02-05 Tentative Ruling

Moving Party: City of Carson (“Carson” or “City” or “Defendant”)

Opposing Party: Monique Alvarez, et al. (collectively “Private Plaintiffs” or “Plaintiffs”)

______________________________________________________________________________

This case arises from a warehouse fire near the Dominguez Channel (“Channel”) in Carson, California. The fire and efforts to put it out allegedly caused hazardous materials to enter the Channel, creating a foul odor that made thousands of people sick.

Here, Carson moves for summary adjudication of Private Plaintiffs’ seventh cause of action for inverse condemnation.

“A motion for summary adjudication asks the court to adjudicate the merits of a particular cause of action, affirmative defense, issue of duty or claim for damages, including a punitive damage request.” (Edmond & Karnow, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group June 2023 Update) ¶ 10:1, emphasis in original.)

A defendant (or cross-defendant) moving for summary [adjudication] must “show” that either:

* one or more elements of the “cause of action … cannot be established”;

This means that where plaintiff has the burden of proof at trial by a preponderance of evidence, defendant “must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not—otherwise, he [defendant] would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” [Citation.]

The import of “more likely than not” in the foregoing quote is that a moving defendant must generally present evidence that, if uncontradicted, “would constitute a preponderance of evidence that an essential element of the plaintiff's case cannot be established … The same is true when a moving defendant seeks to secure dismissal of the complaint based on an affirmative defense.” [Ciation.]

. . . Once defendants meet this burden, the burden shifts to plaintiff to prove the existence of a triable issue of fact regarding that element of its cause of action or that defense. If plaintiff is unable to do so, defendants are entitled to judgment as a matter of law. [Citations.]

. . . If defendants fail to meet their burden, their motion must be denied; plaintiff need not make any showing at all. [Citation.]

“The California Supreme Court recently examined the principles underlying an inverse condemnation claim in [City of Oroville v. Superior Court (2019) 7 Cal.5^th 1091 (‘Oroville’)].” (Simple Avo Paradise Ranch, LLC v. Southern California Edison Co. (2024) 102 Cal.App.5^th 281, 299 (“Simple Avo”).) “‘Under article I, section 19 of the California Constitution . . . a public entity must pay the owner just compensation when it takes or damages private property for public use.’ [Citations.]” (Ibid.) Section 19 gives rise to “‘two kinds of actions: a conventional eminent domain proceeding, instituted by a public entity to acquire private property for public use; and an inverse condemnation action, initiated by a private property owner seeking compensation for a taking or damage to his or her property.’ [Citation.]” (Ibid.)

“The high court identified two competing concerns when setting the contours of inverse condemnation claims: ‘One is to pool the burden to the individual property owner and distribute throughout the community the losses resulting from the public improvement. [Citations.]’” (Ibid.) “Another is to mitigate concerns that ‘compensation allowed too liberally will seriously impede, if not stop, beneficial public improvements because of the greatly increased cost.’ [Citation.]” (Ibid.)

[a]n inverse condemnation action, in contrast to a condemnation action initiated by the condemning public agency, is an eminent domain action initiated by one whose property was taken or damaged for public use. The principles of eminent domain law apply to inverse condemnation proceedings. [Citation.] The fundamental policy underlying the concept of inverse condemnation is that the costs of a public improvement benefiting the community should be spread among those benefited rather than allocated to a single member of the community. [Citation.]

A successful inverse condemnation claimant must prove that a public entity has taken or damaged its property for a public use. [Citation.] Article I, section 19 of the California Constitution has been interpreted by our Supreme Court to mean that “any actual physical injury to real property proximately caused by [a public] improvement as deliberately designed and constructed is compensable . . . whether foreseeable or not.” [Citation.] Damage caused by the public improvement as deliberately conceived, altered or maintained may be recovered under inverse condemnation [citation] and the presence or absence of fault by the public entity ordinarily is irrelevant. [Citation.]

“To state a cause of action for inverse condemnation, the property owner must show there was an invasion or appropriation (a ‘taking’ or ‘damaging’) of some valuable property right which the property owner possesses by a public entity and the invasion or appropriation directly or specially affected the property owner to his injury.” [Citation.] The damage must result from “‘“‘an exercise of governmental power while seeking to promote “the general interest in its relation to any legitimate object of the government.”’”’” [Citation.] In other words, in inverse condemnation, the government is obligated to pay for property taken or damaged for “‘public use’” or damaged in the construction of “public improvements.” [Citation.] A “‘public use’” is “‘“a use which concerns the whole community as distinguished from a particular individual or a particular number of individuals; public usefulness, utility or advantage; or what is productive of general benefit; a use by or for the government, the general public or some portion of it.”’” [Citation.]

(City of Los Angeles v. Superior Court (2011) 194 Cal.App.4^th 210, 221; see also (Beaty v. Imperial Irrigation Dist. (1986) 186 Cal.App.3d 897, 903.)

“A party who does nothing more than establish property damage as the result of negligent conduct of public employees or a public entity has not established a right to recover under a claim of inverse condemnation.” (Ibid.; see also see also Customer Co. v. City of Sacramento (1995) 10 Cal. 4th 368, 382 [stating that “[t]he destruction or damaging of property is sufficiently connected with ‘public use’ as required by the Constitution, if the injury is a result of dangers inherent in the construction of the public improvement as distinguished from dangers arising from the negligent operation of the improvement”].)

Private Plaintiffs claim Carson’s motion and separate statement fail to comply with the Rules of Court because the “facts” and “arguments” sections of the motion discuss facts that do not appear in the separate statement. (See Opposition, pp. 7-8.)

Carson contends the separate statement is compliant in that it contains the facts relevant to summary adjudication. Carson asserts that non-material facts do not need to be listed. (See Reply, pp. 4-5.)

The Court agrees with Carson. A separate statement “should include ‘only material facts and not any facts that are not pertinent to the disposition of the motion.’” (Edmon & Karnow, supra, at ¶ 10:94 [advising that “paragraphs in separate statements should be limited to facts that address elements of [a] cause of action or [an] affirmative defense”], emphasis in original.) Carson’s separate statement complies with this requirement.

“A public entity is a proper defendant in an action for inverse condemnation if the entity substantially participated in the planning, approval, construction or operation of a public project or improvement that proximately caused injury to private property. [Citation.]” (Paterno v. State of California (2003) 113 Cal.App.4^th 998, 1029, emphasis added.)

Carson contends summary adjudication should be granted because Carson never “owned, controlled, or maintained” the Channel. (Notice of Motion, p. 2; see also Motion, pp. 14-16; Reply, pp. 5-7 [arguing that complying with an MS4 permit is different than maintaining or controlling the Channel].)

* Carson’s participation in the Channel was substantial. (See id. at pp. 8-12.)

The Court agrees with Private Plaintiffs’ first argument. It is undisputed that Carson did not build the Channel. (See Private Plaintiffs’ Response Separate Statement (“RSS”), Undisputed Material Facts (“UMFs”) 3-6.) As to maintenance and control, Carson cites paragraphs 9 and 69 of the operative complaint, newspaper articles, and a November 2021 email from John Raymond, Carson’s assistant city manager. (See Carson’s Separate Statement (“SS”), UMFs 7, 10-11.) Paragraphs 9 and 69 are allegations, not evidence, and they do not mention Carson, let alone discuss whether Carson participated in maintenance and control of the Channel during the relevant time period. (See Carson’s Compendium of Exhibits (“CE”), Ex. A, ¶¶ 9, 69.) Indeed, an unverified complaint’s allegation that the Los Angeles County Flood Control District “owns, operates, maintains, and exercises control over the Channel” does not suffice to disprove Carson’s purported simultaneous maintenance and/or control. (Id. at Ex. A, ¶ 69; cf. id. at Ex. A, ¶ 46 [alleging that “Carson is responsible for maintaining, overseeing, monitoring, detecting, and/or examining various catch basins within its jurisdiction which may flow into the Channel”].) The newspaper articles are inadmissible (authentication, foundation, hearsay) and pertain to the Channel’s construction. (See id. at Ex. C.) The Raymond email is also inadmissible (same), and the quoted portion simply states that Carson would need to acquire information from the County of Los Angeles to respond to the Regional Water Quality Control Board’s (“Water Board”) order concerning steps taken to remedy the odor incident. (See id. at Ex. N.) None of these negates the substantial-participation element.

Since Carson fails to shift the burden, the Court does not need to analyze whether Private Plaintiffs raise a triable issue.

Notably, though, Carson’s own evidence indicates that Carson had “implemented monitoring programs” and was a member of the “Dominguez Channel Watershed Management Area Group’s Coordinated Integrated Monitoring Program[.]” (Carson’s SS, UMF 9; see also Opposition, pp. 8-10; Paterno, supra, 113 Cal.App.4^th at 1029 [“When a public entity accepts responsibility for an improvement, it becomes that entity’s public improvement regardless of who built it.”]; Arreola v. County of Monterey (2002) 99 Cal.App.4^th 722, 742 [finding that inadequate project maintenance can be a basis for inverse condemnation if “the [public] entity[] deliberate[ly] . . . undertake[s] the particular plan or manner of maintenance”]; Oroville, supra, 7 Cal.5^th at 1107 [noting that, if an “entity makes a policy choice to benefit from the cost savings from declining to pursue a reasonable maintenance program[,]” “inverse condemnation principles command ‘the corollary obligation to pay for the damages caused when the risks attending these cost-saving measures materialize’”].)

Inverse condemnation requires substantial causation, which means “the causal nexus between the risks inherent in the public improvement and the harm in question was sufficiently robust to create a pronounced likelihood of damage.” (Oroville, supra, 7 Cal.5^th at 1104.) But the public work need only have been “one of several concurrent causes[.]” (Ibid.)

Private Plaintiffs allege that Carson “maintain[ed], overs[aw], monitor[ed], detect[ed], and/or examin[ed] various catch basins within its jurisdiction” near the location of the fire, especially basins 1702292, 1702293, and 1702294. (Carson’s CE, Ex. A, ¶ 46; see also Carson’s SS, UMF 28.) They claim the hazardous materials flowed into the Channel through those basins.

Carson asserts that basins 1702292, 1702293, and 1702294 could not have substantially caused Private Plaintiffs’ injuries because they were more than two miles away “from the outfall point in the MS-4 system that drains into the Dominguez Channel.” (Carson’s SS, UMF 32.) Carson contends the discharges likely came from numerous other basins and drains controlled by other entities that were closer to the outfall point and warehouse property. (See Motion, pp. 16-19; see also Carson’s SS, UMFs 18-32.)

The Court finds that Carson fails to shift the burden. Carson focuses on the distance of basins 1702292, 1702293, and 1702294 from the outfall point, relying on a Carson map and water-flow diagrams to show the distance (approximately 2.2 miles, according to Carson). (See Carson’s SS, UMFs 30-31; see also Carson’s CE, Exs. Q, R.) The documents do not seem self-explanatory. The Court does not see the warehouse property on the map or basins 1702292, 1702293, and 1702294 on the diagrams. Regardless, without more, distance and the presence of other basins and drains are inadequate to show that material discharges did not also go through basins 1702292, 1702293, and 1702294. The Court believes this type of issue necessitates expert evidence. The declaration of Carson’s stormwater engineer fails to show that basins 1702292, 1702293, and 1702294 were not a substantial cause and is insufficient to meet Carson’s burden. (See Jen Decl., ¶¶ 7-8.)

Oroville and Paterno do not change the result. At this point, Oroville and Paterno are distinguishable given Carson’s failure to shift the burden.

Private Plaintiffs assert that their theory of liability against Carson is about more than basins 1702292, 1702293, and 1702294. They argue that Carson was responsible for preventing runoff to basins and drains within its jurisdiction, no matter whether Carson owned and operated the basins and drains. They claim Carson knew about the dangers at the warehouse property and the threat of chemical discharges into basins and drains at and close to the site that could end up in the Channel yet did not take reasonable steps to alleviate the threat. Specifically, Private Plaintiffs contend, prior to the fire, Carson inspected the warehouse and ordered the private owners/operators of the warehouse to take corrective actions but did not ensure that the corrections occurred. (See Opposition, pp. 12-14; see also Private Plaintiffs’ SS, UMFs 31-39.)

As a matter of guidance, the Court tends to disagree. Private Plaintiffs’ theory appears to be a disguised, improper negligence theory. (See Reply, pp. 7-8.) They do not cite a case in which a city was held liable for inverse condemnation for failing to enforce a correction order against a private actor. The cases they do cite appear distinguishable. (See Opposition, pp. 13-14 [citing Oroville, supra, 7 Cal.5^th 1091 [city not liable for sewage damage to dental office where “the dentists failed to install a legally-required backwater valve that would have prevented sewage from entering their building in the event of a sewer main backup”], Simple Avo, supra, 102 Cal.App.5^th 281 [avocado farm stated inverse-condemnation claim against private company operating as a public utility by alleging that the utility failed to replace and maintain its own old power lines and electrical infrastructure], and Siskiyou County v. Pacificorp (E.D. Cal. Feb. 6, 2024, No. 2:22-cv-1582 DAD DB) 2024 WL 448799 [county stated inverse-condemnation claim against private company operating as a public utility, alleging that the utility failed to follow its own vegetation, de-energization, and tree-trimming mitigation policies].)

Property is “taken or damaged” . . . when: (1) the property has been physically invaded in a tangible manner; (2) no physical invasion has occurred, but the property has been physically damaged; or (3) an intangible intrusion onto the property has occurred which has caused no damage to the property but places a burden on the property that is direct, substantial, and peculiar to the property itself.

(Today’s IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5^th 1137, 1165-1166 (“Today’s IV”), emphasis in original.)

Private Plaintiffs claim they suffered direct, substantial, and peculiar injuries. (See Opposition, pp. 15-18; see also Carson’s CE, Ex. A, ¶ 346.)

Carson contends “[t]here is nothing peculiar or unique about odors common to an entire neighborhood that were allegedly smelled by tens of thousands people throughout multiple neighborhoods in Carson and surrounding areas.” (Motion, p. 19.) Carson asserts that the intrusion was insubstantial because it only lasted 10 weeks. (See ibid.; see also Reply, pp. 11-12.)

The first question is whether Carson satisfies the initial burden. The answer is no. Carson devotes four UMFs to this issue. (See Carson’s SS, UMFs 33-36.) The first three depend on allegations. (See id. at UMFs 33-35.) Again, allegations in an unverified complaint are not evidence. The fourth UMF cites a November 19, 2021 updated community notice from the Los Angeles County Department of Public Health. (See id. at UMF 36.) The highlighted sentence states: “If you live in the areas of Carson, West Carson, or the surrounding vicinity, County Public Works continues to offer a reimbursement program.” (Ibid., emphasis in original; see also Carson’s CE, Ex. BB.) The document is inadmissible (authentication, foundation, hearsay), and the sentence regards reimbursement as opposed to injuries and harm.[2] Consequently, Carson’s burden is unsatisfied.

This issue was first addressed at the demurrer stage. The Court advised Private Plaintiffs to “take a second look at Today’s IV” before amending because it seems contrary to Private Plaintiffs’ position:

Yes, [Today’s IV] generally states that “[i]ntangible intrusions” – “such as the intrusion into the plaintiffs’ home of [noxious] gases and/or strong, offensive odors emanating from an adjacent, upwind sewage treatment facility” – “have been recognized as sufficient to constitute a taking or damaging of property[.]” (Today’s IV, supra, 83 Cal.App.5^th at 1166.) On the facts, though, it appears distinguishable. A hotel owner alleged that construction of an underground subway raised noise and dust intrusions and interfered with the hotel’s operation. The trial court sustained the transit authority’s demurrer, and the Court of Appeal affirmed because all other “stakeholders” on the streets where the construction took place experienced the same intrusions. (Today’s IV, supra, 83 Cal.App.5^th at 1172.) Bottom line, the intrusions were not “unique, special, or peculiar” (ibid.), which seems to be the situation here given that [Private] Plaintiffs claim over 20,000 residents in Carson and nearby cities and neighborhoods suffered the same exposures. (See id. at 1173 [noting that plaintiffs “must allege they suffered unique, special, or peculiar damages, i.e., ‘not such as is common to all property in the neighborhood’ ”].) [Private] Plaintiffs’ amended allegations need to confront this problem.

The “noxious gases” case that Today IV discusses is Varjabedian v. City of Madera (1977) 20 Cal.3d 285. (See Today’s IV, supra, 83 Cal.App.5^th at 1166.) Private Plaintiffs try to analogize Varjabedian in their opposition brief. (See Opposition, p. 15.)

The plaintiffs in Varjabedian owned a vineyard adjacent to a sewage-treatment plant. After approximately a year of smelling “septic smells” from the plant, they sued for inverse condemnation. (Varjabedian, supra, 20 Cal.3d at 289.) The trial judge granted judgment on the pleadings because he thought “recovery . . . required ‘physical damage to the property.’” (Id. at 290.)

On appeal, the Supreme Court “note[d] that physical damage . . . is not invariably a prerequisite to compensation” and held that the “[p]laintiffs should have been given the opportunity through amendment of their pleadings . . . to demonstrate that the burden on their farm was sufficiently direct, substantial, and peculiar[.]” (Id. at 296, 299.) The Supreme Court found leave to amend appropriate because the “plaintiffs allege[d] their farm was directly in the path of the odors as they were blown from defendant's facility by the prevailing winds.” (Id. at 299.)

Varjabedian is distinguishable. The motion was a motion for judgment on the pleadings. The plaintiffs were a single family who lived 600 feet from the plant. Nothing in the decision suggests that city-wide harm from a city-wide odor incident could qualify as direct, substantial, and peculiar.

Private Plaintiffs further cite Richards v. Washington Terminal Co. (1914) 233 U.S. 546. (See Opposition, pp. 15-16.) Varjabedian addresses Richards. (See Varjabedian, supra, 20 Cal.3d at 297-298.)

In Richards, the plaintiff alleged that gas and smoke from a nearby railroad harmed his property. Trains emitted the gas and smoke in a tunnel. A fanning system forced the gas and smoke onto the plaintiff’s property, even his house and furniture, through a portal located near his property. The United States Supreme Court held that the intrusion was “direct and peculiar and substantial” and warranted compensation. (Richards, supra, 233 U.S. at 557.)

Like Varjabedian, Richards involved one plaintiff and one property. It is distinguishable.

The final case is Aaron v. City of Los Angeles (1974) 40 Cal.App.3d 471. Private Plaintiffs claim Aaron is analogous because it involved multiple individual plaintiffs and 520 parcels of property. (See Opposition, p. 17.) The plaintiffs’ properties neighbored the Los Angeles International Airport. They brought an inverse-condemnation action against the City of Los Angeles, claiming their properties had been “damaged and reduced in market value by the noise from jet aircraft taking off and landing at the airport.” (Aaron, supra, 40 Cal.App.3d at 475.) The trial court granted judgment in favor of the plaintiffs, and the Second District Court of Appeal affirmed, finding that “the construction and operation of the airport . . . cause[d] special and peculiar damage to [the] plaintiffs which [was] not shared in common by all persons who live[d] along the airways.” (Id. at 483; see also id. at 493.)

Carson contends Aaron should be ignored because it is inconsistent with newer decisions. (See Reply, p. 11.)

The Court leans toward Private Plaintiffs’ side. Carson is correct; cases such as Harding v. State of California ex rel. Department of Transportation (1984) 159 Cal.App.3d 359 and Friends of H Street v. City of Sacramento (1993) 20 Cal.App.4^th 152 are newer than Aaron, and they do generally state that the damages need to be “unique, special or peculiar damages, that is, ‘not such as is common to all property in the neighborhood. . . .’” (Friends of H Street, supra, 20 Cal.App.4^th at 167 [quoting Harding].) However, Aaron is a Second District decision; it remains published; it has minimal negative history; and it has been cited – without criticism – by the California Supreme Court. (See San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4^th 893, 941.) On balance, Aaron appears to hold that neighborhood-wide or city-wide intrusions can cause direct, substantial, and peculiar damages in multi-plaintiff, mass-exposure actions.[3]

Carson argues that the “‘intrusion’ into private property” constituted “a permitted discharge under the federal Clean Water Act[.]” (Notice of Motion, p. 2; see also Motion, pp. 20-23.)

The issue appears moot. Carson does not address it in the reply brief and seems to drop it by silence. (See Reply, pp. 3-12.)

Carson’s argument is premised on the notion that the MS4 permit “allow[ed] for discharges of non-stormwater generated by emergency firefighting operations.” (Motion, p. 20.) Carson claims the inverse-condemnation cause of action is preempted because the Water Board issued the permit “pursuant to the federal Clean Water Act” (ibid., emphasis deleted), and Carson complied with the permit. (See id. at pp. 22-23; cf. Opposition, pp. 18-20.)

The Court disagrees. None of Carson’s cases holds that the Clean Water Act preempts claims for inverse condemnation. (See Natural Resources Defense Council, Inc. v. County of Los Angeles (9^th Cir. 2013) 725 F.3d 1194 [no inverse-condemnation claim]; see also Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc. (1987) 484 U.S. 40 [same]; Coastal Environmental Rights Foundation v. Naples Restaurant Group, LLC (9^th Cir. 2024) 115 F.4^th 1217 [same]; Engine Manufacturers Assn. v. South Coast Air Quality Management Dist. (2004) 541 U.S. 246 [same; decision analyzes Clean Air Act]; Oroville, supra, 7 Cal.5^th 1091 [no preemption issue; no analysis of Clean Water Act].)

[1] Oroville clarifies that substantial causation is required instead of proximate causation. (See Oroville, supra, 7 Cal.5^th at 1104.)

[2] Carson’s attorney declares that most of the exhibits attached to Carson’s CE were authenticated at previous depositions. (See Dupont Decl., ¶ 2.) The statement does not render the exhibits authenticated for this hearing/proceeding. Moreover, exhibit BB was not one of those exhibits. (See ibid.)

[3] The instant case is more a neighborhood-wide case than a city-wide case. The population of Carson far exceeds the number of Private Plaintiffs.