Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

DISCUSSION 

This lawsuit arises from property damage connected to work performed by Defendant Southern California Edison’s (“SCE’s”) outside contractor, Defendant Edison Power Constructors, Inc. (“EPC”).  While replacing a deteriorated SCE utility pole on Topanga Canyon Boulevard, EPC inadvertently drilled into an underground drainage culvert owned by Defendant The People of the State of California (or “Caltrans”), and then set the replacement pole into the broken pipe.  During a subsequent rainstorm, the blockage to the culvert caused a mudslide on Plaintiff William Howell’s property located downhill from the damaged pipe.   

The relevant facts are as follows: Plaintiff, through his trust, owns the property located at 604 S. Topanga Canyon Boulevard, Topanga, California (the “Property”).  (Undisputed Material Fact (“UMF”) No. 1.)  The Property is adjacent to and below Topanga Canyon Blvd, which is owned by Caltrans.  (UMF No. 3.)  Caltrans has an easement on the Property where a storm water drainage system (“Caltrans Drainage System” or “CDS”) is located.  (UMF No. 4.)   

The CDS includes an 18-inch drainpipe under Topanga Canyon Blvd, that drains into a culvert adjacent to the upper slope of the Property (the “Culvert”), and another drainage pipe that drains from the lower slope of the Property into Dix Creek.  (UMF No. 5.)  The purpose of the Culvert is to collect and pass drainage under the highway, to prevent or reduce water on the highway surface to safely maintain the function of the highway for traffic.  (UMF No. 6.)   

The design of the CDS is to minimize, if not eliminate, the risk of landslides and erosion to the area.  (UMF No. 8.)  The Culvert design is based on Caltrans’ standard plans and specifications and was properly constructed.  (UMF No. 10.)  The CDS had performed as expected during the 23 years that Plaintiff owned the Property.  (UMF No. 9.)     

On September 30, 2019, EPC was hired by SCE to replace a pole which is located on the Caltrans right of way on Topanga Canyon Blvd, adjacent to the Property.  (UMF No. 11.)  EPC drilled into the Culvert, and installed the new pole into it.  (UMF No. 13.)  EPC damaged the Culvert by drilling into the Culvert pipe and obstructing it with the new pole.  (UMF No. 14.)  Caltrans never authorized EPC to place the pole into the Culvert.  (UMF No. 15.)  EPC did not have a valid permit for the pole work.  (UMF No. 16.) 

On December 29, 2019, a heavy rainstorm caused flooding and damage to the upper and lower slopes of the Property.  (UMF No. 17.)  The type of flooding had never occurred at any time during Howell’s ownership.  (UMF No. 18.)  The damage to the Property was a direct result of EPC’s installation of the new utility pole blocking the Culvert and causing stormwater to undermine the drainage system.  (UMF No. 19.)  EPC’s actions were negligent.  (UMF Nos. 20-22.)  The Culvert and CDS operated as designed and performed acceptably until the Culvert was damaged by EPC.  (UMF Nos. 30-31.) 

Caltrans maintains a database of maintenance records in its IMMS system, which reflects inspection and maintenance work on its streets and highways, including at the Property.  (UMF No. 23.)  In the nine years before December 29, 2019, there were no maintenance related issues reported at the Property, including as to the Culvert.  (UMF Nos. 24-25.)  There was never any complaint as to the stability or any question as to the proper functioning of the slope and drainage system until after the flood occurred on December 29, 2019.  (UMF No. 32.)   

Any problems would have been reported on the IMMS Work Order Report.  (UMF No. 26.)  Based on the IMMS Work Order Report, there was no notification from anyone indicating any issues regarding the drainage pipe until December 29, 2019.  (UMF No. 27.) 

This hearing is on Caltrans’ motion for summary judgment of Plaintiff’s sole claim against it, for inverse condemnation.  Caltrans argues that the claim fails because (1) there was no inherent risk as to design, construction and maintenance of the Culvert/CDS which were both performing properly to eliminate the risk of flooding until EPC’s negligent installation of the new pole, and (2) the Culvert and CDS did not substantially cause damage to the Property; rather, any damage was substantially caused by EPC’s negligence.   

EVIDENTIARY OBJECTIONS  

Plaintiff filed an untimely opposition, which the Court declines to consider.  The opposition is also based on a declaration from counsel that was not signed under penalty of perjury, and accordingly, much of Plaintiff’s evidence (which was attached to counsel’s declaration) is inadmissible.       

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).  “The burden of a defendant moving for summary judgment only requires that he or she negates plaintiff’s theories of liability as alleged in the complaint.  A moving party need not refute liability on some theoretical possibility not included in the pleadings.”  (Tsemetzin v. Coast Federal Savings & Loan Ass’n (1997) 57 Cal.App.4th 1334, 1342.)   

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.)  A defendant need not conclusively negate each and every element of a cause of action but must only show that enough evidence exists that one element cannot be established by the plaintiff.  (Aguilar, 25 Cal.4th at 853.)  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.)  

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.) 

  DISCUSSION 

         Until very recently, California courts treated inverse condemnation actions as strict liability claims.  However, in 2019, the California Supreme Court in City of Oroville v. Superior Court of Butte Cty (2019) 7 Cal.5th 1091 explicitly rejected the proposition that inverse condemnation actions are subject to strict liability and significantly narrowed the application of the doctrine. 

In Oroville, plaintiff-dentists sued the City of Oroville when sewage damaged their office after a sewer main backup occurred.  The City argued that the damage would not have happened had the dentists installed a sewer-backflow device that was required by a local ordinance.  The trial court ruled that inverse condemnation had occurred even though the city shared causal responsibility for the damage.  The City appealed.  The Court of Appeal concluded that the dentists’ failure to install the backflow valve did not defeat the inverse condemnation claim and affirmed.  The Supreme Court reversed.   

Oroville held that “[p]ublic entities are not strictly or otherwise automatically liable for any conceivable damage bearing some kind of connection, however remote, to a public improvement.”  (Id. at 1098.)  “A court assessing inverse condemnation liability must find more than just a causal connection between the public improvement and the damage to private property … the damage to private property must be substantially caused by an inherent risk presented by the deliberate design, construction or maintenance of the public improvement.”  (Id. at 1105.)  Both “inherent risk” and “substantial causation” are necessary for a public entity to be held liable.  (Id. at 1106.) 

“The inherent risk assessment requires a reviewing court to consider whether the inherent dangers of the public improvement as deliberately designed, constructed or maintained materialized and were the cause of the property damage.”  (Id. at 1106.)  To establish substantial causation, “[t]he damage must be the ‘necessary or probable result’ of the improvement, or if ‘the immediate, direct and necessary effect’ thereof was to produce the damage.”  (Id.)  “At the core of the test is the requirement that – even in the case of multiple concurrent causes – the injury to private property is an ‘inescapable and unavoidable consequence’ of the public improvement as planned and constructed.”  (Id.)  The Supreme Court held there is a presumption that the “public entity acted reasonably in reaching its decision to adopt a particular plan of design, construction or maintenance.”  (Id. at 1107.)  

Applying these factors, the Supreme Court held that the city is not liable for the damage to the plaintiffs’ property.  The plaintiffs did not show that damage was substantially caused by an inherent risk of the sewer system as designed, constructed or maintained.  (Id. at 1110.)  The city in fact showed that the sewer was constructed in accordance with accepted design and construction practices.  (Id.) 

Here, the Property damage was not an inherent risk of the design, construction or maintenance of the Culvert and CDS.  The CDS and Culvert were designed to eliminate the risk of land-sliding and soil erosion.  (UMF No. 8.)  The Culvert design is based on Caltrans standard plans and specifications and was properly constructed.  (UMF No. 10.)  The CDS and Culvert did their job for over 23 years without a problem, according to Plaintiff.  (UMF No. 9.)  Plaintiff’s expert, Matthew Marcus, even concedes there was never any complaint as to the stability or any question as to the functioning of the drainage system until after the flood occurred.  (UMF No. 32.)  EPC damaged the Culvert by inserting a 50 foot utility pole into the Culvert and consequently obstructing the flow of stormwater through the pipe.  (UMF Nos. 13-14, 19.)  That act was certainly not an inherent risk of the design, construction or maintenance of the Culvert or CDS.   

Further, Plaintiff cannot show that the Culvert and CDS substantially caused damage to the Property.  The Culvert and CDS were performing properly until EPC installed the pole into the Culvert.  (UMF No. 9.)  Plaintiff has admitted that the cause of damage to his Property was EPC’s negligence.  (UMF Nos. 20-22.)  The substantial cause of the Property damage was EPC’s unauthorized and negligent placement of a new pole into the Culvert.  The damage to the Property is not an “inescapable and unavoidable consequence” of the CDS and Culvert as planned and constructed.   

Under Oroville, therefore, Plaintiff’s inverse condemnation claim fails because Plaintiff cannot show that the damage to his Property was substantially caused by an inherent risk in the design and maintenance of the CDS and Culvert.   

CONCLUSION 

For the foregoing reasons, the Court GRANTS Caltrans’ motion for summary judgment.  

 

DATED:  January 9, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court