Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises out of a landslide that caused damage to the home of Plaintiffs Jonathan Raiman and Niloufa Raiman.  The landslide was caused by a break in the water service line located at the uphill property of Defendants and Cross-Complainants Nazilla Levy as Trustee of the N.Y. Levy Grantor Trust, the NS Yamin Trust and the S. Yamin Grantor Trust (collectively “Levy”).  The broken water line caused a slope failure with water and debris flowing downhill into the Plaintiffs’ backyard.   

Plaintiffs sued the City of Beverly Hills (“the City”) and the uphill property owners on the theory that one or both are responsible for the water line break and resulting slope failure.  Plaintiffs filed their complaint on January 14, 2022 and a First Amended Complaint on May 18, 2022.  The operative complaint alleges claims for inverse condemnation, dangerous condition of public property, nuisance, negligence and trespass. 

The uphill property owners then cross-complained against the City alleging that the City’s actions and/or inactions caused the water service line to fail.  The operative cross-complaint was filed on August 8, 2022 and alleges claims for equitable indemnity, contribution, declaratory relief, nuisance, negligence, trespass and inverse condemnation.       

The relevant facts are as follows:  Water is provided by the City to property owners.  The water flows through a City main water line that ultimately flows into a City meter.  The City maintains that while the main water line and the meter are owned by the City, the property owner owns and is responsible for any portion of the water system from the water meter to the property.  (Undisputed Material Facts (“UMF”) No. 9.)  Plaintiffs and Levy contend there is no foundation for this fact as during his deposition, the City’s civil engineer (Robert Welch) could not identify the basis for his statement that water pipes exiting water meters are private property and not city property.  (Additional Material Facts (“AMF”) No. 21.)     

On February 27, 2021, there was a slope failure or landslide involving the upslope property located at 640 Clinton Place.  (UMF No. 1.)  The landslide was caused by a broken water pipe that was from the meter at 640 Clinton Place.  (UMF No. 2.)  The landslide came to a final rest at or about the downslope property at 510 Evelyn Place.  (UMF No. 3.)           

There is a disputed issue as to the cause of the broken pipe.  The City contends the pipe broke due to corrosion.  (UMF No. 12.)   Plaintiffs and Levy argue there is no foundation for this fact as Welch testified he has never seen the pipe break or a photograph of the pipe break, and his understanding of the cause of the pipe break was based on speculation or an assumption.  (Welch Dep. 73:2-74:14, 75:25-78:1.)  Welch further testified that he doesn’t know one way or the other if land movement caused the pipe to break.  (Welch Dep. 83:18-84:4.)  The City’s other civil engineer, Daren Grilley, also testified he has never seen the break in the pipe in person or in a photograph and it would be speculation for him to say what caused the leak in this case.  (AMF No. 19.)   

Plaintiffs and Levy argue the cause of the pipe break was due to earth movement of the unpaved right of way, which is City property.  (AMF Nos. 1, 11, 24, 25.)  The curb and gutter at the end of Clinton Place had moved laterally and downward since it was installed, as evidenced by gaps in the curb and gutter relative to adjoining curb and gutter structures.  (AMF No. 11.)    This movement caused the concrete water meter enclosure to settle onto the meter itself, applying undue pressure to the meter and associated piping.  (AMF Nos. 9, 24.)  The City had no policy or procedure to regularly inspect and maintain City Property consisting of curb/gutter, water meter, meter enclosure, and pipes.  (AMF No. 10.)   

In 2013, Clinton Place was resurfaced.  Resurfacing only involves the removal and reapplication of asphalt street surface, so the existing curb and gutter near 640 Clinton Place remained in place and were not altered during the resurfacing project.  (UMF No. 13.)  Google Maps images of the curb and gutter near 640 Clinton Place from 2011, 2014-2015 and 2018 show that the curb and gutter appear to be unchanged since at least May of 2011.  (UMF No. 15.)   

In 2016, the 600 block of Clinton Place was assessed as part of the City’s Pavement Management Program.  Clinton Place was assigned a condition rating of “Excellent” and no condition necessitating attention or repair was noted during the 2016 assessment.  (UMF No. 14.)  The City’s Pavement Management Program, however, assesses only paving, not curbs and gutters.  (Grilley Dep. 50:13-51:8.) 

On May 11, 2021, Daren Grilley, a City engineer, personally visited Clinton Place and the curb near 640 Clinton Place.  During his inspection of the curb and gutter, he did not observe any recent cracking or movement.  He also did not observe any movement of the street.  (UMF No. 16.)  At his deposition, however, Grilley testified there was an “offset” of the curb.  (Grilley Dep. 53:17-54:6.) 

After conducting a thorough search, no records of any curb and/or gutter work, any plans, drawings, work orders, or complaints and/or requests for inspection or repair of the street and/or curb and gutter at the end of the 600 block of Clinton Place were located by City staff.  (UMF No. 17.) 

This hearing is on the City’s motion for summary judgment or in the alternative for summary adjudication.  The City seeks summary adjudication of: (1) Plaintiffs’ claim for dangerous condition of public property because there is no dangerous condition of public property, the alleged dangerous condition did not cause Plaintiffs’ damages, and the City did not have notice of any alleged dangerous condition; (2) Plaintiffs and Cross-Complainants’ claims for inverse condemnation and nuisance because no action or inaction attributable to the City caused the private water line failure that was the cause of the landslide, and (3) Plaintiffs’ and Cross-Complainants’ claims for negligence and trespass because the Tort Claims Act abolished all common law or judicially declared forms of liability for public entities.   

LEGAL STANDARD 

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial.  (Aguilar v. Atlantic Ritchfield Co. (2001) 25 Cal.4th 826, 843.)  Code Civ. Proc. §437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Minor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)  “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”  (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67).   

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element or to establish a defense.  (Code Civ. Proc. §437c(p)(2); Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.)  Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)  

A moving party may prevail by establishing “the absence of evidence to support the [responding party’s] case.”  (Leslie G. v. Perry & Assoc. (1996) 43 Cal.App.4th 472, 482.)  The defendant must show the plaintiff does not possess needed evidence and also that the plaintiff cannot reasonably obtain the evidence.  (Aguilar v. Atlantic Ritchfield (2001) 25 Cal.4th 826, 854.) 

A moving defendant may rely upon factually devoid discovery responses to shift the burden of proof.  (Union Bank v. Superior Court (1995) 31 Cal.App. 4th 573, 581, 590.)  Thus, in Union Bank, the Court found that the defendant had met its burden of proof for summary judgment, by relying upon plaintiff’s discovery responses, which contained no facts supporting the fraud causes of action at issue in that case.  (Id. at 581, 592-593.)   

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.  To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)  The responding party may not simply rely on mere allegations or denials of the pleadings but must set forth specific facts showing that a triable issue of material fact exists with respect to the claim at issue.  (Aguilar, 25 Cal.4th at 844.) 

EVIDENTIARY OBJECTIONS 

 The Court sustains Plaintiffs’ Objection Nos. 1, 2, 3 and 4 to the Declaration of Robert Welch, sustains Levy’s Objection Nos. 1, 2, 3, 4 to the Declaration of Robert Welch and sustains Levy’s Objection Nos. 1, 2, 3 to the Declaration of Darren Grilley.   The Court also sustains Plaintiffs’ objection to Exhibit K.  

DISCUSSION 

Dangerous Condition of Public Property 

The City argues that Plaintiffs’ claim for dangerous condition of public property fails because no dangerous condition exists as a matter of law and even if it did, the City had no notice of the condition.  The Court disagrees. 

The City is a public entity, and tort liability for public entities is based on statute.  (Guerrero v. South Bay Union High School Dist. (2003) 114 Cal.App.4th 264, 273.)  Here, Plaintiffs claim liability under Government Code §835.   

Section 835 provides that a public entity is liable for “injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of injury, that the injury was proximately caused by a dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and either: (a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) the public entity had actual or constructive notice of the dangerous condition under Section 835.2 and sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”   

In other words, to prove that the City is liable, Plaintiffs must establish all of the following: (1) the public property belongs to the City, (2) the public property was in a dangerous condition at the time of the injury, (3) the public property proximately caused Plaintiffs’ injuries; (4) the public property created a foreseeable risk of the injuries incurred, and (5) either (a) a City employee’s wrongful act or omission created the dangerous condition or (b) the City had sufficient notice of the condition and its dangerous character to have taken measures to protect against the dangerous condition. 

Here, the City argues it does not own or control the private water line that broke.  But its sole evidence for this fact is the declaration of Robert Levy who testified at deposition that he could not identify the source of this “fact”.  (Welch Depo. at 23:16-24:14.)   

The City also argues the street above the water line was not a dangerous condition of public property.  Gov. Code §830(a) defines “dangerous condition” as a “condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such a property or adjacent property is used with due care in a manner which it is reasonably foreseeable that it will be used.”  The existence of a dangerous condition is ordinarily a question of fact but can be decided as a matter of law if reasonable minds can come to only one conclusion.  (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347.) 

Here, there is a disputed issue as to whether the movement of land in the unpaved right of way was a dangerous condition of public property.  The curb and gutter at the end of Clinton Place had moved laterally and downward since it was installed, as evidenced by gaps in the curb and gutter relative to adjoining curb and gutter structures.  (AMF No. 11.)  There is a triable issue as to whether this movement caused the concrete water meter enclosure to settle onto the meter itself, applying undue pressure to the meter and associated piping, resulting in the pipe break.  (AMF Nos. 9, 24.)       

The City next argues it had no actual or constructive notice of the dangerous condition.  A public entity is deemed to have actual notice if two conditions are met: “it had actual knowledge of the existence of the condition and should have known of its dangerous character.”  (Gov. Code §835.2(a).)  As to constructive notice, it requires a plaintiff to establish a dangerous condition existed for such a period of time and was of such an obvious nature that the public entity in the exercise of due care, should have discovered the condition and its dangerous character.  (Gov. Code §825.2(b).)  On the issue of due care, the Court looks to (1) whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate and (2) whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.  (Id.)       

Here, there is a triable issue whether the City had a reasonably adequate inspection system.  (ADMF No. 10.)  There is evidence the City has no policy or procedure to regularly inspect and maintain City Property consisting of curb/gutter, water meter and enclosure, and pipes.  (AMF No. 10.)  Also, on September 2, 2016, a City employee replaced a gasket to address a leak at Levy’s water meter.  (AMF No. 12).  At that time, the displaced curb, eroded unpaved right of way and displaced water meter enclosure box were evident.  (ADMF No. 5, 8, 9.)  Accordingly, there is at least a triable issue whether the City was on constructive notice of the land movement that was arguably a cause of the pipe break.        

In sum, there are triable issues of fact relating to Plaintiffs’ claim for dangerous condition of a public property.   

Inverse Condemnation 

The City argues that Plaintiffs’ and Cross-Complainants’ claim for inverse condemnation fails because the damage did not result from a public improvement.  The Court agrees. 

Article I § 19 of the California Constitution requires that just compensation be paid when a private property is taken or damaged for a public use.  An essential element of the claim is that the property was taken for public use or damaged in connection with a public work of improvement.  (Customer Co. v. City of Sacramento (1995) 10 Cal.4th 368, 377.) A public improvement is a project or use that involves “(1) deliberate action by the state (2) taken in furtherance of public purposes.”  (Mercury Cas. Co. v. City of Pasadena (2017) 14 Cal.App.5th 917, 928.)  Whether something is a public improvement is a question of law.  (Id. at 926.) 

Here, there was no public improvement.  Even under Plaintiffs’ and Levy’s version of events, the slope failure was caused by a land movement in the public right of way belonging to the City.  The land movement is not a public improvement.    

Nuisance 

The City argues that Plaintiffs’ and Cross-Complainants’ claim for private nuisance fails because the City did not interfere with their use and enjoyment of their property.  Rather, the interference came from a broken, corroded water line belonging to Levy.  The Court disagrees. 

To establish an action for private nuisance, (1) “the plaintiff must prove an interference with his use and enjoyment of his property,” (2) “the invasion of the plaintiff’s interest in the use and enjoyment of the land must be substantial, that is, that it causes the plaintiff to suffer substantial actual damage”, (3) “the interference with the protected interest must not only be substantial, but it must also be unreasonable, i.e., it must be of such a nature, duration or amount to constitute unreasonable interference with the use and enjoyment of the land.”  (Mendez v. Rancho Valencia Restor Partners, LLC (2016) 3 Cal.App.5th 248, 262-263.)  

Here, there is a triable issue whether the nuisance Plaintiffs and Cross-Complainants complain of was caused by the failure of a private water line or land movement in the public right of way belonging to the City.  The curb and gutter at the end of Clinton Place had moved laterally and downward since it was installed, as evidenced by gaps in the curb and gutter relative to adjoining curb and gutter structures.  (AMF No. 11.)  There is a triable issue as to whether this movement caused the concrete water meter enclosure to settle onto the meter itself, applying undue pressure to the meter and associated piping, resulting in the pipe break.  (AMF Nos. 9, 24.)       

Negligence 

The City argues that Plaintiffs and Cross-Complainants’ claim for negligence pursuant to Gov. Code §815.2 fails because public entity liability for property defects is not governed by § 815.2.  The Court agrees. 

Section 815.2 “imposes upon public entities vicarious liability for the tortious acts or omissions of their employees and makes it clear that in the absence of statute a public entity cannot be held liable for an employee’s act or omissions where the employee himself or herself would be immune.”  (Berrera v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1461.)  

It has been repeatedly held that “public entity liability for property defects is not governed by the general rule of vicarious liability provided in section 815.2 but rather by the provision in sections 830 to 835.4 of the Government Code.”  (Longfellow v. County of San Luis Obispo (1983) 144 Cal.App.3d 379, 383.)   

But even if § 815.2 applies, a public employee is not liable for injuries caused by a condition of public property where such condition exists because of any act or omission of such employee within the scope of his employment. (Gov. Code, § 840.)  This is specifically what the Plaintiffs and Cross-Complainants allege in this cause of action. That is, that a dangerous condition of public property existed which should have been repaired by an employee of the City working within the scope of his employment and that, therefore, the City may be vicariously liable for the employee’s failure to act.  However, since the employee is immune, the public entity cannot be held liable for the acts of the employee, and any such cause of action must fail.  (Longfellow, 144 Cal.App.3d at 383.) 

Trespass 

The City argues that Plaintiffs and Cross-Complainants’ claim for trespass must fail because it is not based on any statute, and the Tort Claims Act abolished all common law tort claims against a municipality.  The Court agrees.   

Gov. Code § 815 provides that “[e]xcept as otherwise provided by statute … a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.”  The Legislative Committee Comments for the section specifically admonish that “[t]his section abolishes all common law or judicially declared forms of liability for public entities ….”  Further, those Comments recognize that the “practical effect of this section is to eliminate any common law governmental liability for damages arising out of torts.”  (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 798 (holding that any duty imposed on a public entity must be grounded in statute).)  Here, Plaintiffs and Cross-Complainant have failed to cite to any statute that would impose liability on the City for trespass.   

Additionally, trespass is an intentional tort.  (Church of Christ in Hollywood v. Superior Court (2002) 99 Cal.App.4th 1244, 1252.)  With respect to intentional torts, the City is not subject to liability where the plaintiff fails to name as a co-defendant the City employee or elected official who allegedly committed the tort.  (Gov. Code § 815.3.)  Plaintiffs and Cross-Complainant have not named any elected official or city employee who allegedly engaged in the trespass.  Accordingly, their claim for trespass must also fail.       

CONCLUSION 

Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART the City of Beverly Hills’ motion for summary judgment or in the alternative for summary adjudication.      

 

IT IS SO ORDERED. 

 

DATED: January 9, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court