Filed 3/17/20; Certified for publication 4/7/20 (order attached)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                DIVISION ONE

                                         STATE OF CALIFORNIA



 SONIA RUIZ et al.,                                                D074654 consolidated with
                                                                   D075355
          Plaintiffs and Respondents,

          v.
                                                                   (Super. Ct. No. 37-2016-00004183-
 COUNTY OF SAN DIEGO,                                              CU-EI-CTL)

          Defendant and Appellant.


         APPEALS from a judgment and order of the Superior Court of San Diego County,

Eddie C. Sturgeon, Judge. Reversed with directions.

         Thomas E. Montgomery, County Counsel and Norman Thomas Deak, Deputy

County Counsel for Defendant and Appellant.

         Thorsnes Bartolotta McGuire, Vincent J. Bartolotta, Karen R. Frostrom, and J.

Domenic Martini for Plaintiffs and Respondents.

         Laura E. Hirahara for California State Association of Counties and League of

California Cities, as Amicus Curiae on behalf of Defendant and Appellant.
       Sonia and Hector Ruiz's (together Ruiz) home flooded because their privately

owned underground storm drain pipe rusted out over 50 years of use. They sued the

County of San Diego (County) for inverse condemnation, and after a bench trial the court

entered judgment in their favor for $328,000—essentially the cost of replacing their

metal pipe (the Ruiz pipe) with a reinforced concrete pipe.

       The primary issue on appeal is whether a privately owned storm drain pipe located

on private property, for which a public entity had rejected an offer of dedication,

nevertheless becomes a public improvement because "public water" drains through it. We

agree with the County that on this record and under settled law, the answer is no. The

County also contends that the trial court's alternative basis for imposing liability—that

the County acted unreasonably in discharging water through a public drainage system

that connects to the Ruiz pipe—also fails. Even viewing the evidence most favorably to

Ruiz, the evidence is insufficient to sustain the judgment on this theory. Accordingly, we

reverse with directions to enter judgment for the County.

                   FACTUAL AND PROCEDURAL BACKGROUND

       A. The Ruiz Property and Pipe

       In 1998, Ruiz purchased a single family home in an unincorporated part of the

County (the Property). The Property is at the east end of a valley (Valley). Before the

Ruiz's subdivision was developed, the natural watercourse in the Valley was a stream.1




1      A "natural watercourse" is " 'a channel with defined bed and banks made and
habitually used by water passing down as a collected body or stream in those seasons of
                                             2
The stream ran easterly, draining surface waters across the Property and continuing to a

lake.

        At some point before the area was developed in 1959, the Valley watercourse was

improved with above-ground concrete lined channels, including one on the Property.

These carried water to and across the Property.

        In 1959, developers building homes in the Valley replaced the above-ground

concrete channel with underground reinforced concrete pipe (RCP). The developers

"essentially dropped the RCP pipe system right into that concrete drainage channel . . . ."

This included the existing drainage channel on the Property—except that on the Property,

instead of using RCP, the developer buried corrugated metal pipe (the Ruiz pipe) on top

of the existing concrete-lined channel. As a result, Valley water that previously drained

over the Property now went underground, allowing the lot to be developed.

        The Ruiz pipe connects to and is a continuation of the Valley's storm drain system

and is part of the natural watercourse.2 There are about 10 private properties between the

Ruiz pipe and the closest public street. Thus, the final 450 feet of the Valley pipeline




the year and at those times when the streams in region are accustomed to flow. . . .' "
(Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 345 (Locklin).)

2      Although it may seem counterintuitive for a pipe to be part of a "natural"
watercourse, Locklin states, "Alterations to a natural watercourse, such as the
construction of conduits or other improvements . . . do not affect its status as a 'natural'
watercourse." (Locklin, supra, 7 Cal.4th at p. 345.) "A natural watercourse . . . may
include new channels created in the course of urban development through which waters
presently flow." (Ibid.)

                                              3
before reaching the Ruiz pipe is also on private property. The following diagram depicts

the Property with the Ruiz pipe.:




       The County did not design, construct, install, or maintain the Ruiz pipe. The

County does not own the pipe—Ruiz does. In 1959, the developer offered to dedicate an

easement to the Ruiz pipe; however, the County did not accept that offer.

       B. Valley Drainage Into the Ruiz Pipe

       In the photograph below, the Property is in the upper right, denoted as "530

Broadview St." The upstream drainage area boundary—the "tributary area"—is marked

by the dotted line. The tributary area contains private homes and public streets—a




                                            4
substantial part of which is in City of San Diego (City) jurisdiction. A "fair amount" of

the water in the drainage system originates from property within the City's jurisdiction.




       Water in the tributary area drains into curb inlets, underground pipes (some

publicly and some privately owned), through the Ruiz pipe, and ultimately discharges

near a freeway. The image below shows part of the system's flow near the Property.




                                             5
        C. Flooding

        In December 2014 and again in January 2016, the Property flooded during rain,

damaging furniture and floor coverings in Ruiz's home. The flooding occurred because

part of the bottom of the Ruiz pipe had rusted away. Ruiz's civil engineering expert, Joel

Morrison, testified that constant water runoff from upstream privately owned homes was

alone enough to cause the pipe to rust out over the years. The useful life of corrugated

metal pipe is about 30 years. The Ruiz pipe, which lasted about 50 years, simply outlived

its useful life.


                                             6
       Shortly after the 2016 flood, Mr. Ruiz repaired the pipe by patching the rusted-

away bottom with cement and reconnecting the pipe to a junction. The parties dispute the

adequacy of this repair—Ruiz's expert calling it a "band-aid" while the County's expert

testified the pipe should now last another 10 to 15 years. In any event, it is undisputed

that the Property has not flooded since Mr. Ruiz's repair.

       D. Litigation

       When Ruiz purchased the Property in 1998, they were unaware of both the pipe

and the manhole providing access to it.3 Mr. Ruiz did not notice the manhole until after

the December 2014 flood. Although Mrs. Ruiz saw the manhole in 1999, she did not

know what it was and ignored it.

       Ruiz sued the County for trespass, nuisance, inverse condemnation, and

declaratory relief. At trial, Ruiz's attorney asserted "two alternate theories" of liability:

(1) The County acted "unreasonably" in discharging water through the Ruiz pipe without

inspecting or maintaining the pipe; and (2) By using the Ruiz pipe for 50 years, the

County has "taken an easement over that drainage facility," requiring the County to

maintain the Ruiz pipe.4 In a posttrial hearing Ruiz's attorney summarized her theories,




3      Only the lip of the manhole is on the Property; the rest is on Ruiz's neighbor's
property.

4       In closing argument, Ruiz's counsel alluded to a third theory, stating the County
was liable because the "storm drain is a public improvement, and they have an obligation
if a public improvement causes damage." To the extent these remarks imply a strict
liability standard, on appeal Ruiz concedes that the California Supreme Court has not
                                               7
stating, "The position I took during trial in [sic] that this is a public work as part of an

integrated system that the County used unreasonably without a plan for maintenance.

And that's the basis for liability."

       After a bench trial, the court issued a statement of decision in Ruiz's favor for

inverse condemnation. The court found that "the continuous use of causing public water

from the County's drains and inlets through the metal storm drain pipe on the [Ruiz]

property caused the pipe to deteriorate and fail, which in turn caused the flooding and

damage to [Ruiz's] property." The court found that the County implicitly accepted a

drainage easement "requiring the County to maintain the pipe." Citing Skoumbas v. City

of Orinda (2008) 165 Cal.App.4th 783 (Skoumbas), the court held that the County's

"interest and control of an integrated drainage system makes the [County] liable for the

[Ruiz's] damages caused by the [County's] unreasonable diversion of water though the

[County]-owned portions of the storm drain system to [Ruiz's] private property." The

court dismissed Ruiz's causes of action for trespass and nuisance.5 The court awarded

Ruiz $322,441, representing the cost to replace the metal pipe with RCP, plus other




applied strict liability in inverse condemnation cases involving public improvements
designed to protect against property damage caused by flooding.

5      Neither the statement of decision nor the judgment mentions Ruiz's cause of action
for declaratory relief. There is no cross-appeal. (See Preserve Poway v. City of Poway
(2016) 245 Cal.App.4th 560, 585.)

                                               8
damages for a total award of $328,033. Subsequently, the court awarded Ruiz

$529,540.40 in attorney fees and costs.6

                                       DISCUSSION

 I. THE TRIAL COURT'S FINDING THAT THE COUNTY IMPLICITLY ACCEPTED
   A DRAINAGE EASEMENT IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE

       A. Introduction

       To prevail on inverse condemnation, "the property owner must show there was an

invasion or appropriation (a 'taking' or 'damaging') by a public entity of some valuable

property right possessed by the owner, directly and specially affecting the owner to his

detriment." (Prout v. Department of Transportation (2018) 31 Cal.App.5th 200, 211

(Prout).)

       Here, Ruiz contends that the County's 50-year use of their pipe as part of the

Valley drainage system "constitutes an acceptance" of a drainage easement and

concomitant duty to maintain the pipe—even though in 1959 the County rejected the

offer of dedication. The trial court agreed with Ruiz, stating:

            "I want to make very clear for the record, for the appellate court
            that . . . . [t]he usage and the way that water was used to come down
            to the Ruiz property, that the County implicitly took that pipe and
            had an easement to run that water through the Ruiz property."

       Elaborating, the court found that by using the Ruiz pipe "for drainage of surface

water over fifty years," the County had exercised the requisite "dominion and control"



6      The County's separate appeal from the postjudgment order awarding attorney fees
is Ruiz et al. v. County of San Diego, D075355.

                                              9
required to impliedly accept the offer of dedication. The County contends this finding is

not supported by substantial evidence.

       B. The Standard of Review

       "Inverse condemnation presents a mixed question of fact and law. [Citation.] We

review the trial court's determination of the historical facts for substantial evidence; we

review de novo the applicable law and application of that law to the facts." (Prout,

supra, 31 Cal.App.5th at p. 211.)7 When all the material facts and reasonable inferences

from those facts are undisputed, and only one correct legal conclusion may be drawn

from those facts, the reviewing court is not bound by the trial court's ruling. (Sprunk v.

Prisma LLC (2017) 14 Cal.App.5th 785, 794.)

       C. Using the Ruiz Pipe as Part of the Watercourse, Without More, Does Not Make
          it a Public Improvement or Constitute Implied Acceptance of a Drainage
          Easement

       A private landowner may transfer an interest in real property to the public by

making an offer of dedication. However, "[t]here must also be an acceptance by the

public of the offer to dedicate. [Citation.] Acceptance may be express or implied."

(Baldwin v. City of L. A. (1999) 70 Cal.App.4th 819, 837.) Until an offer of dedication

has been accepted, there is no public property interest. (Ibid.)



7      Citing San Diego Metropolitan Transit Development Bd. v. Handlery Hotel, Inc.
(1999) 73 Cal.App.4th 517, Ruiz contends the applicable standard of review is "
'substantial evidence.' " However, review in this case is neither entirely de novo nor
entirely limited by the substantial evidence rule. Handlery Hotel, which applied
substantial evidence review to factual determinations and independent review to legal
questions, is consistent with our approach. (Id. at p. 528.)

                                             10
       Here, the parties stipulated that the County did not accept the offered dedication of

an easement to the Ruiz pipe. In determining whether the County nevertheless impliedly

accepted the dedication by conduct, the parties cite four cases: Locklin, supra, 7 Cal.4th

327; DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329 (DiMartino); Ullery v.

County of Contra Costa (1988) 202 Cal.App.3d 562 (Ullery); and Marin v. City of San

Rafael (1980) 111 Cal.App.3d 591 (Marin). We discuss each in turn.

       The Locklin plaintiffs were downstream property owners along a natural

watercourse—a creek. Public upstream development (paved streets and other public

areas) increased the volume and velocity of water flowing into the creek. The increased

flow eroded the creek's banks, damaging the plaintiffs' property. (Locklin, supra, 7

Cal.4th at p. 339.) Like Ruiz, the Locklin plaintiffs sued for inverse condemnation,

asserting that public entities had transformed the watercourse into a public work of

improvement by discharging water into it. (Id. at pp. 340-341.) The California Supreme

Court rejected that argument, stating:

          "Utilizing an existing natural watercourse for drainage of surface
          water runoff . . . does not transform the watercourse into a public
          storm drainage system. A governmental entity must exert control
          over and assume responsibility for maintenance of the watercourse if
          it is to be liable for damage caused by the streamflow on a theory
          that the watercourse has become a public work." (Locklin, supra,
          7 Cal.4th at p. 370.)

       Viewing the evidence in the light most favorable to Ruiz, and applying Locklin's

analysis, as we must, the Ruiz pipe has not become a public work. The County's use of

that pipe as part of a public drainage system does not, without evidence of "control" or



                                            11
"maintenance" transform the privately owned pipe into a public work. (Locklin, supra, 7

Cal.4th at pp. 370-371.)

       Moreover, even without Locklin, we would reach the same conclusion. DiMartino

is particularly instructive because its facts are strikingly similar to Ruiz's case. There, as

here, the plaintiffs' property was developed in the 1950's. (DiMartino, supra, 80

Cal.App.4th at p. 332.) As here, before development the natural watercourse flowed

across the plaintiffs' property. (Ibid.) Also like Ruiz's case, the developer in DiMartino

installed a metal pipe under the plaintiffs' property as part of a system to manage storm

waters collected on public roads. (Ibid.) And like Ruiz's case, the public entity in

DiMartino did not accept an offer of dedication of an easement over that pipe. (Id. at

p. 333.)

       Some 40 years later, the DiMartino homeowners discovered the metal pipe had

deteriorated. (DiMartino, supra, 80 Cal.App.4th. at pp. 332-333.) Much like the trial

court's decision here, in DiMartino the trial court determined the public entity was liable

because it " 'substantially and directly participated in storm drainage management activity

for public benefit by its community-wide storm drain system, which includes the

deteriorating corrugated metal pipe located on and damaging plaintiffs' property.' "

(Id. at p. 335.)

       The appellate court in DiMartino reversed. The Court of Appeal framed the issue:

"The key question is whether connection of a private pipe segment to an admittedly

public pipe segment converts the former to a public improvement." (DiMartino, supra,

80 Cal.App.4th at p. 343.) Ruiz similarly frames their theory, stating: "The County

                                              12
utilized the [Ruiz] pipe as an integral and necessary part of the County storm drain

system for over 60 years. This use constituted an implied acceptance of the drainage

easement that the County initially rejected, and this acceptance converted the pipe to a

public improvement."

       The Court of Appeal in DiMartino rejected the plaintiffs' contention that the public

entity's use of their private pipe for area drainage was, without more, enough to impliedly

accept the offer of dedication. Such a rule, the Court of Appeal stated, would circumvent

the Subdivision Map Act because "a developer would no longer need to comply with

requirements of dedication and acceptance, connection of any pipe on private property to

a public roadway cross-culvert would transform the private pipe to a public one. We

have found no case recognizing such a doctrine." (DiMartino, supra, 80 Cal.App.4th at

p. 343.) Absent evidence that the public entity planned, constructed, or maintained the

privately owned metal pipe, the DiMartino court concluded, "The purpose of the pipe

appears to have been entirely private: to permit construction of private

residences . . . which otherwise would have been unbuildable due to waters flowing in a

natural watercourse." (Id. at p. 344.)

       On similar facts, the Court of Appeal in Ullery also rejected an inverse

condemnation theory. There, landowners sued a county for inverse condemnation when

landslides resulted from erosion caused by a natural watercourse of a 40-acre watershed,

part of which consisted of a creek on their private property. (Ullery, supra, 202

Cal.App.3d at pp. 566, 567.) The trial court found the public entity was not liable

because it (1) owned no part of the creek bed; (2) had expressly rejected the developer's

                                            13
offer of dedication of a drainage easement within the natural watercourse; and (3) never

took any affirmative steps exhibiting dominion and control, such as improving,

maintaining, or repairing the creek bed. (Id. at pp. 568-570.) The Court of Appeal

affirmed, holding that even though a public entity's use of private land for a public

purpose over time may constitute implied acceptance of an offer of dedication—the

public entity must still take affirmative steps exhibiting dominion or control over the

property by participating in its improvement, maintenance, or repair to evidence the

public entity's acceptance and, therefore, support a finding of public use. (Ibid.)

Although the subject property was part of the drainage system of a larger 40-acre

watershed—that alone was insufficient:

          "By expressly rejecting the offer of dedication, the public entities
          demonstrated they were foregoing any public use of the property.
          Although the creek was a part of the drainage system which drained
          a 40-acre watershed, the absence of dominion and control exhibited
          by the public entities, supports the trial court's finding of no public
          use." (Ullery, supra, 202 Cal.App.3d at p. 570.)

       Describing conduct that would have constituted implied acceptance of the offer of

dedication, Ullery states, "Official acts of dominion and control constituting acceptance

of the private drainage system can be shown if the public entity does maintenance and

repair work." (Ullery, supra, 202 Cal.App.3d at p. 568.)

       Thus, DiMartino, supra, 80 Cal.App.4th 329 and Ullery, supra, 202 Cal.App.3d

562 stand for the proposition that a privately owned drain pipe on private property, for

which the public entity has expressly rejected an offer of dedication, does not become a

public work merely because "public water" drains through it. The public entity must do


                                             14
more to impliedly accept an offer of dedication that it previously expressly rejected.

       Marin, supra, 111 Cal.App.3d 591 answers the question—how much more?8

There, homeowners sued for inverse condemnation after a storm drain pipe under their

home failed. A previous owner had laid the pipe in a natural watercourse. What

distinguishes Marin from DiMartino and Ullery is that the public entity there was

substantially involved in installing the privately owned pipe. For example, a surveyor

employed by the public entity instructed the property owner " 'exactly what pipe to lay

and how to do it.' " Then, the public entity provided the trucks, dirt, and water to

complete the installation. (Marin, at p. 594.) After installation, the city-employed

surveyor inspected the pipe. (Ibid.) On those facts, the appellate court reversed a defense

judgment, holding that the plaintiffs' damages resulted from the City's "maintenance and

use of a public improvement . . . ." (Id. at p. 596.)

       Ruiz's case is squarely within DiMartino, supra, 80 Cal.App.4th 329 and Ullery,

supra, 202 Cal.App.3d 562. As in those cases, here the undisputed evidence is the

County did nothing demonstrating dominion or control of the Ruiz pipe. There is no

evidence that any County employee participated in planning, constructing, maintaining,

inspecting, or repairing the Ruiz pipe. The County had no right of access to the Ruiz

pipe; it is entirely on private property. Moreover, by expressly rejecting the offer of




8      To the extent the court in Marin applied an absolute liability standard, an issue not
involved here, it was disapproved in Bunch v. Coachella Valley Water Dist. (1997) 15
Cal.4th 432, 447-448 (Bunch).

                                              15
dedication, the County demonstrated that it was not accepting any maintenance

obligation.

       Although the Ruiz pipe is part of a system that drains the Valley watercourse,

DiMartino and Ullery hold that such use alone—even over an extended period of time (in

DiMartino, 40 years)—is legally insufficient to constitute an implied acceptance of a

drainage easement. (DiMartino, supra, 80 Cal.App.4th at p. 343; Ullery, supra, 202

Cal.App.3d at p. 570.) Indeed, the Court of Appeal in DiMartino rejected the same

argument Ruiz makes here—i.e., the public entity's use of the privately owned pipe for an

extended time period as part of a public storm drain system, by itself, establishes implied

acceptance of a drainage easement or transforms the private property into a public work.

(DiMartino, at p. 339.) The DiMartino court explained that such an assertion "separates

Marin [supra, 111 Cal.App.3d 591] from its facts, particularly ignoring . . . evidence that

[the pipe in Marin] was installed under the supervision of the city engineer . . . ."

(DiMartino, at p. 339.) Here, as in DiMartino, "[t]here is simply no evidence of any

actions of [the public entity] from which the court could infer substantial participation in

the construction, management or operation of the storm drainpipe or the exercise of

dominion and control by [the] public entity." (Id. at p. 340.)

       Additionally, in DiMartino the appellate court also noted that the "purpose of the

pipe appears to have been entirely private: to permit construction of private residences"

on lots that otherwise would have been unbuildable "due to waters flowing in a natural

watercourse." (DiMartino, supra, 80 Cal.App.4th at p. 344.) Similarly here, before

development, surface waters drained across the Property in an open ditch. Even Ruiz's

                                              16
expert testified that the pipe is located "in a natural watercourse." Thus, the undisputed

evidence is that although the natural watercourse on Ruiz's property serves the Valley,

the pipe under Ruiz's property serves their development interests alone.

       D. Ruiz's Arguments are Unpersuasive

              1. Factual arguments

       Disagreeing with this analysis, Ruiz makes several broad factual assertions. For

example, Ruiz contends DiMartino is distinguishable because the underground pipe there

"was not an integrated part of the public storm drain system" but instead a "rogue pipe

that was not needed or used by the [public entity] to control its stormwaters." However,

we read the case differently. In DiMartino, "surface storm water inlets" under a public

street led to underground pipes connecting to a pipe under the plaintiffs' home, which in

turn "came to the surface at its exit into the natural watercourse on the western edge of

the plaintiffs' property." (DiMartino, supra, 80 Cal.App.4th at p. 332.) Thus, the

privately owned pipe in DiMartino was connected to the public storm drain system.

       Ruiz also contends that "most of the water that flows through the pipe originates in

the County . . . ." (Italics added.) However, the record shows otherwise. Morrison

conceded he had "no way of apportioning the amount of water contributed . . . to this

drainage system" as between the County and City. Indeed, Morrison could not even

state whether water from public streets in the County's jurisdiction caused Ruiz's

damages:

           "Q: And because you've not done a hydrology study and you've
               never calculated the area of the public streets, of the County
               streets, in the drainage area, you cannot say whether those

                                             17
               public streets contributed flow that was damaging to the [Ruiz]
               property in this case?

          "A: Correct."

       Ruiz further asserts, "There is no evidence that the pipe beneath [the Property]

replaced a natural watercourse." Elaborating, Ruiz claims that the County did not replace

a natural stream with drainage improvements, but rather diverted water that otherwise

would have flowed elsewhere to the Property, "conduct which constitutes a taking."

(Italics added.) However, the record also belies this assertion. Morrison testified that the

Ruiz pipe is in a natural watercourse. Ruiz's attorney elicited this testimony himself:

          "Q: Have you seen evidence that the pipe running through the Ruiz'
              property actually replaced a natural water course?

          "A: Yes."

       Surprised by this concession, county counsel asked Morrison the same question

and got the same answer:

          "Q: Did I hear that correctly, that it's your opinion that the pipe on
              the [Ruiz] property was located in a natural water course?

          "A: That would be my understanding."9

       Now on appeal, Ruiz attempts to discredit this testimony, asserting that Morrison

"did not state the evidence on which that conclusion was based" and he had " 'little

information' " about the relevant improvement plans. However, this testimony drew no



9      In closing argument, county counsel explained, "Morrison also testified . . . that
the pipe on the [Ruiz's] property was put in a natural watercourse. That surprised me
because I've been trying to get that established for this whole case."

                                            18
objection at trial, and by eliciting this evidence themselves—from their own retained

expert no less—Ruiz "are hardly in a position to object" on lack of foundation grounds

now. (See Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21, 38-39.)

       Citing Skoumbas, supra, 165 Cal.App.4th at page 791, Ruiz also asserts that cases

involving a natural watercourse (such as Locklin) should not be followed because

"[s]urface water passing through a pipe does not constitute a watercourse." However, in

Locklin, the California Supreme Court stated, "Alterations to a natural watercourse, such

as the construction of conduits or other improvements in the bed of the stream, do not

affect its status as a 'natural' watercourse." (Locklin, supra, 7 Cal.4th at p. 345.) Neither

the cited page nor any other language in Skoumbas states otherwise. Indeed, citing

Locklin, the Court of Appeal in Skoumbas acknowledged that a pipe placed in a natural

watercourse is considered a natural watercourse. (Skoumbas, at p. 795, fn. 13.)10

       In a related argument, Ruiz asserts that "the evidence did not conclusively prove

that the pipe replaced a concrete drainage channel." Again, however, the record refutes

this assertion. Viewing a photograph of the exposed Ruiz pipe, Morrison testified:

          "Q: Do you see this large piece of concrete—flat concrete leaning
              up against the right hand side of the hole?

          "A: Yes.

          "Q: Do you believe that this is the visible portion of the pre-existing
              concrete trapezoidal drainage ditch?


10     For this reason, we reject Ruiz's argument that Locklin, supra, 7 Cal.4th 327 and
Ullery, supra, 202 Cal.App.3d 562, both of which involve a natural watercourse, are
distinguishable on this basis.

                                             19
            "A: I think that is what we are looking at."

       Moreover, Ruiz acknowledges that before development, the Valley contained a

natural stream running through their subdivision. Morrison testified that this stream was

the "main water course" draining the Valley. Morrison inspected design plans for the

Property's development. The plans showed the original stream was replaced with a

concrete drainage channel—the main watercourse out of the Valley. Morrison further

testified that the plans show the concrete channel was replaced by the underground

pipeline that exists today. Morrison testified that the developer constructed the

underground pipeline "into that water course or into the location of the water course."

       Ruiz also asserts that "the trial court made no finding that the pipe either replaced

a watercourse or was itself a natural watercourse." That is true; the statement of decision

omits such a finding. However, in objections to the initial statement of decision, the

County called the court's attention to this omission and urged the court to make that

finding. Therefore, we do not imply a finding favorable to Ruiz. (Code Civ. Proc.,

§ 634.)11




11     "When a statement of decision does not resolve a controverted issue . . . and the
record shows that the omission . . . was brought to the attention of the trial court . . . prior
to entry of judgment . . . it shall not be inferred on appeal . . . that the trial court decided
in favor of the prevailing party as to those facts or on that issue." (Code Civ. Proc.,
§ 634.)



                                               20
              2. Legal arguments

                      a. Skoumbas

       Ruiz also disagrees with our legal analysis, primarily asserting that Skoumbas,

supra, 165 Cal.App.4th 783 is "the most applicable case" and compels that the judgment

be affirmed. More specifically, Ruiz asserts that "[j]ust like the plaintiffs' [sic] in

Skoumbas, the Ruiz family was harmed when the piped storm drain system that the

County used as part of its integrated storm drain system failed due to a lack of

maintenance."

       This argument fails because the facts and legal issues in Skoumbas are materially

different from those here. First and foremost, Skoumbas does not involve the failure of

an underground pipe owned by the plaintiffs. Rather, the damage was caused when an

upstream pipe not owned by the plaintiffs discharged water onto their property.

(Skoumbas, supra, 165 Cal.App.4th at p. 787, italics added.) The Skoumbas court itself

noted the significance of such a distinction, stating, "[T]his case does not involve the

failure . . . of a secret subterranean drain. It involves potential liability for the diversion

of surface water." (Skoumbas, at pp. 795-796.)

       The legal issue in Skoumbas is also materially different from the ones here. In

Skoumbas, the public entity sought summary judgment, asserting that although it owned

the road, the catch basin, and the first 40 feet of drainpipe, it was not responsible for any

flow of water below the first 40 feet because the rest of the pipe was privately owned.

(Skoumbas, supra, 165 Cal.App.4th at p. 787.) Thus, the legal issue was whether as a

matter of law, private ownership of any part of the pipeline was a complete bar to the

                                               21
plaintiff's potential recovery. (Id. at p. 794.) The Court of Appeal reversed summary

judgment, explaining, "[T]he critical inquiry is not whether the entire [drainage] system

was a public improvement, but rather whether [the public entity defendant] acted

reasonably in its maintenance and control over those portions of the drainage system it

does own." (Id. at p. 787.)

       Skoumbas expressly declined to address whether a public agency's mere use of a

privately owned pipe impliedly accepts an offer of dedication previously expressly

rejected. (Skoumbas, supra, 165 Cal.App.4th at p. 796, fn. 14.) "[C]ases are not

authority for propositions not considered." (Howard Jarvis Taxpayers Assn. v. Newsom

(2019) 39 Cal.App.5th 158, 169.)

                     b. Marin

       Ruiz also relies on Marin, supra, 111 Cal.App.3d 591 in urging that their pipe had

become part of a public work of improvement because storm drain water from the large

County system ran through it. However, as discussed ante, the public entity in Marin did

not merely use the private pipe—it directed and substantially participated in its

installation. (Marin, at p. 594.) Ullery distinguished Marin on that very ground. (Ullery,

supra, 202 Cal.App.3d at pp. 569-570.)

       Thus, although the Ruiz pipe is part of a public drainage system, that fact alone is

insufficient evidence to support a finding that the County impliedly accepted an offer of

dedication or otherwise converted the pipe into a public work. (Ullery, supra, 202

Cal.App.3d at pp. 570-571.) Absent an easement or accepted dedication, liability is

imposed on a public entity only when the public entity has exercised dominion and

                                            22
control over the private property. (Ibid.; DiMartino, supra, 80 Cal.App.4th at p. 343.)

Ruiz concedes that the County had nothing to do with the installation, maintenance, or

inspection of their pipe. Accordingly, even viewing the evidence in the light most

favorable to Ruiz, there is insufficient evidence to support the court's finding of implied

acceptance of dedication.

                     c. Supervisor's advice

       After the flooding, Mr. Ruiz threatened to pour enough concrete in their pipe to

completely block upstream flow. A County supervisor replied, "I don't advise that you

do that" because upstream homes would flood as a result. Ruiz contends the supervisor's

statement supports a finding that the pipe is a public work because "the entire system

could fail" if their pipe was completely obstructed.

       This argument is not persuasive for several reasons. First, upstream properties

will inevitably flood if the downstream watercourse is blocked. That is why both

upstream and downstream owners have a duty to act reasonably with respect to each

other's property.

          " 'It is . . . incumbent upon every person to take reasonable care in
          using his property to avoid injury to adjacent property through the
          flow of surface waters. Failure to exercise reasonable care may
          result in liability by an upper to a lower landowner. It is equally the
          duty of any person threatened with injury to his property by the flow
          of surface waters to take reasonable precautions to avoid or reduce
          any actual or potential injury.' " (Locklin, supra, 7 Cal.4th at p. 352,
          italics added.)

       The supervisor's comment simply urged Mr. Ruiz to act reasonably, which may

have been good advice. (Martinson v. Hughey (1988) 199 Cal.App.3d 318, 321, 330


                                              23
[affirming judgment enjoining downstream owner from obstructing the flow of water off

upstream property and awarding upstream owner damages].) In any event, this single

and isolated comment is significantly different from the type of dominion or control

courts have found necessary to support a finding of an implied acceptance of dedication.

(Ullery, supra, 202 Cal.App.3d at pp. 568-570; Marin, supra, 111 Cal.App.3d at p. 594.)

                       d. California Constitution, article I, section 19, subdivision (e)(5)

      Article I, section 19 of the California Constitution provides in part:

          "(a) Private property may be taken or damaged for a public use and
          only when just compensation . . . has first been paid to, or into court
          for, the owner. . . .

          "(b) The State and local governments are prohibited from acquiring
          by eminent domain an owneroccupied residence for the purpose of
          conveying it to a private person.

          "[¶] . . . [¶]

          "(d) Subdivision (b) of this section does not apply when State or
          local government exercises the power of eminent domain for the
          purpose of acquiring private property for a public work or
          improvement.

          "(e) For the purpose of this section:

          "[¶] . . . [¶]

          "5. 'Public work or improvement' means facilities or infrastructure
          for the delivery of public services such as . . . flood
          protection . . . water-related and wastewater-related facilities or
          infrastructure . . . and private uses incidental to, or necessary for, the
          public work or improvement." (Cal. Const., art. I, § 19, italics
          added.)12


12    Undesignated references to article I are to the California Constitution.

                                              24
       Asserting that "[t]he California Constitution defines a public improvement to

include " 'water-related . . . facilities or infrastructure" and incidental "private uses," Ruiz

contends that as a matter of law, their privately owned pipe is a public improvement.13

To resolve this issue, it is important to review the history of these provisions, which

amended the California Constitution by the passage of Proposition 99 in 2008 (Prop. 99).

(Historical Notes, 1D West's Ann. Cal. Const. (2012 ed.) foll. art. I, § 19,

pp. 332-333 [Historical Notes].)

       Proposition 99 was intended to reform eminent domain law in the wake of Kelo v.

City of New London (2005) 545 U.S. 469 by limiting eminent domain of owner-occupied

homes:

           " 'By enacting this measure, the people of California hereby express
           their intent to: [¶] "(a) Protect their homes from eminent domain
           abuse. [¶] "(b) Prohibit government agencies from using eminent
           domain to take an owner-occupied home to transfer it to another
           private owner or developer." (Historical Notes, supra, at p. 333,
           § 19, subds. (a)-(b).)

To effectuate this intent, article I, section 19, subdivision (b) prohibits state and local

governments from acquiring by eminent domain an owner-occupied residence to convey

it to a private person.

       However, this prohibition was not nearly as sweeping as might appear from

subdivision (b) alone. Again, before examining the text of this law, some historical



13    In Skoumbas, an identical issue was raised; however, the court found it
unnecessary to decide and expressed no opinion on the point. (Skoumbas, supra, 165
Cal.App.4th at p. 796, fn. 14.)

                                               25
background places it in context. Proposition 99 "was put on the ballot by . . . pro-

condemnation groups for the purpose of forestalling the more restrictive Proposition 98

(sponsored by property rights advocates)." (Ilya Somin, The Limits of Backlash:

Assessing the Political Response to Kelo (2009) 93 Minn. L. Rev. 2100, 2146.)

Proposition 99 included a provision negating Proposition 98 in the event Proposition 99

received more votes, which is what occurred. (Historical Notes, supra, at § 19, p. 333.)

       The broad prohibition on eminent domain in article I, section 19, subdivision (b) is

narrowed by subdivisions (d) and (e). Under subdivision (d), the prohibition in

subdivision (b) does not apply when private property is taken for a "public work or

improvement." Subdivision (e)(5) broadly defines "public work or improvement" to

include "private uses incidental to, or necessary for, the public work or improvement."

Thus, some of what Proposition 99 took away from state and local government in

subdivision (b) was given right back in subdivisions (d) and (e).

       Having seen how article I, section 19, subdivisions (b), (d), and (e) relate to each

other, we now consider subdivision (a). Subdivision (a) contains the provision requiring

the government to pay just compensation. It states in part: "Private property may be

taken or damaged for a public use and only when just compensation . . . has first been

paid to, or into court for, the owner. . . ." (Cal. Const., art. I, § 19, subd. (a), italics

added.) Thus, subdivision (a) is the source of liability for inverse condemnation. By its

own terms, such liability requires "a public use" of the property.




                                                26
        Article I, section 19 does not define "public use" as it appears in subdivision (a).

Subdivision (e)(5) defines a different term: "Public work or improvement," which

appears in subdivision (d), not subdivision (a).

        Although Ruiz does not openly acknowledge it, their argument assumes that the

definition of "public work or improvement" in subdivision (e)(5) also defines "public

use" in subdivision (a). However, Ruiz provides no analysis or citation to any authority

to support that assumption. More to the point, the plain language in article I, section 19,

subdivision (e)(5) shows it does not define "public use." Rather, it defines "public work

or improvement." Article I, section 19 uses "public work or improvement" only in setting

forth an exception to the prohibition created in subdivision (b). Article I, section 19 does

not use "public work or improvement" in establishing inverse condemnation liability

under subdivision (a). Accordingly, contrary to Ruiz's assertion, Article I, section 19

does not compel a finding that a privately owned storm drain pipe connected to a public

storm drain system is a public use for purposes of imposing inverse condemnation

liability.

II. THE TRIAL COURT'S FINDING THAT THE COUNTY ACTED UNREASONABLY
    IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE

        As an alternative basis for imposing inverse condemnation liability, the trial court

determined that the County acted "unreasonably in not making any effort to ensure that

the [County] was not damaging the [Ruiz] pipe." The County contends this legal

conclusion is also unsupported by substantial evidence.




                                              27
       A public agency "engages in a privileged activity when it drains surface water into

a natural watercourse or makes alterations to the watercourse." (Locklin, supra, 7 Cal.4th

at p. 367.) The public entity is liable for inverse condemnation only if it exceeds the

privilege by acting unreasonably. (Ibid.)

       Relevant here, Locklin held that "[w]hen alterations or improvements on upstream

property discharge an increased volume of surface water into a natural watercourse, and

the increased volume and/or velocity of the stream waters or the method of discharge into

the watercourse causes downstream property damage, a public entity, as a property

owner, may be liable for that damage. The test is whether, under all the circumstances,

the upper landowner's conduct was reasonable." (Locklin, supra, 7 Cal.4th at p. 337.)

The test for reasonableness "requires consideration of the purpose for which the

improvements were undertaken, the amount of surface water runoff added to the

streamflow by the defendant's improvements in relation to that from development of

other parts of the watershed, and the cost of mitigating measures available to both upper

and downstream owners. Those costs must be balanced against the magnitude of the

potential for downstream damage." (Ibid.)

       The County contends there is "no evidence" to support the finding that it acted

unreasonably. We agree. In the trial court, Ruiz asserted "the unreasonable conduct is

the failure to maintain this thing [the Ruiz pipe] despite using it for 50-plus years."

Again on appeal, Ruiz asserts, "it was unreasonable for the County to continue using the

pipe without maintaining it." Echoing Ruiz's argument, the trial court found the County



                                              28
acted unreasonably "in not making any effort to ensure that [it] was not damaging the

pipe."

         It is true that prior to the Ruiz flooding, the County did not maintain or even

inspect the Ruiz pipe. However, in determining whether the County acted unreasonably

in this context, "the critical inquiry" is not whether the public entity acted reasonably

with respect to someone else's property, but whether "the [public entity] acted reasonably

in its maintenance and control over those portions of the drainage system it does own."

(Skoumbas, supra, 165 Cal.App.4th at p. 787.) Thus, the relevant question is not the one

Ruiz frames and the trial court's finding addressed—whether the County unreasonably

failed to maintain the Ruiz pipe—rather, the issue is whether the County's ownership,

operation, or control of its property created an unreasonable risk of harm to Ruiz's

property. (Id. at p. 794.)

         There is no evidence to sustain even an implied finding that the County acted

unreasonably with respect to County property. To the contrary, the undisputed evidence

on this point, from Ruiz's own expert, was that because of the many homes in the

tributary area, water from those private properties alone (for example, irrigation or

washing cars) was enough to cause the Ruiz pipe to rust and fail.14 There was no

evidence—zero—that the County could have designed or operated any feasible

alternative drainage system with lower risks to the Property. Morrison could not even



14   This evidence caused county counsel to remark, "[W]e were now being accused of
damaging private property with private water . . . ."

                                               29
state whether public streets "contributed flow that was damaging to the [Ruiz's] property

in this case."15 Morrison had no opinion of whether the design, construction, or

maintenance of County-owned property in the drainage area caused or even contributed

to Ruiz's flooding.

       Moreover, even assuming, for the sake of argument, there was sufficient evidence

to sustain a finding of unreasonable County conduct, on this record the judgment would

still have to be reversed. Under Locklin, "an owner who is found to have acted

unreasonably and to have thereby caused damage to downstream property, is liable only

for the proportion of the damage attributable to his conduct." (Locklin, supra, 7 Cal.4th

at p. 338.) In other words, under Locklin, liability is several, not joint. (Ibid.)

       Here, there was undisputed evidence that the County was not responsible for a

significant amount of the drainage. Morrison testified that a "fair amount" of the flow in

the Valley watercourse originates in City—not County—jurisdiction.16 However,

Morrison did not conduct a hydrology study that was necessary to apportion drainage, nor



15     By way of contrast, Contra Costa County v. Pinole Point Properties, LLC (2015)
235 Cal.App.4th 914 is a case where liability was based on a property owner's failure to
maintain his own property, causing flooding to downstream property. There, a private
property owner knew or should have known of an existing large drainage channel on its
property and the need to maintain it to prevent flooding downstream development. (Id. at
pp. 923-924.) That evidence supported the trial court's conclusion that the private owner
acted unreasonably by failing to keep the drainage channel free of debris. In sharp
contrast here, there is no evidence that the County failed to reasonably maintain its
property in the tributary area.

16     Ruiz contends that "most of the water" originates on County streets; however, after
sustaining county counsel's objection, the court ordered that testimony stricken.

                                              30
did he have any information that would have enabled him to apportion among other

property owners in the tributary area:

          "Q: And again, because you have not done a hydrology study of the
              drainage area, you have no way of apportioning the amount of
              water contributed to this watershed, to this drainage system as
              between the City of San Diego jurisdiction and the County of
              San Diego jurisdiction, correct?

          "A: That's correct.

          "Q: And you have no opinion and have offered no opinion that
              would allow you to apportion between the amount of water
              contributed to this watershed and this drainage system by the
              privately owned properties in the watershed, is that correct?

          "A: That's correct.

          "Q: Or by the school that's located partially in this drainage area,
              right?

          "A: Yes.

          "Q: Or the churches.

          "A: Yes.

          "Q: Or the shopping centers.

          "A: Yes.

          "Q: Or the apartment complexes.

          "A: Yes."

       "An owner . . . whose conduct has a relatively minor impact on the stream flow in

comparison with the combined effect of actions by owners in the upper reaches of the

watercourse may not be held liable for any damage caused by the stream flow beyond the

proportion attributable to such conduct." (Locklin, supra, 7 Cal.4th at p. 360.) In this

                                            31
case, it was Ruiz's burden as plaintiff to "establish the proportion of damage attributable

to the public entity from which recovery was sought." (Id. at p. 372.) The complete

absence of any evidence upon which to apportion damages—as Ruiz's expert himself

conceded—independently compels the 100 percent liability judgment against the County

to be reversed. (Ibid.)

       Disputing this analysis, Ruiz contends Locklin is distinguishable because there, the

plaintiff sued five public entities, alleging each caused flooding. Ruiz asserts, "Having

undertaken the burden to prove those allegations as to each defendant, the plaintiff was

found to have been required to allocate liability amongst those five defendants. Without

citing any additional authority, Ruiz claims that because they chose to sue only the

County, it was the County's obligation to prove "that any of the damaging water

originated" from other sources.

       We do not read Locklin as placing the burden of proof of apportionment on the

defendant. Like Ruiz, the plaintiffs in Locklin also failed to sue all of the property

owners in the watershed. (Locklin, supra, 7 Cal.4th at p. 339, fn. 2 ["Less than 7 percent

of the property in the watershed is owned by defendants. Numerous other public and

private entities are owners of riparian property upstream from plaintiffs"].) As to the

named defendants in Locklin, the Court held liability was several and not joint. (Id. at

p. 372.) Moreover, the Locklin court also held that the plaintiffs' claim against the county

in that case—based on water runoff from county roads—also failed because "[t]he

evidence did not establish that any damage was attributable to that runoff." (Id. at

p. 374.)

                                             32
       In both Locklin, supra, 7 Cal.4th 327 and Bunch, supra, 15 Cal.4th 432, the

California Supreme Court stated, "If the public entity's conduct is unreasonable and a

substantial cause of damage, the entity " 'is liable only for the proportionate amount of

damage caused by its actions.' " (Bunch, at p. 436, quoting Locklin, at p. 368.) The

principles discussed in these cases "reflect the Supreme Court's adoption of flexible

principles in order to reach a result that is equitable, which recognizes the importance of

public works projects, and which ensures that the public entity be liable only for the

proportionate amount of damage caused by its actions." (Odello Bros. v. County of

Monterey (1998) 63 Cal.App.4th 778, 788.) Ruiz was free to sue only the County;

however, the recovery against any defendant cannot exceed that defendant's proportionate

share of damages. (Bunch, at p. 436; Locklin, at p. 368.)17

       Ruiz asserts that as a matter of policy, they "should not have to bear the burden of

a storm drain system which serves the general public." We sympathize with the situation

Ruiz find themselves in, which can be traced all the way back to their purchasing the

Property unaware of the pipe's existence. We also agree with them that property owners

should not be required to contribute more than their fair share to a public undertaking.

However, that policy must be balanced with the "possibility that imposing open-ended

liability on public entities charged with creating and maintaining flood control


17    Because of this disposition, it is unnecessary to consider the County's additional
contentions, including its argument that the court applied a legally incorrect measure of
damages.



                                             33
improvements will discourage the development of needed public works." (Bunch, supra,

15 Cal.4th at p. 450.) The legal principles developed in the cases we apply to this record

are an outgrowth of courts having balanced these policy considerations, and compel

reversal.

III. THE AWARD OF ATTORNEY FEES AND COSTS MUST BE REVERSED

       Code of Civil Procedure18 section 1036 provides for an award of attorney fees

and costs to a successful plaintiff in an inverse condemnation proceeding.19 After

judgment, the court awarded Ruiz $425,000 in attorney fees, plus $104,540.40 in costs.

The County separately appealed from that order; on our own motion, we consolidated the

two appeals.

       Ruiz's attorneys worked under a 40 percent contingency fee agreement. Based on

a $328,033 damage award, the contingency fee is about $131,200. Citing Pacific Shores

Property Owners Assn. v. Department of Fish & Wildlife (2016) 244 Cal.App.4th 12, the

County contends that the amount awarded ($425,000) is erroneous as a matter of law



18     Undesignated statutory references are to the Code of Civil Procedure.

19      "In any inverse condemnation proceeding, the court rendering judgment for the
plaintiff by awarding compensation, or the attorney representing the public entity who
effects a settlement of that proceeding, shall determine and award or allow to the
plaintiff, as a part of that judgment or settlement, a sum that will, in the opinion of the
court, reimburse the plaintiff's reasonable costs, disbursements, and expenses, including
reasonable attorney, appraisal, and engineering fees, actually incurred because of that
proceeding in the trial court or in any appellate proceeding in which the plaintiff prevails
on any issue in that proceeding." (§ 1036.)



                                             34
because section 1036 limits fees to those "actually incurred . . . ." Ruiz disagrees,

asserting the court had discretion to award more under Salton Bay Marina v. Imperial

Irrigation Dist. (1985) 172 Cal.App.3d 914.

       It is unnecessary to consider these arguments and we express no opinion on the

issue. Because we have reversed the compensation award, the award of attorney fees and

costs must also be reversed. Section 1036 provides for an award of "reasonable

costs . . . including reasonable attorney . . . fees, actually incurred" where the court

renders "judgment for the plaintiff by awarding compensation . . . ."

       "Under the plain language of [§ 1036], since [Ruiz] will not receive a

compensation award for inverse condemnation, they are not entitled to attorney fees."

(Buckley v. California Coastal Com. (1998) 68 Cal.App.4th 178, 202.)




                                              35
                                       DISPOSITION

       The judgment is reversed with directions to enter a new and different judgment in

favor of the County of San Diego. The postjudgment order awarding attorney fees and

costs is also reversed. In the interests of justice, the parties shall bear their own costs on

appeal.


                                                                     HUFFMAN, Acting P. J.

WE CONCUR:



AARON, J.



GUERRERO, J.




                                              36
Filed 4/7/20



                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                        DIVISION ONE

                                 STATE OF CALIFORNIA



 SONIA RUIZ et al.,                                 D074654 consolidated with
                                                    D075355
          Plaintiffs and Respondents,

          v.                                        (Super. Ct. No. 37-2016-00004183-
                                                    CU-EI-CTL)
 COUNTY OF SAN DIEGO,
                                                    ORDER CERTIFYING OPINION
          Defendant and Appellant.                  FOR PUBLICATION



THE COURT:

        The opinion in this case filed March 17, 2020, was not certified for publication. It

appearing the opinion meets the standards for publication specified in California Rules of

Court, rule 8.1105(c), the requests pursuant to rule 8.1120(a) for publication are

GRANTED.

        IT IS HEREBY CERTIFIED that the opinion meets the standards for publication

specified in California Rules of Court, rule 8.1105(c); and
      ORDERED that the words "Not to Be Published in the Official Reports" appearing

on page 1 of said opinion be deleted and the opinion herein be published in the Official

Reports.



                                                                 HUFFMAN, Acting P. J.

Copies to: All parties




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