Judge: Mark E. Windham, Case: 21STLC03070, Date: 2022-09-12 Tentative Ruling

Case Number: 21STLC03070    Hearing Date: September 12, 2022    Dept: 26

MOTION FOR SUMMARY JUDGMENT

(CCP § 437c)

TENTATIVE RULING: 

Defendant City of Los Angeles’ Motion for Summary Judgment is GRANTED.

DEFENDANT TO FILE PROPOSED JUDGMENT WITHIN TEN (10) DAYS OF THIS ORDER.

SERVICE:

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 75/80 Day Lapse (CCP 12c and 1005 (b)) OK

SUMMARY OF COMPLAINT: Action for inverse condemnation.

REQUEST FOR RELIEF: Grant summary judgment in Defendant’s favor. The parties’ settlement agreement required the Property to have a backflow valve. The failure of the Property to have a backflow valve as required was an intervening superseding cause of the damage to the Property. Therefore, Defendant is not liable for the damage to the Property. Pursuant to the settlement agreement, Plaintiff also released Defendant from any damages from future sewer spills.

OPPOSITION: The settlement agreement is irrelevant to this action because it concerns the back property, which is located at 847 N. Rampart Blvd., Los Angeles, California. This action concerns the front property, which is located at 847 ½ N. Rampart Blvd., Los Angeles, California. Plaintiff had no duty under the settlement agreement to install a backflow valve on the front property. Nor did Plaintiff have a duty to install a backflow valve under the Plumbing Code, which was updated nine years after Plaintiff purchased the front property. Plaintiff’s expert opines that it was Defendant’s failure to hydro-flush the main sewer line in May 2020.

REPLY: None filed as of September 7, 2022.

ANALYSIS:

On April 16, 2019, Plaintiff Caroline Sim (“Plaintiff”) filed the instant action for inverse condemnation against Defendant City of Los Angeles (“Defendant”). Defendant filed the instant Motion for Summary Judgment on June 29, 2022. Plaintiff filed an opposition on August 29, 2022.

Discussion

Allegations in the Complaint

The Complaint alleges that on August 15, 2020, Plaintiff’s real property, located at 847 ½ N. Rampart Blvd., Los Angeles, California (“the Property”) was flooded with raw, black sewage water from the public street. (Compl., ¶¶2, 9.) The flooding was caused by a backup of the main sewer line at Coronado Avenue, about one block away from the Property. (Id. at ¶10.) This main sewer line backup had previously occurred on May 18, 2017 and January 13, 2019. (Ibid.) Defendant is responsible for keeping the main sewer line in good repair as the entity with full care, custody and control of the line. (Id. at ¶11.) Plaintiff previously reached a settlement with Defendant following an earlier incident that flooded the Property with sewer water. (Id. at ¶12.)

Following the settlement, Plaintiff installed a backflow preventer on the Property sewer line, but it only protected the back of the Property. (Id. at ¶13.) After this incident, a second backflow preventer had to be installed on the front part of the sewer line. (Id. at ¶¶13-14.) As a result of the cleaning, investigation and installation of the backflow preventer, Plaintiff incurred damages of at least $16,500.00 and loss of use of the Property. (Id. at ¶¶14-15.)

Evidentiary Objections

Plaintiff’s evidentiary objections, Nos. 1-5, are overruled.

Defendant’s Initial Burden of Proof

A defendant seeking summary judgment must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Plaintiff is under no evidentiary burden to produce rebuttal evidence until Defendant meets its initial moving burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832, 839-840.)

Defendant moves for summary judgment on the grounds that the cause of action for inverse condemnation fails without a showing that its conduct caused Plaintiff’s damages, which is a necessary element. (Wildensten v. East Bay Regional Park Dist. (1991) 231 Cal.App.3d 976, 979-981 [“To state a cause of action for inverse condemnation, the plaintiff must allege the defendant substantially participated in the planning, approval, construction, or operation of a public project or improvement which proximately caused injury to plaintiff's property.”].) Defendant argues that Plaintiff was obligated under the parties’ settlement agreement to install a backflow valve on the lateral sewer line at the front of the sewer and that it was Plaintiff’s failure to do so was the cause of the damage to the Property.

In support of the Motion, Defendant presents the following facts: Plaintiff executed a Settlement Agreement and General Release of All Claims (“the Settlement Agreement”) in prior LASC Case No. BC697090 with respect to the Property. (Motion, Separate Statement, Fact No. 1; Kator Decl., ¶2 and Exh. A.) Under the Settlement Agreement, Plaintiff was required to install a backflow valve on the Property in accordance with the City’s Plumbing Code. (Motion, Kator Decl., Exh. A, §3(b).) It goes on to state that if Plaintiff fails to install the backflow valve within six months of receipt of the settlement payment, Plaintiff will be barred from suing Defendant for damages related to or arising out of future sewer backups on the Property. (Motion, Kator Decl., Exh. A, §3(b).) The Settlement Agreement also contains a general release of “all matters relating to or arising from, or which reasonably could relate to or arise from, the events, occurrences, matters, and transactions….including any future sewage spills.” (Motion, Kator Decl., Exh. A, §3(d).)

Plaintiff admits that there was no backflow valve protecting the front of the Property. (Motion, Separate Statement; Fact No. 2; Shemtoob Decl., Exh. B, RFA Response No. 1.) Defendant offers the declaration of a Sanitation Wastewater Manager, Kwasi Berko, a licensed civil engineer who “oversee[s] the sewer infrastructure for the entire City, including the City sewer infrastructure which services” the Property. The Property was required to have a backflow valve at that location under the section 710.1 of the City’s Plumbing Code because it is located below the closest upstream maintenance hole. (Motion, Separate Statement, Fact Nos. 3-4; Berko Decl., ¶¶11-12.) The placement of backflow valves in properties located downstream of the nearest maintenance hole is to prevent sewer spills from flowing onto those properties. (Motion, Berko Decl., ¶¶6-12.) Blockages in the main sewer line are expected occurrences and the system is designed to deal with the blockages by having the sewage spill out onto the public street, instead of onto private property, assuming all properties have backflow valves installed as required. (Motion, Berko Decl., ¶¶17-18.) The sewage flowed onto the Property due to the fact that Plaintiff had not installed a backflow valve at the front of the Property. (Id. at ¶¶14-15.)

This evidence carries Defendant’s initial burden of proof with respect to Plaintiff’s ability to prove the causation element of the cause of action for inverse condemnation. The burden now shifts to Plaintiff to demonstrate the existence of a triable issue of material fact.

Plaintiff’s Burden to Demonstrate the Existence of a Triable Issue of Material Fact

In opposition, Plaintiff first argues that this action concerns damages to the property located at 847 N. Rampart Blvd., Los Angeles, California, which is the address for the front property, while the prior action and settlement between the parties concerned 847 ½  N. Rampart Blvd., Los Angeles, California, or the back property. (Opp., Separate Statement, Fact No. 2; Sim Decl., ¶3.) This argument, however, is contradicted by the allegations in the Complaint, which seek damages for the property located at 847 ½  N. Rampart Blvd., Los Angeles, California. (Compl., ¶¶2, 9.) Therefore, Plaintiff cannot rely on damages to the property located at 847 N. Rampart Blvd., Los Angeles, California to oppose the instant Motion. (See Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 [“papers filed in response to a defendant's motion for summary judgment may not create issues outside the pleadings”].) It remains undisputed that the parties entered into a settlement and release with respect to the Property that was put at issue by the allegations in the Complaint.

Nor does Plaintiff’s opposition demonstrate the existence of a triable issue of material fact regarding her obligation to install a backflow preventer at the front of the Property. Defendant’s Sanitation Wastewater Manager, Berko, declared that the cause of the damage to the Property was the lack of a backflow preventer. (Motion, Berko Decl., ¶¶14-15.) Berko explained that blockages in the main sewer line are expected occurrences. (Id. at ¶¶17-18.) Plaintiff provides the declaration of an expert who opines that the cause of the damage to the Property was Defendant’s failure to perform preventative maintenance, but does not opine as to whether a backflow valve could have prevented the sewage from flooding the Property. (Opp., Lee Decl., Exh. G, pp. 1-2.) Therefore, the expert’s opinion does not create a triable issue of material fact regarding the cause of damages to the Property.

Conclusion

Based on the foregoing, Defendant City of Los Angeles’ Motion for Summary Judgment is GRANTED.

Moving party to give notice.