Ronald W. Komers Trust v. County of Riverside CA4/2 (2016) · DecisionDepot
Ronald W. Komers Trust v. County of Riverside CA4/2
California Court of Appeal May 16, 2016 No. E063550Unpublished
Filed 5/16/16 Ronald W. Komers Trust v. County of Riverside CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
RONALD W. KOMERS TRUST,
Plaintiff and Appellant, E063550
v. (Super.Ct.No. RIC1314390)
COUNTY OF RIVERSIDE, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. John W. Vineyard, Judge.
Affirmed.
Hubbard Law Firm, David F. Hubbard and Mordecai Eli Underwood for Plaintiff
and Appellant.
Lewis Brisbois Bisgaard & Smith, Arthur K. Cunningham; Arias & Lockwood
and Christopher D. Lockwood for Defendant and Respondent.
Plaintiff and appellant Ronald W. Komers Trust (Komers) appeals the grant of
defendant and respondent County of Riverside’s (County) motion for determination of
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liability filed pursuant to Code of Civil Procedure section 1260.040 (Motion).1 Komers’s
property was damaged as a result of a County employee conducting weed abatement next
to a County road. The employee used a mower attached to a County-owned tractor. The
“To be subject to liability in inverse condemnation, the governmental action at
issue must relate to the ‘public use’ element of article I, section 19. ‘Public use’ is the
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threshold requirement. [Citation.] ‘The destruction or damaging of property is
sufficiently connected with “public use” as required by the Constitution, if the injury is a
result of dangers inherent in the construction of the public improvement as distinguished
from dangers arising from the negligent operation of the improvement.’ [Citation.] A
public entity’s maintenance of a public improvement constitutes the constitutionally
required public use so long as it is the entity’s deliberate act to undertake the particular
plan or manner of maintenance.” (Arreola v. County of Monterey (2002) 99 Cal.App.4th
722, 742 (Arreola).) “Unlike negligence, however, inverse condemnation does not
require any breach of a standard of care, nor foreseeability of the harm. Thus any actual
physical injury to real property proximately caused by a public improvement as
deliberately designed and constructed is compensable under article I, section 19 of the
California Constitution whether or not the injury was foreseeable.” (Aetna Life &
Casualty Co. v. City of Los Angeles (1985) 170 Cal.App.3d 865, 873.)
All that is required is a deliberate act by a public entity, which has as its object the
direct or indirect accomplishment of the purpose for which the improvement was
constructed and which causes a taking or damaging of private property. (Bauer, supra,
45 Cal.2d at p. 285.) The property owner has the burden of establishing that the public
entity has, in fact, taken or damaged his or her property. (San Diego Gas Electric Co. v.
Superior Court (1996) 13 Cal.4th 893, 940.)
Here, the trial court relied on Bauer, supra, 45 Cal.2d 276, and Paterno, supra, 74
Cal.App.4th 68. “In Bauer, a drainage ditch ran along the downhill border of the
plaintiffs’ property. As originally constructed, any overflow from the ditch would have
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run downhill and away from the plaintiffs’ property. As time went on, the downhill side
of the ditch was built up higher and higher with dirt and debris so that when the ditch
later overflowed, it flooded the plaintiffs’ land. The county argued that the change in the
ditch was a result of its maintenance and negligent maintenance was not the ‘public use’
to which inverse condemnation liability would attach.” (Arreola, supra, 99 Cal.App.4th
at pp. 742-743.) The Supreme Court disagreed, explaining: “‘The rather obscure line
between the concepts of “construction” and “maintenance” is disclosed by any attempt to
define them in mutually exclusive terms and to characterize the raising of a bank of an
existing ditch as one or the other. If the “maintenance” consists of an alteration of the
ditch by raising one of the banks, then in a material sense “maintenance” becomes a
species of “construction.” Had the bank been raised during the original construction it
would have been part of the over-all project and hence within the rule. . . . The
defendants’ argument that damage from maintenance is beyond the purview of [article I,]
section [19] invites an artificial distinction which would turn simply upon the passage of
time between the original construction and the subsequent alteration and must therefore
be rejected.’” (Id. at p. 743.) Bauer made it clear that “the taking or damaging of private
property for the maintenance of an existing public improvement involving a deliberate act
which has as it object the direct or indirect accomplishment of the purpose of the
improvement as a whole constitutes a taking or damaging of property for a public use and
the owner of such property is entitled to compensation.” (Bauer, at p. 285.)
Paterno, supra, 74 Cal.App.4th 68 was an appeal from a judgment for the plaintiff
on an inverse condemnation claim arising from a broken levee. The Paterno court stated
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as to the claim by the plaintiff, “In the case of alleged shoddy maintenance, as here, it is
the plan of maintenance which must be unreasonable to establish a taking. Poor
execution of a maintenance plan does not result in a taking.” (Id. at p. 87.) The Paterno
court held that the trial court’s statement of decision was deficient because it based
liability “almost entirely on the violation of standards for levee maintenance, in other
words, departures from the lawful plan, rather than on an unreasonable plan.” (Id. at p.
90.)
This case is similar to Tilton v. Reclamation District No. 800 (2006) 142
Cal.App.4th 848. There, another case involving the failure of a levee, the plaintiff in the
complaint alleged that the defendant was responsible for the maintenance of the levee, the
failure of the levee was due to the defendant maintaining the levee in a manner such that
it was too steep for underwater conditions, and defendants substantially participated in
the maintenance of the levee upon which plaintiff’s property was located and such
participation was for the use and/or benefit of the public. (Id. at p. 859.) The court
concluded after reviewing several cases that, “although there may be liability in inverse
condemnation where levee failures are integrally connected with a flawed plan for those
levees and/or flawed construction, there is no such liability where similar failures are the
result of negligent or inadequate operation and maintenance.” (Id. at p. 858, fn. omitted.)
The Tilton court criticized the plaintiff for never alleging that the maintenance plan was
defective. As such, the court concluded, “[t]hese allegations do not meet the test we
derive from the precedents just discussed, i.e., that garden variety inadequate
maintenance, as distinguished from a faulty plan involving the design, construction and
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maintenance of a levee, is not an adequate basis for an inverse condemnation claim.” (Id.
at p. 859.)
Here, what was missing from the Complaint and opposition by Komers, was
evidence of “deliberateness,” or in other words, a faulty plan of maintenance for weed
abatement. Komers only made conclusory allegations in the Complaint and in its
opposition that the plan to mow the weeds with the tractor was “inherently risky.”
However, Komers never alleged what County’s plan for weed abatement consisted of, or
how such a plan was defective. There was nothing presented that this type of weed
abatement was not to be performed during fire season, or that County was aware that
such plan was improper but proceeded with the plan regardless of the risk. Moreover, the
California Department of Forestry and Fire Protection report stated nothing about the
defectiveness of County’s plan for weed abatement.
Moreover, absolutely no evidence was presented as to why the two fire
extinguishers were on the tractor. In fact, the evidence established they were not the right
type to extinguish a fire like the one that occurred in this case. Komers provided nothing
to the trial court that could establish the plan of weed abatement—which was clearly
maintenance—was somehow defective as required in order to find liability under inverse
condemnation. If County decided not to engage in weed abatement at all, would not the
risk of fire danger increase? Moreover, this court would merely engage in speculation as
to what other method of weed abatement should have been used. Simply put, there was
no proper allegation or evidence supporting that the weed abatement plan devised by
County was defective. As such, there was no inverse condemnation claim.
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This case differs from Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th
596. In that case, a facility owned by the plaintiff sustained substantial damage when a
corroded cast-iron water pipe servicing a fire hydrant burst; the pipe was owned by the
defendant. The appellate court found that the defendant was aware prior to the pipe
bursting that all of its cast-iron pipes needed to be replaced, but had no program or
method for identifying those in need of immediate replacement. (Id. at pp. 599-600.)
The Pacific Bell court found that the deliberateness required for inverse condemnation
liability was satisfied by a finding that the public improvement, as designed, constructed
and maintained, presented an inherent risk of danger to private property and the inherent
risk materialized and caused damage. (Id. at p. 607.) The court found that the defendant
chose to install the water pipes but provided no method of maintenance. The defendant
could have incurred the cost in advance by monitoring and replacing the system before a
failure caused damage. When it chose not to do so, article I, section 19 required that the
cost be absorbed by the taxpayers as a whole, and not by the individual landowner. (Id.
at pp. 607-608.) Here, there was no showing, as in Pacific Bell, of a defective plan.
The cases involving inverse condemnation liability due to downed power lines
starting a fire are easily distinguishable. Here, the public improvement was parkland.
The cause of the fire was maintenance on the land, not the park itself. In Marshall,
supra, 219 Cal.App.3d 1124, the Los Angeles City Department of Water and Power had
constructed a series of power polls to provide electricity to customers in Los Angeles.
The trial court concluded the power polls were a “public improvement.” (Id. at p. 1130.)
On a “windy, very dry and hot” day, the power lines fell and sparked a fire. (Id. at p.
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1131.) The trial court concluded the cause of the fire was determined to be the downed
power lines. (Id. at p. 1133.) The appellate court concluded substantial evidence
supported the trial court’s determination. (Id. at p. 1141.) The evidence clearly
established that the power lines, a public improvement, deliberately caused the fire,
unlike this case, which involved maintenance on the property.
Aetna Life & Casualty Co. v. City of Los Angeles, supra, 170 Cal.App.3d 865, also
involved a fire that was started by downed power lines. (Id. at p. 872.) The court held,
“[A]ny actual physical injury to real property proximately caused by a public
improvement as deliberately designed and constructed is compensable under article I,
section 19 of the California Constitution whether or not the injury was foreseeable.
[Citation.] It is not necessary that government’s liability be based on negligence as long
as there is a causal relationship between government’s act or omission and the loss.
[Citation.] All that is required is a deliberate act by a public entity which has as its object
the direct or indirect accomplishment of the purpose for which the improvement was
constructed and which causes a taking or damaging of private property.” (Id. at pp. 873-
874.) The court concluded that the deliberate design of the power lines caused the fire.
(Id. at p. 874.) Here, there was no showing that a public improvement directly caused the
fire but rather liability was based on a defective maintenance plan.
The recent case of Gutierrez v. County of San Bernardino (2011) 198 Cal.App.4th
831 is also instructive. In that case, the county installed K-rails to help with flood control
but the plaintiff’s property was damaged by a flood. The court found that the installation
of the K-rails was a public improvement. It further found that causation was established
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and the plaintiffs suffered damage. (Id. at p. 844.) The plaintiffs argued that the county
should be held strictly liable for the damages caused by the installation of the K-rails.
(Id. at p. 845.) The appellate court disagreed. It found that the proper standard for
imposing liability was reasonableness. It concluded strict liability would discourage
construction of needed public improvements if the county was held liable just for
installing the K-rails. If the county was strictly liable, it would not seek to make such
improvements. (Id. at pp. 847-848.) “As a matter of ‘public policy and common sense’
[citation], some protective action (even if it should ultimately be insufficient) should not
be discouraged.” (Id. at p. 848.)
The Gutierrez court then set forth the test for reasonableness. It found,
“Considerations in determining the reasonableness of the conduct in light of the
underlying constitutional right that a property owner contribute no more than his share to
the public undertaking are: ‘(1) The overall public purpose being served by the
improvement project; (2) the degree to which the plaintiff’s loss is offset by reciprocal
benefits; (3) the availability to the public entity of feasible alternatives with lower risks;
(4) the severity of the plaintiff’s damage in relation to risk-bearing capabilities; (5) the
extent to which damage of the kind the plaintiff sustained is generally considered as a
normal risk of land ownership; and (6) the degree to which similar damage is distributed
at large over other beneficiaries of the project or is peculiar only to the plaintiff.’”
(Gutierrez, supra, 198 Cal.App.4th at p. 848.)
Again, what is missing from this case is an “unreasonable plan of maintenance.”
(Arreola, supra, 99 Cal.App.4th at p. 747.) County could have chosen not to
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conduct weed abatement, which certainly would increase the risk of fire. Since Komers
failed to demonstrate, other than by conclusory allegations, that the weed abatement
maintenance plan was unreasonable, “the trial court properly dismissed their cause of
action for inverse condemnation.” (Dina, supra, 151 Cal.App.4th at pp. 1051-1052.)
DISPOSITION
The judgment of the trial court is affirmed. Respondent is awarded its costs on
appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the County was not liable for inverse condemnation because the fire resulted from routine maintenance rather than a defective public improvement plan, and the plaintiff failed to prove the maintenance plan itself was unreasonable.
Issues
Whether a fire caused by a County employee's routine weed abatement constitutes a compensable taking under inverse condemnation.
Whether the plaintiff met the burden of proving that the County's maintenance plan was inherently defective or unreasonable.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“Poor execution of a maintenance plan does not result in a taking.”
“The destruction or damaging of property is sufficiently connected with “public use” as required by the Constitution, if the injury is a result of dangers inherent in the construction of the public improvement as distinguished from dangers arising from the negligent operation of the improvement.”
“Komers only made conclusory allegations in the Complaint and in its opposition that the plan to mow the weeds with the tractor was “inherently risky.””