Filed 6/30/14 Gonzalez v. Carrera Construction CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT


FRANCISCO D. GONZALEZ et al.,
                                                                                           F065339
         Plaintiffs and Appellants,
                                                                                 (Super. Ct. No. 614551)
                   v.

CARRERA CONSTRUCTION et al.,                                                             OPINION
         Defendants and Respondents.


FRANCISCO GONZALEZ et al.,                                                                 F065968

         Plaintiffs and Respondents,                                             (Super. Ct. No. 614551)

                   v.
                                                                                     Stanislaus County
CITY OF RIVERBANK,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Stanislaus County. Roger M.
Beauchesne, Judge.
       Law Offices of Mina L. Ramirez, Mina L. Ramirez, Noah Kanter and Kevin M.
Massoni for Plaintiffs, Appellants and Respondents Francisco D. Gonzalez, Herlinda
Martinez and Jesus Francisco Gonzalez.
       Borton Petrini and John J. Hollenback, Jr. for Defendant, Respondent and
Appellant City of Riverbank.
       Law Offices of Brian C. Davis and Brian C. Davis for Defendants and
Respondents Carrera Construction, Inc., Larry Carrera and Claudia Coria-Carrera.
                                          -ooOoo-
       These consolidated appeals follow a jury trial on the complaint filed by appellants
and respondents, Herlinda Martinez and Francisco Gonzalez. Martinez and Gonzalez
alleged that their home flooded due to the acts and omissions of respondents, Carrera
Construction, Hilario Carrera and Claudia Coria-Carrera, the builders and sellers of the
single family residence, and appellant, City of Riverbank (City).
       Before the case was submitted to the jury, the trial court granted the Carreras’
motion for nonsuit on the fraud and conspiracy causes of action. Thereafter, the jury
found in favor of Martinez and Gonzalez on their cause of action for negligence against
the Carreras and on their cause of action for creating and maintaining a dangerous
condition of public property against the City.
       In posttrial rulings, the trial court granted the Carreras’ motion for judgment
notwithstanding the verdict (JNOV) on the negligence cause of action and awarded the
Carreras attorney fees as the prevailing parties. The trial court granted the City’s motion
for new trial in part and reduced the verdict on the economic damages. However, the trial
court denied the City’s motion for new trial on the noneconomic damages and the City’s
motion for JNOV.
       Martinez and Gonzalez contend the trial court erred in granting both the nonsuit
and the JNOV motions made by the Carreras. Contrary to Martinez and Gonzalez’s
position, nonsuit was properly granted on the fraud and conspiracy causes of action.

                                             2.
There was no evidence to support these claims. However, the trial court erred in granting
JNOV on the negligence cause of action. Substantial evidence supports the jury’s finding
that the Carreras were negligent in the design and construction of the home. Therefore,
the orders granting JNOV on the negligence claim against the Carreras and awarding the
Carreras attorney fees as the prevailing parties will be reversed.
       The City argues that the judgment against it must be reversed because the majority
of the evidence presented by Martinez and Gonzalez at trial focused on a theory that was
not part of the pre-litigation claim. At trial, the expert witness designated by Martinez
and Gonzalez testified that the City was negligent when it failed to properly maintain the
storm drains. However, the pre-litigation claim filed by Martinez and Gonzalez alleged
the City was negligent when it approved the construction of the streets, subdivision and
residence without providing for proper leveling and/or drainage. According to the City,
Martinez and Gonzalez were limited to the liability theory presented in the pre-litigation
claim. Thus, the trial court prejudicially erred in admitting the evidence on the City’s
alleged negligent maintenance of the storm drains and its emergency response. The City
is correct. Therefore, the judgment against the City will be reversed.
                                     BACKGROUND
       In 2004, Martinez and Gonzalez entered into a contract with the Carreras to
purchase a lot and have a residence constructed at 3518 Virginia Avenue, Riverbank.
Shortly after moving in, Martinez and Gonzalez discovered that the street and sidewalks
in front of their house tended to flood when it rained.
       On April 14, 2006, a series of very intense rain cells moved through the Riverbank
area. In a two-hour period starting at around noon, 2.19 inches of rain fell in Riverbank,
with 1.57 inches falling between 1:00 and 2:00 p.m. Water began accumulating in the
street in front of Martinez and Gonzalez’s house. Within a short time the water level was
high enough that the driveway, garage and yard were flooded and water was entering the



                                             3.
house. The water inside the house reached a depth of between one and two inches and
affected every room.
       Martinez attempted to reduce the flooding with sandbags. While carrying a
sandbag, Martinez slipped on a wet floor. She suffered bruises from the fall but was
completely healed in two weeks.
       Carpets, baseboards and drywall in the affected areas of the house had to be
replaced. The cost of these repairs totaled $2,681.
       In October 2006, Gonzalez, Martinez, and their six-year old son, Jesus, each filed
a claim against the City. These claims alleged

               “The City of Riverbank and its agents and employees, Jose Lopez,
       Henry Meyer, and others whose identities/names are unknown to Claimant
       at this time, were negligent in that they approved construction of streets,
       subdivision, and the residence/house at 3518 Virginia Avenue, in
       Riverbank, California. Said construction and/or subdivision
       planning/design did not provide proper leveling and/or drainage. As a
       result, Claimant’s house and contents have suffered flood damage due to
       rain.”
These claims alleged further damages based on Martinez’s fall and the exposure to
potential mold. The City rejected the claims.
       Following this rejection, Martinez and Gonzalez filed suit against the City and the
Carreras. The fifth amended complaint alleged that the Carreras were negligent in failing
to design and construct the house to protect it from the repeated flooding in the area. The
complaint further alleged that the Carreras knew or should have known of the prior
flooding, inadequate drainage, and improper grading and that they intentionally and
negligently concealed these facts. The complaint also charged the Carreras with fraud,
conspiracy, breach of contract and violation of the covenant of good faith and fair
dealing. Martinez and Gonzalez alleged that the City created a dangerous condition of
public property and allowed that condition to exist.




                                            4.
       To prove their claims against the City, Martinez and Gonzalez designated John
Squier, a civil engineer specializing in road maintenance, as their expert. When his
deposition was taken before trial, Squier opined that the City had been negligent in
maintaining the storm drains and did not adequately deploy its emergency response
personnel during the 2006 storm. Based on this deposition, the City moved in limine to
exclude Squier’s testimony on the ground that his opinions did not relate to the
allegations of negligent design and plan approval in the pre-litigation claims. In
response, counsel for Martinez and Gonzalez argued that the City had received adequate
notice through the complaint. The trial court denied the motion.
       At trial, Squier testified as to the opinions he formed regarding the City’s
maintenance of its storm drains in 2006. He found that there was no evidence of annual
cleaning procedures or appropriate inspections. Squier noted that the City neither kept
records nor had a system for maintaining records. Squier further opined that the City
should have known of this flooding problem and taken a “proactive approach during the
storm event.” In other words, the City should have dispatched people to the problem area
to make sure the drain was functioning properly because “when you know about areas
that cause problems, that should be your first order of business.” Instead, the City was
reactive and “just sent people out” who drove around and looked for plugged areas.
According to Squier, if City personnel see they are going to have a backup and the drain
is clear, they should “get some type of pumping device out there to pump the water out”
of the drain. Squier concluded that the City’s practices with respect to drainage
maintenance did not “meet the standard of care that you would expect of a [c]ity or a
[c]ounty.” However, Squier had no opinion on the design of the storm drain on Virginia
Avenue.
       To prove their claims against the Carreras, Martinez and Gonzalez relied on
testimony from several witnesses, expert and lay, including Hilario Carrera, who
Martinez and Gonzalez called under Evidence Code section 776.

                                             5.
       Martinez and Gonzalez testified that no one told them there had been flooding
incidents before they purchased the home and lot. After the first time the street and part
of the property flooded in 2004, Martinez spoke with Hilario Carrera. Carrera told
Martinez to speak with City personnel because it was a drainage issue.
        Hilario Carrera testified that he builds houses that comply with the building code.
According to Carrera, the foundation of the house at 3518 Virginia Avenue met the code
requirements. Carrera denied knowing or being told by anyone about the flooding
problems and claimed that he could not tell by looking whether the general area had
previously flooded. Although Carrera stated that, as a builder, he has no duty to
investigate the property before construction, he testified that if he had known of the
flooding, he would have raised the foundation. Carrera also acknowledged that the code
sets the minimum foundation height requirements.
       Various neighbors of Martinez and Gonzalez testified regarding the repeated
flooding problems. One neighbor, Kimberly Jaspar, lives in a house across the street.
Jaspar testified that she talked to the builder of Martinez and Gonzalez’s home and
anyone else who was out there and “voiced [her] concerns” about the lot flooding.
Another neighbor, Greg Sedain, a carpenter, moved across the street from 3815 Virginia
Avenue in the early 1990s, and experienced flooding shortly thereafter. Because of the
low grade of his lot, he elevated his house. According to Sedain, the higher elevation of
his house was noticeable from across the street. Sedain also stated that, when Martinez
and Gonzalez’s house was being built, it looked like the foundation was too low when
compared to the street.
       Martinez and Gonzalez presented expert testimony from Richard Paddock, a
certified home appraiser. Paddock investigated the house and took measurements,
including the slope of the lot. Paddock testified that, while the concrete patios, driveway
and walkways sloped away from the structure for 10 feet, the slope behind the house was
such that there was a one-and-a-half foot drop from the rear of the lot to the house.

                                             6.
According to Paddock, if water was released at the upper end of the slope in sufficient
quantity, the water would run through the house. Therefore, Paddock opined, the house
should have been built up. Paddock explained that he was not an engineer but that the
slope problem was obvious enough to raise a concern.
       The Carreras moved for nonsuit. Regarding the negligence causes of action, the
Carreras asserted that Martinez and Gonzalez had failed to put on any expert testimony
indicating that there had been a breach of the duty of care.
       The trial court granted nonsuit as to the causes of action for fraud/intentional
misrepresentation and conspiracy to defraud. The court found there was “not even a
scintilla of evidence to indicate that there was fraud involved.” The court concluded
there might have been negligent failure to disclose but not fraud. However, the court
denied the Carreras’ nonsuit motion on the remaining causes of action.
       The jury found in favor of Martinez and Gonzalez on the negligence claims
against the Carreras. The jury awarded Martinez $681 for past economic loss, $30,000
for past noneconomic loss, and $10,000 for future noneconomic loss, for a total of
$40,681. The jury awarded Gonzalez $2,000 for past economic loss, $12,000 for past
noneconomic loss, and $5,000 for future noneconomic loss, for a total of $19,000.
       On the dangerous condition of public property claim against the City, the jury
found in favor of Martinez and Gonzalez. The jury awarded Martinez $48,000 for past
economic loss and $100,000 for past noneconomic loss, including physical pain and
mental suffering. The jury awarded Gonzalez $48,000 for past economic loss.
       The Carreras moved for JNOV on the negligence claims. The trial court granted
the motion. Thereafter, the Carreras moved for attorney fees as the prevailing parties.
The trial court granted the Carreras’ request for attorney fees and awarded them $47,135.
       The City moved for a new trial and for JNOV. The City based its posttrial
motions on the grounds of jury misconduct, excessive damages, and the admission of
Squier’s testimony on matters not mentioned in the pre-litigation claims. The trial court

                                             7.
ordered a new trial on the issue of economic damages unless Martinez and Gonzalez
accepted a remittitur of the $96,000 award to $2,681. The trial court denied the
remainder of the motion for new trial and the motion for JNOV. Interpreting the pre-
litigation claim under a standard of “‘utmost liberality,’” the trial court concluded that it
was reasonably related to the allegations against the City in the complaint and fairly put
the City on notice of the claims.
                                       DISCUSSION
1.     Martinez and Gonzalez’s appeal.
       Martinez and Gonzalez contend the trial court erred in granting the Carreras’
JNOV motion, thereby negating the jury’s negligence verdict, and in granting nonsuit on
the causes of action for intentional misrepresentation/fraud and conspiracy to defraud.
Martinez and Gonzalez further assert the Carreras were not entitled to attorney fees under
either the contract or any other provision of law.
       a. Standard of review.
       The trial court may grant a motion for JNOV only if it appears from the evidence,
viewed in the light most favorable to the party securing the verdict, that the verdict is not
supported by substantial evidence. (Sweatman v. Department of Veterans Affairs (2001)
25 Cal.4th 62, 68.) Accordingly, the trial court may not weigh evidence, draw inferences
contrary to the verdict, or assess the credibility of witnesses. (Bengal v. Canfield &
Associates, Inc. (2000) 78 Cal.App.4th 66, 72.) On review, this court may uphold the
order granting JNOV only if, reviewing the evidence in the light most favorable to
Martinez and Gonzalez, resolving all conflicts and drawing all inferences in their favor,
and deferring to the implicit credibility determinations of the trier of fact, there was no
substantial evidence to support the jury’s verdict in their favor. (Ibid.)
       Similarly, a defendant is entitled to a nonsuit “when, disregarding conflicting
evidence, giving plaintiff’s evidence all the value to which it is legally entitled, and
indulging in every legitimate inference that may be drawn from the evidence, the trial

                                              8.
court determines that there is no sufficiently substantial evidence to support a verdict in
plaintiff’s favor.” (County of Kern v. Sparks (2007) 149 Cal.App.4th 11, 16.) As with an
order granting JNOV, on appeal from the granting of a nonsuit the reviewing court must
resolve every conflict in the testimony in favor of the plaintiff and indulge in every
presumption and inference that could reasonably support the plaintiff’s case. (Ibid.)
        b. The trial court erred in granting JNOV on the negligence cause of action.
        The Carreras moved for JNOV on the negligence cause of action on the ground
that there was no expert witness testimony supporting a finding that the construction of
Martinez and Gonzalez’s house fell below the standard of care. According to the
Carreras, the construction complied with building code requirements for foundation
elevation and was according to plans and specifications that had been approved by the
City.
        Martinez and Gonzalez’s negligence cause of action was based on their claim that
the Carreras either knew or should have known of the property’s inadequate drainage, the
prior flooding and the prospective probability of flooding and that they failed to design
and construct the house to protect it against the probable flooding. According to
Martinez and Gonzalez, a reasonably careful contractor would have raised the
foundation.
        The jury was instructed that a contractor is negligent if he or she fails to use the
level of skill and care that a reasonably careful contractor would use in similar
circumstances, i.e., the contractor’s acts fall below the standard of care. The jury was
further told that it must determine this applicable level of skill and care based only on
expert witness testimony. Based on this instruction and the evidence, the jury found the
Carreras were negligent and that this negligence was a substantial factor in causing harm
to Martinez and Gonzalez.
        Contrary to the trial court’s ruling, viewing the evidence in the light most
favorable to Martinez and Gonzalez, resolving all conflicts and drawing all inferences in

                                               9.
their favor, and deferring to the jury’s implicit credibility determinations, substantial
evidence supports the verdict.
       Although Hilario Carrera testified he did not know about the flooding problems
and could not tell by looking whether the area had previously flooded, conflicting
evidence was also presented. Martinez and Gonzalez’s neighbor, Kimberly Jaspar,
testified that during the construction of the house she told the builders about the lot
flooding. Neighbor Greg Sedain stated that he elevated his house because of flooding
and that this higher elevation was noticeable from across the street. Sedain also thought
that when Martinez and Gonzalez’s house was being built the foundation looked low
when compared to the street. Further, Martinez and Gonzalez’s expert, Paddock, testified
that there was a problem with the slope at the rear of the lot. Although Paddock is not an
engineer, he concluded that the slope problem was obvious enough to at least raise a
concern. From this evidence, the jury could reasonably infer that Hilario Carrera either
knew or should have known about the flooding problems.
       Hilario Carrera, testifying as an expert, gave his opinion regarding what a
contractor should do under these circumstances. He stated that if he had known of the
flooding, he would have raised the foundation. Carrera also acknowledged that the code
sets the minimum foundation height requirements. This opinion, along with the jury’s
implicit finding that Carrera knew or should have known of the flooding problem,
support the jury’s finding that the Carreras were negligent. Resolving all conflicts and
drawing all inferences in Martinez and Gonzalez’s favor, and deferring to the jury’s
implicit credibility determinations, there was substantial evidence to support the jury’s
verdict on the negligence cause of action. Accordingly, the trial court erred in granting
JNOV.
       c. Nonsuit was properly granted on the fraud and conspiracy causes of action.
       The elements of fraud that will give rise to a cause of action are: false
representation, concealment or nondisclosure; knowledge of falsity; intent to defraud, i.e.,

                                             10.
to induce reliance; justifiable reliance; and resulting damage. (Engalla v. Permanente
Medical Group, Inc. (1997) 15 Cal.4th 951, 974.) Fraud is an intentional tort. It is the
element of fraudulent intent, or intent to deceive, that distinguishes fraud from actionable
negligent misrepresentation. (City of Atascadero v. Merrill Lynch, Pierce, Fenner &
Smith, Inc. (1998) 68 Cal.App.4th 445, 482.)
       Fraudulent intent is a question of fact and must often be established by
circumstantial evidence. (Locke v. Warner Bros., Inc. (1997) 57 Cal.App.4th 354, 368.)
Nevertheless, here, there was no evidence that the Carreras intended to deceive Martinez
and Gonzalez. Martinez and Gonzalez contend that they should have been able to argue
to the jury that the Carreras intended to deceive them but they do not point to any
evidence to support such an argument.
       In any event, Martinez and Gonzalez were not prejudiced by the fraud claim being
taken away from the jury. In finding for the Carreras on Martinez and Gonzalez’s claim
for concealment, the jury found that “defendants Carrera Construction” did not intend to
deceive Martinez and Gonzalez by failing to disclose an important fact. It is thus
reasonable to conclude that the jury would have found no intent to deceive on the fraud
claim as well.
       Martinez and Gonzalez note that the finding on intent to deceive was limited to
Carrera Construction. It is most likely that the omission of Hilario and Claudia Carrera
on the special verdict form was an error. Nevertheless, the finding that Carrera
Construction did not intend to deceive Martinez and Gonzalez applies to Hilario and
Claudia Carrera as well. As the jury was instructed, the legal relationship between
respondents was such that if Hilario and Claudia Carrera were acting within the scope of
their employment, their actions were imputed to Carrera Construction. Accordingly, if
Carrera Construction did not intend to deceive Martinez and Gonzalez, Hilario and
Claudia Carrera did not intend to deceive Martinez and Gonzalez.



                                            11.
       Similarly, nonsuit was properly granted on the conspiracy to commit fraud claim.
Civil conspiracy requires the jury to find that two or more persons agreed to perform a
wrongful act. (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 784.) In addition to
the formation of the conspiracy, the wrongful act must occur resulting in damages.
(Mosier v. Southern Cal. Physicians Ins. Exchange (1998) 63 Cal.App.4th 1022, 1048.)
Because Martinez and Gonzalez failed to present sufficient evidence of the underlying
fraud claim, their conspiracy to commit fraud claim falls as well.
       d. The award of attorney fees to the Carreras must be reversed.
       The trial court awarded the Carreras attorney fees as the prevailing parties under
the purchase agreement entered into between Martinez and Gonzalez and the Carreras.
This agreement provides “In any action, proceeding or arbitration between Buyer and
Seller arising out of this Agreement, the prevailing Buyer or Seller may be entitled to
reasonable attorney fees and costs .…”
       It is well established that an attorney fee provision such as this permits recovery of
fees incurred in prosecuting or defending tort claims that arise out of the agreement. The
provision is phrased broadly enough to support an award of attorney fees to the prevailing
party in an action alleging both contract and tort claims. (Santisas v. Goodin (1998) 17
Cal.4th 599, 608.)
       Here, both the tort and the breach of contract claims arose out of the purchase
agreement. Martinez and Gonzalez alleged that the Carreras breached the purchase
agreement by failing to disclose that the property would flood and by failing to properly
design and construct and grade the property. The negligence claim was based on the
same failure to disclose and to properly design and construct and grade the property.
Accordingly, with the reversal of the grant of JNOV on the negligence claim, the
Carreras are no longer the prevailing parties under the agreement. Therefore, the attorney
fee award must be reversed.



                                            12.
2.     The City’s appeal.
       The City contends the trial court prejudicially erred when it permitted Martinez
and Gonzalez’s expert, John Squier, to testify that the City had been negligent in
maintaining the storm drains and in not adequately deploying its emergency response
personnel during the 2006 storm. According to the City, this evidence was inadmissible
because these opinions were based on facts that were not set forth in the written claims
filed by Martinez and Gonzalez.
       Before suing a public entity, a plaintiff must submit a timely written claim for
damages to that entity. (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 208.)
This is not merely a procedural requirement but, rather, is a condition precedent to
maintaining the action. (Id. at p. 209.)
       Government Code section 910 sets forth the required contents of a claim. These
requirements include showing “[t]he date, place and other circumstances of the
occurrence or transaction which gave rise to the claim asserted.” (Gov. Code, § 910,
subd. (c).)
       The purpose of requiring a claim is “‘to provide the public entity sufficient
information to enable it to adequately investigate claims and to settle them, if appropriate,
without the expense of litigation.’” (Stockett v. Association of Cal. Water Agencies Joint
Powers Ins. Authority (2004) 34 Cal.4th 441, 446 (Stockett).) Accordingly, while a claim
need not contain the detail and specificity required of a pleading, it nevertheless must
“fairly describe what that entity is alleged to have done.” (Shoemaker v. Myers (1992) 2
Cal.App.4th 1407, 1426.) “A theory of recovery not included in the claim may not
thereafter be maintained.” (Ibid.) The factual basis for recovery in the complaint must
be fairly reflected in the written claim. (Turner v. State of California (1991) 232
Cal.App.3d 883, 888 (Turner).) Where there is a complete shift in allegations, such as an
effort to premise civil liability on acts or omissions committed at different times or by



                                            13.
different persons than those described in the claim, the cause of action fails. (Blair v.
Superior Court (1990) 218 Cal.App.3d 221, 226 (Blair).)
       Opinions addressing the discrepancies between the contents of the tort claim and
the allegations in the complaint in various contexts fall into one of two lines of cases. A
number of cases have barred claims that assert theories of liability based on facts that are
not fairly reflected in the written claim. Other cases have allowed causes of action that
vary from the claim so long as the complaint is predicated on the same fundamental facts
as those in the claim. The latter cases include Smith v. County of Los Angeles (1989) 214
Cal.App.3d 266 (Smith); White v. Superior Court (1990) 225 Cal.App.3d 1505 (White);
Blair, supra, 218 Cal.App.3d 221; and Stockett, supra, 34 Cal.4th 441.
       In Smith, the plaintiff homeowners filed tort claims against Los Angeles County
alleging that the County had “‘cut into the hill’” to construct a road and that this cut had
created a landslide danger by removing support. (Smith, supra, 214 Cal.App.3d at p.
273.) In their complaint, the plaintiffs further alleged that, in removing the stabilizing
slide debris from the roadway and in permitting further construction of homes, the
County reactivated the landslide. (Id. at p. 274.)
       The Smith court held that these additional allegations were not based on facts
entirely different from those in the tort claims but, rather, were fairly reflected in the
claims. The claims alleged that the construction of the road caused the landslide that
destroyed the plaintiffs’ homes. The court concluded that the assertions at trial regarding
the clearing of slide debris from the roadway and the presence of water runoff over the
roadway were matters closely connected with the construction of the road. (Smith, supra,
214 Cal.App.3d at p. 280.)
       Similarly in White, the court found the complaint was “predicated on the same
fundamental facts” as the tort claim. (White, supra, 225 Cal.App.3d at p. 1511.) There,
the plaintiff filed a claim with a city stating a police officer had falsely arrested her and
beaten her. The plaintiff’s complaint included causes of action for negligent hiring,

                                              14.
training and retention and intentional failure to train, supervise, and discipline. (Id. at p.
1507.) The court rejected the city’s argument that these causes of action were not fairly
reflected in the claim finding that both the claim and the complaint were based on the
same fundamental facts, i.e., the officer’s alleged mistreatment of the plaintiff. (Id. at p.
1511.)
         The court in Blair reached a like conclusion. In Blair, the claim alleged the
plaintiff was injured when the pickup he was riding in went out of control on an icy road
that the defendant had negligently constructed and had failed to maintain and sand.
(Blair, supra, 218 Cal.App.3d at p. 223.) The complaint included allegations relating to
the lack of guard rails and warning signs and the slope of the road. (Id. at p. 224.) The
court concluded the claim was sufficient to support the complaint because both were
“premised on essentially the same foundation, that because of its negligent construction
or maintenance, the highway at the scene of the accident constituted a dangerous
condition of public property.” (Id. at p. 226.)
         In Stockett, the California Supreme Court considered whether a wrongful
termination claim supported the subsequent complaint. The plaintiff’s claim alleged he
was wrongfully terminated by a public agency for supporting another employee’s sexual
harassment complaints. The claim identified the instigator of the termination and stated
the date on which the termination occurred. The complaint alleged the plaintiff had been
terminated in violation of public policy on three specific grounds, including opposing
sexual harassment in the workplace. (Stockett, supra, 34 Cal.4th at p. 444.)
         The Stockett court concluded the claim adequately informed the agency of the
nature of the claim. The court explained “A complaint’s fuller exposition of the factual
basis beyond that given in the claim is not fatal, so long as the complaint is not based on
an ‘entirely different set of facts.’ [Citation.] Only where there has been a ‘complete
shift in allegations, usually involving an effort to premise civil liability on acts or
omissions committed at different times or by different persons than those described in the

                                              15.
claim’ have courts generally found the complaint barred.” (Stockett, supra, 34 Cal.4th at
p. 447.) Stockett’s additional theories were based on the same fundamental facts set forth
in the claim and thus provided sufficient information for the public agency to conduct an
investigation into the merits of the wrongful termination claim. (Id. at p. 450.)
       In contrast, where the complaint alleges liability on an entirely different factual
basis than the claim, courts have consistently held the action is barred. For example, in
Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d 431 (Fall
River), the plaintiff was injured at school when a steel door struck his head. Plaintiff’s
tort claim stated the injury was caused by the school’s negligent maintenance of the
school premises. However, the complaint additionally alleged that school personnel
negligently failed to supervise students who were engaged in “‘dangerous horse-play.’”
(Id. at p. 434.) The court held that this additional cause of action was barred because the
factual divergence between the claim and the complaint was too great. Despite the
causes of action having arisen at the same time, the plaintiff was nevertheless attempting
to premise liability upon a set of facts that was entirely different from those set forth in
the tort claim. (Id. at p. 435.)
       Similarly, in Donohue v. State of California (1986) 178 Cal.App.3d 795
(Donohue), the court held the factual basis for recovery alleged in the complaint was not
reflected in the plaintiff’s tort claim where the claim asserted the Department of Motor
Vehicles negligently allowed an uninsured motorist to take a driving test and the
complaint alleged that the department negligently supervised and instructed the driver
during the exam. (Id. at p. 804.) And in Turner, the plaintiff, who was shot in a state
owned parking lot, was barred from alleging a cause of action based on a claim of
inadequate lighting when the tort claim was based solely upon a failure to provide
adequate security. (Turner, supra, 232 Cal.App.3d at pp. 887-888, 891.)
       The situation here is analogous to the Fall River/Donohue/Turner line of cases.
The tort claim alleged that the City was negligent in that it “approved construction of

                                             16.
streets, subdivision, and the residence/house at 3518 Virginia Avenue, in Riverbank,
California. Said construction and/or subdivision planning/design did not provide proper
leveling and/or drainage.” This allegedly negligent approval of a construction plan that
did not provide for proper leveling and drainage concerned acts that occurred no later
than when the home was built in 2004. In fact, the subdivision planning, street
construction and storm drain design at issue took place many years before. However, to
prove their claims against the City at trial, Martinez and Gonzalez relied on Squier’s
expert testimony regarding the City’s later acts of negligently maintaining the storm
drains and inadequately responding to the April 2006 storm event. Squier had no opinion
on the design of the storm drains.
       Negligence based on storm drain maintenance and emergency flood response is a
complete shift from the allegations in the tort claim. The omissions testified to by Squier,
i.e., that the City failed to keep storm drain maintenance records and to proactively
respond to the storm on April 14, 2006, were committed at different times from the acts
of construction, planning, design and approval set forth in the claim. Squier’s testimony
does not merely elaborate or add further detail to the allegations that the City negligently
planned, designed, approved and constructed a subdivision and storm drain system in and
before 2004. His testimony presents a separate theory of liability. Approval of the
design and construction of the storm drain system and the house on or before 2004 is not
synonymous with maintaining that storm drain system and responding to a flood in 2006.
Thus, Squier’s testimony and the tort claim were not predicated on the same fundamental
facts. Accordingly, the trial court erred in admitting this evidence.
       Martinez and Gonzalez assert that “a huge swath of evidence” was presented that
proved the City showed a lack of due care in evaluating the planning and approval of the
Virginia Street storm drain system. Therefore, Martinez and Gonzalez argue, the verdict
is supported by substantial evidence.



                                            17.
       However, through Squier’s testimony, Martinez and Gonzalez asserted additional
theories of recovery, i.e., that the City negligently maintained the storm drains and that
the City inadequately responded to the storm event. Each theory of recovery must have
been reflected in a timely tort claim. (Hata v. Los Angeles County Harbor/UCLA
Medical Center (1995) 31 Cal.App.4th 1791, 1808.) Thus, proof of one theory at trial
will not cure defects in the claim.
       Martinez and Gonzalez further contend that the City was not prejudiced by the
alleged shortcomings of their tort claims because the City learned of the negligent
maintenance theory when Martinez and Gonzalez filed their complaint. Nevertheless, the
claims statutes must be satisfied even in the face of the public entity’s actual knowledge
of the circumstances surrounding the claim. “‘[T]he purpose of the claims statutes is not
to prevent surprise, but “to provide the public entity sufficient information to enable it to
adequately investigate claims and to settle them, if appropriate, without the expense of
litigation.”’” (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 991.)
       Although Squier’s opinions that the City negligently maintained the storm drains
and inadequately responded to the April 2006 storm were improperly admitted, such
errors do not require reversal unless they were prejudicial. “[T]rial error is usually
deemed harmless in California unless there is a ‘reasonabl[e] probab[ility]’ that it
affected the verdict.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704,
715.) “‘[P]robability’ in this context does not mean more likely than not, but merely a
reasonable chance, more than an abstract possibility.” (Ibid.)
       Here, Martinez and Gonzalez relied primarily on Squier’s testimony to prove the
City was negligent. This testimony focused almost exclusively on the alleged negligent
maintenance of the storm drains and the City’s response to the storm. In fact, Squier
specifically stated that he had no opinion on the design of the storm drain on Virginia
Avenue. Under these circumstances, it must be concluded there is a reasonable chance



                                             18.
that Squier’s testimony affected the verdict in favor of Martinez and Gonzalez and
against the City. Accordingly, that verdict must be reversed.
                                      DISPOSITION
       The order granting the Carreras’ motion for judgment notwithstanding the verdict
on the negligence cause of action is reversed and the verdict is reinstated. The order
awarding the Carreras attorney fees is reversed. The verdict in favor of Martinez and
Gonzalez on their cause of action for creating and maintaining a dangerous condition of
public property against the City is reversed. In all other respects, the judgment is
affirmed. The City is awarded its costs on appeal. Martinez and Gonzalez and the
Carreras shall bear their own costs on appeal.

                                                                 _____________________
                                                                       LEVY, Acting P.J.
WE CONCUR:


 _____________________
DETJEN, J.


 _____________________
PEÑA, J.




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