Judge: Mark A. Young, Case: 21SMCV00922, Date: 2023-03-23 Tentative Ruling

Case Number: 21SMCV00922    Hearing Date: March 23, 2023    Dept: M

CASE NAME:           Yang v. HSWR Inc., et al.

CASE NO.:                21SMCV00922

MOTION:                  Motion for Summary Judgment

HEARING DATE:   3/23/2023

Legal Standard

            A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (CCP, § 437c(a).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (CCP, § 437c(f)(1).) If a party seeks summary adjudication as an alternative to a request for summary judgment, the request must be clearly made in the notice of the motion. (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1544.)  “[A] party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to” subdivision (t). (CCP, § 437c(t).) 

            To prevail, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (CCP, § 437c(c).) The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, “[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment…” (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if adjudication is otherwise proper the motion “may not be denied on grounds of credibility,” except when a material fact is the witness’s state of mind and “that fact is sought to be established solely by the [witness’s] affirmation thereof.” (CCP, § 437c(e).) 

            Once the moving party has met their burden, the burden shifts to the opposing party “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (CCP § 437c(p)(1).) “[T]here is no obligation on the opposing party... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor.” (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) 

“The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to frame the outer measure of materiality in a summary judgment proceeding.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493, quotations and citations omitted.) “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Ibid.) 

EVIDENTIARY ISSUES

Plaintiff’s objections to Rodio declaration:  SUSTAINED as to the objection numbered 19 based upon a lack of foundation and an improper legal conclusion, but otherwise OVERRULED.

As set forth below, the City of Los Angeles has not met their initial burden in this matter, and therefore, the Court does not consider their evidentiary objection to the declaration of Harvey Kreitenberg.  To the extent the Court changes its tentative ruling, the City’s objection to the Kreitenberg Declaration would be SUSTAINED pursuant to Code of Civil Procedure section 2015.5.  Plaintiff may also file a signed declaration prior to the hearing. 

Analysis

Defendant City of Los Angeles moves for summary judgment on the fourth cause of action in the First Amended Complaint (FAC) filed by Plaintiff Debra Wong Yang stating a claim for inverse condemnation.  In their motion, Defendant City argues that Plaintiff’s property failed to have a properly installed backflow valve as required by law and as a part of the intended design of the sewer system, which precludes liability for inverse condemnation.

To state a claim for inverse condemnation, a plaintiff must allege: (1) that plaintiffs own or have a similar property interest in real property; (2) the property was taken or damaged; (3) by a public project; (4) and causation.  (City of Oroville v. Superior Court (2019) 7 Cal.5th 1091 (“Oroville”).)  Causation in an inverse condemnation differs from causation in the context of general negligence. To establish causation, a plaintiff must first show that “[a] ‘deliberate action’ undertaken by a public entity ‘in furtherance of public purposes’—including . . . a public improvement such as a water system or a flood control—” triggered the inverse condemnation action. (Id. at 1103.)  Plaintiff must show the causal nexus between an “inherent risk” in the design or construction of the public improvement and the harm in question, whether it was intentional or the result of negligence by the public entity. (Id. at 1103–1104.) “Inherent risk” and "substantial causation" both play distinct roles in the analysis of inverse condemnation and both must be present for a public entity to be liable. (Id. at 1106.) In other words, a “link to one of the aforementioned ‘inherent risks’ is necessary, but not sufficient, for a successful inverse condemnation claim.”  (Id.at 1107.)  A showing of “substantial causation” is also required. (Id.) Furthermore, “[l]iability depends on whether some element of physical, but-for causation is present to link the public improvement and the damage. The 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 1108.)

Accordingly, Defendant City will only be liable for inverse condemnation if the damage was the result of the public improvement as deliberately designed, implemented, or maintained. Here, the City argues that when the blockage occurred, the sewer system did not fail to function as intended because it was designed with such blockages in mind. When the blockage occurred, the sewage backed up into the closest opening upstream of the blockage, which happened to be the area lateral to the Property. According to the city, the sewage backed into the Property, instead of onto the street via the nearest maintenance hole, because the Property did not have a properly installed backwater valve in the lateral.

The City provides evidence that the main sewer lines, the laterals, the maintenance holes and the backwater valves, were part of the deliberate design of the City’s sewer system as a whole. (UMF 2.) If any of the required component parts were missing, the sewer system would likely not function as intended. (UMF 2.) Blockages in the sewer system were anticipated and expected to occur and the system was deliberately designed to accommodate such blockages. (Rodio Decl. ¶ 9.) When anticipated blockages occur within the main sewer line, the sewage backup was expected to flow out of the lowest opening nearest the anticipated blockage. (Id. ¶ 10.) If the nearest opening to the blockage was a maintenance hole, the sewage would flow out the hole and into the public street. (Id.) If the nearest opening was a lateral line, a required backwater valve in the lateral line would stop the sewage backflow onto the property and the sewage would eventually still flow out of the nearest maintenance hole and into the public street. (Id.)  Although the Property had a backwater valve before the alleged sewage overflow, it is undisputed that backwater valve was installed defectively. (UMF 7.)  The City’s expert concludes that had a properly functioning backwater valve been installed, the sewage would not have backed up into the Property. (UMF 8.)

The City cites to the Los Angeles Municipal Code (LAMC) and California statutes as a part of the overall design of the sewer system, which, in some cases, requires private citizens to have blockage valves on their property. California Plumbing Code section 710.1 (as incorporated by reference through LAMC Section 94.700.0) states:

Fixtures installed on a floor level that is lower than the next upstream manhole cover of the public, or private sewer shall be protected from backflow of sewage by installing an approved type of backwater valve. Fixtures on such floor level that are not below the next upstream manhole cover shall not be required to be protected by a backwater valve. Fixtures on floor levels above such elevation shall not discharge through the backwater valve. Cleanouts for drains that pass through a backwater valve shall be clearly identified with a permanent label stating "backwater valve downstream."

Therefore, to prevail in this motion, the City must demonstrate that the relevant “fixture” was on a “floor level that is lower than the next upstream manhole cover” so that a functioning backflow/blockage valve was a part of the design of the sewer system. (Id.) If they do not, then the City does not show that a functioning backflow valve was a part of the deliberate design of the sewer system as applied to this Property.

 The Court concludes that the City fails to provide critical evidence demonstrating that the above requirement for a backflow valve applies to the fixture(s) in question. There is no admissible evidence that the relevant fixture was lower than the nearest manhole cover in elevation. As to the Property and fixtures, the City presents evidence that the sewer main runs behind the Property, and that a backwater valve was installed in the sewer lateral located in a concrete vault. (Rodio Decl., ¶ 17.) Critically, “[t]he Property, and at least some of its fixtures, are below the elevation of the upstream maintenance hole.” (Id. ¶ 19, emphasis added.) The City makes no specific reference to the relevant fixture. Moreover, the Court sustained Plaintiff’s evidentiary objection to this portion of the Rodio Declaration.  Even without the Court sustaining this objection, the City only presents evidence that “some” of the undisclosed fixtures are below the elevation of the upstream maintenance hole. Without a showing that the specific fixture that flooded was on a level below the upstream manhole cover, then under the cited standards, the fixture was not required to have a backwater valve.   

Without a showing that the relevant fixture was on a level below the relevant manhole cover, then under the cited standards, the fixture “shall not discharge through the backwater valve.”  If the Code requires that a fixture “shall not” discharge through a backwater valve, then the Court cannot conclude that the design of the sewer system included the backwater valve at issue here. As such, a backflow valve was not a part of the deliberate design of the sewer system as applied to the Property.

Therefore, the City does not meet its initial burden to show entitlement to judgment as a matter of law on the inverse condemnation cause. Accordingly, the City’s motion is DENIED.