Judge John J. Kralik, Case 19BBCV00081 2022-08-12 Tentative Ruling

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Superior Court of California

County of Los Angeles

Department B

Plaintiff Universe, Inc. (“Plaintiff”) alleges that on January 27, 2017, it discovered that water was flooding onto its property from Defendant Jeffery A. Kent’s (“Defendant”) property. Plaintiff alleges that Defendant’s property had a broken pipe and that underground water had been percolating for some unknown time on Defendant’s property to Plaintiff’s property. Plaintiff alleges that Defendant’s attempt to repair the pipes on his property on January 27, 2017, caused serious damage to Plaintiff’s property.

The complaint, filed January 25, 2019, alleges a single cause of action for negligence.

On May 20, 2022, Defendant filed a motion for summary judgment on the ground that Plaintiff’s sole cause of action for negligence lacks merit and Plaintiff cannot establish the essential element of causation.

With the reply brief, Defendant submitted evidentiary objections. The Court rules as follows:

Defendant moves for summary judgment on the sole cause of action for negligence in the complaint, arguing that Plaintiff cannot establish the element of causation.

The real property, residence, and other improvements owned by Plaintiff is located at 3616 Roberts View Place, Studio City, CA 91604 (“Plaintiff’s Property”), which is adjacent to and north-westerly downslope from the real property, residence, and other improvements formerly owned by Defendant located at 3610 Roberts View Place (“Defendant’s Property”). (Undisputed Material Fact [“UMF”] 1.)

On January 25, 2019, Plaintiff filed a complaint in this action against Defendant for negligence. (UMF 2.) The complaint alleges that on January 27, 2017, water flooded into Plaintiff’s Property from a broken pipe on Defendant’s Property and Defendant attempted to repair the underground pipes, but the flooding and Defendant’s attempt to repair the pipe proximately caused Plaintiff’s Property to be damaged. (UMF 3-5; Thai Decl., Ex. A.) The complaint alleges that underground water has been percolating for some unknown time from Defendant’s Property to Plaintiff’s Property. (UMF 6.)

On February 25, 2020, Plaintiff produced 3 repair estimates from Omega Design Inc., each of which were entitled Continuation Addendum / Estimate 2-18-2020 and the estimates provided for the repair, removal, and/or replacement/installation of water damaged flooring and base covers in the interior of the residence on Plaintiff’s Property—particularly, the master bedroom, master closet, second bedroom, second bedroom hallway, foundation, retaining wall, patio tiles, landscaping, and light scaping at the exterior of the residence. (UMF 7; Thai Decl., Ex. B.) On February 19, 2021, Plaintiff responded in the negative to Defendant’s special interrogatory asking if Plaintiff had repaired any of the damage to its property. (UMF 8; Thai Decl., Ex. C.) On June 10, 2021, Plaintiff supplemented its prior document production by producing a SoCalGas form dated May 13, 2021, pertaining to a leak in Plaintiff’s water heater. (UMF 9.)

The elements of a negligence cause of action are “duty, breach of duty, proximate cause, and damages.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 892.) “To establish the element of actual causation, it must be shown that the defendant's act or omission was a substantial factor in bringing about the injury.” (Padilla v. Rodas (2008) 160 Cal.App.4th 742, 752.) “In other words, plaintiff must show some substantial link or nexus between omission and injury.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 778.) As stated by the Court of Appeal in Mayes v. Bryan (2006) 139 Cal.App.4th 1075:

The proper test for proving causation is the “substantial factor” test. [Citation.] The “causation element of negligence is satisfied when the plaintiff establishes (1) that the defendant's breach of duty ... was a substantial factor in bringing about the plaintiff's harm and (2) that there is no rule of law relieving the defendant of liability.” [Citations.]

“Conduct can be considered a substantial factor in bringing about harm if it ‘has created a force or series of forces which are in continuous and active operation up to the time of the harm’ [citation], or stated another way, ‘the effects of the actor's negligent conduct actively and continuously operate to bring about harm to another’ [citation].” [Citation.]

Causation is proven when “a plaintiff produces sufficient evidence ‘to allow the jury to infer that in the absence of the defendant's negligence, there was a reasonable medical probability the plaintiff would have obtained a better result. [Citations.]’ [Citation.]” [Citations.]

(Mayes, supra, 139 Cal.App.4th at 1092–93.) “Causation may be determined as a question of law if reasonable minds would not differ.” (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 126.)

Defendant argues that the negligence cause of action fails because the element of causation is lacking. Defendant provides the declaration of Peter Petrovsky, a licensed professional engineer, to provide expert opinions that it would be impossible for any water to flow downslope from any alleged source from Defendant’s Property towards Plaintiff’s Property. (See Def.’s Fact 10-13 for Mr. Petrovsky’s background and expertise.)

In his declaration, Mr. Petrovsky states that he visited Plaintiff’s Property and Defendant’s Property on April 7, 2021 and took photographs of the conditions of the properties; he also gathered and reviewed land records from the City and County of Los Angeles; and he collected and reviewed rainfall data. (Def.’s Fact 14.) He states that the topographic contours of the land show that Plaintiff’s Property and Defendant’s Property are situated on a hillside ranging in elevation from 860 to 920 feet above sea level and that the slope from Defendant’s Property to and through Plaintiff’s Property varies but it is sloping about 50% (about 1 foot fall in two-foot run distance). (UMF 15.) He states that at the elevation of approximately 880 feet above sea level, there is about a 4-foot retaining wall located on or about the south property line of Plaintiff’s Property and directly behind (or just south of) the retaining wall is a substantial concrete drainage swale. (Def’s Fact 16.) He states that the swale is part of a drainage swale network system directing and controlling the runoff from Defendant’s Property, which is upslope from Plaintiff’s Property, into Laurelcrest Drive north of Plaintiff’s Property. (Def.’s Fact 17.) He states that the swale system is substantially oversized and has a large capacity in that it can accommodate as much as 500-4,000 cubic feet (4,000 to 30,000 gallons) of runoff per minute depending on the slope of the swale; the approximate maximum slope is about 50%. (Def.’s Fact 18.) Mr. Petrovsky states that due to the large capacity of the swale system, it would be impossible for any water flowing downslope towards Plaintiff’s Property from any alleged source from Defendant’s Property to enter Plaintiff’s Property and/or the residence. (Def.’s Fact 19.) He also states that Plaintiff’s Property is covered with very expansive soil (meaning the soils contain a vast quantity of clays causing the soil to swell when wet and dramatically shrink when dry) and the soils around the foundation of Plaintiff’s Property are loose and uncompacted. (UMF 20.) Mr. Petrovsky states that the decks around the residence on Plaintiff’s Property have subsided as much as 4 inches over a period of decades. (Def.’s Fact 21.) He states that the subsiding of the decks around the residence of Plaintiff’s Property is due in part to the fact that the decks are comprised of part concrete and part wood with hollow space underneath and hence porous, as well as the fact that the decks have no designed drainage scheme. (UMF 22-23.) He states that any water that lands on the decks around Plaintiff’s residence would immediately seep through to the ground, run off easterly into the swale that continues along the east side of the residence along the north-south property line, and drain to the north. (Def.s’ Fact 24.) He states, “There is no physical way any water that lands on the decks could rise to the level of the floor of Plaintiff’s residence.” (Def.’s Fact 25.) Mr. Petrovsky also opines that the site and site draining on Plaintiff’s Property is poorly maintained because they are filled with trash and debris that blocks water from flowing freely and will likely cause ponding behind the blockage of the draining improvement and he also states that the utilities (including a corroded water heater tank) on Plaintiff’s residence are poorly maintained. (Def.’s Fact 26-27.) The defects relating to the decks, draining, and utilities at Plaintiff’s Property have “absolutely no relationship” to any alleged damages resulting from any alleged water flooding from Defendant’s Property to Plaintiff’s Property or any alleged pipe repairs on Defendant’s Property. (UMF 28.) He states that he “found no damages at or on Plaintiff’s land that could have any possible connection to the alleged activities south of Plaintiff’s land.” (Def.’s Fact 29.) He states that rainfall data shows intense rainfall totaling 2.81 inches from January 24, 2017 to January 31, 2017 and there is approximately 4,000 square feet of tributary area above Plaintiff’s Property, totaling about 7,000 gallons from the rainfall by the end of January 2017. (UMF 30.)

Mr. Petrovsky states that rainfall of this magnitude directly over the uncompacted soil on Plaintiff’s Property, coupled with the condition of the water heater, and not any water from Defendant’s Property, “is more likely than not the cause of the settlement of the decks around Plaintiff’s residence and any alleged damage to the foundation of Plaintiff’s land.” (Def.’s Fact 31.) He also opines, “it is highly unlikely that any water percolating under Defendant’s land could reach Plaintiff’s land. Any percolating surface of sub-surface water would be stopped by the aforementioned swale and/or aforementioned retaining wall and retaining wall footing with sub-drain typically installed at the base of a retaining wall.” (Def.’s Fact 32.) Lastly, he opines that Plaintiff’s allegation in paragraphs 8-11 of the complaint are “physically impossible.” (Def.’s Fact 33.)

In opposition, Plaintiff argues that there are numerous triable issues of material fact.

First, Plaintiff argues that Mr. Petrovsky’s opinions are based on his 2021 inspection of the properties. While Mr. Petrovsky opined that even if water was to flow from Defendant’s Property into Plaintiff’s Property, the water would be diverted by the swale, making it impossible for the water to reach Plaintiff’s Property. However, as pointed out by Plaintiff, Mr. Petrovsky has not established that the swale existed in the first place in 2017; rather, his opinions are based on his observations of the properties in 2021. Plaintiff provides evidence that the swale against the retaining wall did not exist in 2017 and provides photographs taken in March 2017 and December 2017 to show that no swale existed at the time of the incident. (See Opp. at Exs. 4-5.) Shaoul Amar, manager of Plaintiff, states that Defendant Jeffrey Kent was the prior owner of the property in March 2017, which was before the concrete swale was constructed. (Amar Decl., ¶4.) Mr. Amar states that the 2017 photographs (regarding the work performed in March 2017 to repair the damaged sewer line) did not show that a concrete swale existed or was constructed at the time of the incident. (Id., ¶¶5-7.) In reply, Defendant argues that these “assertions are not plausible given the massive undertaking construction of the swale would entail, let alone the permitting and homeowners’ association approvals that would be required.” (Reply at p.4.) Yet would not this evidence also permit Defendant to show the date of the construction of the swale by direct evidence? Defendant’s assertion that the swale must have existed at the time of the subject incident and Mr. Amar’s statement that the swale did not exist and must have been constructed by the new owner of Defendant’s Property raise triable issue of material fact. Neither party definitely provides direct evidence of when the swale was constructed. The indirect evidence presents a triable issue and summary judgment cannot be granted on this basis.[1]

Second, Plaintiff argues that Mr. Petrovsky’s opinion that any percolating surface of subsurface water cannot pass because the retaining wall and footing would prevent it, is a disputed issue because the 2017 photographs show that subsurface water was in fact passing under the retaining wall and onto Plaintiff’s patio. (See Opp. at Ex. 5 at p. 72.) Whether the subsurface water could or could not pass in 2017 (as opposed to Mr. Petrovsky’s observations in 2021) also presents a triable issue of material fact. The fact that this evidence was assembled months after Defendant sold the property goes to the weight of the evidence, but does not prevent the existence of a triable issue of fact.

Third, in dispute of Mr. Petrovsky’s opinion that Plaintiff’s soil is porous, Plaintiff argues that Mr. Petrovsky has not provided any testing or examples to confirm this hypothesis. Further, Plaintiff provides the declaration of Danny Forster of Regal Restoration, which provided emergency home repair and restoration services to Plaintiff’s Property due to water damages. Mr. Forster states that his inspection of Plaintiff’s Property revealed that a substantial water leak from a broken pipe at the neighbor’s house located uphill caused flooding to Plaintiff’s Property. (Forster Decl., ¶3; Opp. at Ex. 2.) Again, Mr. Petrovsky’s opinions are based on his observations in 2021 and the Court cannot ascertain whether the same soil was present over the years, whether the soil has become more porous over time, etc. Further, Plaintiff raises triable issues of material fact on the cause of the water damage to its property.

Fourth, Plaintiff argues that Mr. Petrovsky’s opinions about trash and debris are irrelevant because those opinions are based on his inspection of the properties in 2021 and not the condition of the properties in 2017. (See Pl.’s Fact 26; Amar Decl., ¶11 and Ex. 5 at p. 70.) Similarly, Plaintiff argues that Mr. Petrovsky’s argument that the corroded water heater leak was the cause of Plaintiff’s damages is unsupported because the water heater was not leaking in 2017. Mr. Amar states that he had no issues with the water heater until 2021, which is when it began leaking. (Amar Decl., ¶12.) Furthermore, whether there was trash or debris (or the same trash and debris) in 2017 versus 2021 has not been established. This raises triable issues of material fact as well.

Fifth, Plaintiff argues that Defendant’s evidence of rainfall from January 24, 2017 to January 31, 2017 are irrelevant because Plaintiff had sustained damage earlier than January 24, 2017. Christopher Croisdale (president of The Croisdale Group, Inc., which performs general construction and consulting services specializing in water damage issues) states that he performed a site inspection of Plaintiff’s Property on December 13, 2017 to assess damages to the home as a result of a recent flooding. (Croisdale Decl., ¶2.) In addition, Mr. Forster of Regal Restoration does not specifically provide the date he provided services to Plaintiff, except to say that he was contacted in January 2017. (Forster Decl., ¶2.) However, the Regal Restoration invoice indicates that the “Date Assigned” was “1/21/2017” and the “Date Entered” was “1/28/2017.” (Opp. at Ex. 2.) This evidence at least raises a triable issue of material fact on whether remedial work to dry out Plaintiff’s Property had begun prior to the rainfall from January 24, 2017 to January 31, 2017.

Based on these facts and evidence presented by Plaintiff, Plaintiff has raised various triable issues of material fact on the issue of causation. Mr. Petrovsky’s testimony may present issues that Plaintiff will struggle with at trial given the lack of direct and contemporaneous evidence of the damage, but here Plaintiff need only show a triable issue of fact at the summary judgment. Thus, Defendant’s motion for summary judgment is denied.

[1] In reply, Defendant asks for a continuance of the motion if the Court determines there is a triable issue of material fact regarding the existence of the swale as early as 2017. (Reply at p.10.) The Court denies the request to continue the hearing on the motion. This was Defendant’s motion and Defendant chose to reserve this hearing date and bring the motion based on the evidence and arguments that it had at the time of filing. The motion will not be continued because Defendant prematurely brought this motion before the completion of discovery on this preliminary, foundational issue regarding the construction of the swale.