BRIAN AIKENS v. COUNTY OF VENTURA

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Court of Appeal, Second District, California.

BRIAN AIKENS, et al., Plaintiffs, Respondents and Cross–Appellants, v. COUNTY OF VENTURA, et al., Defendants, Appellants and Cross–Respondents.

2d Civil No. B221992

-- July 19, 2011

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Homeowners brought an action against local governmental entities for inverse condemnation, continuing public nuisance, and continuing dangerous condition of public property.1  The governmental entities are the County of Ventura (the County) and the Ventura County Watershed Protection District (the District).   The County and the District are hereafter collectively referred to as appellants.   The trial court found in Homerowners' favor on the inverse condemnation cause of action.   It granted appellants' motion for summary adjudication on the nuisance and dangerous condition causes of action.   As to these two tort causes of action, the court concluded that appellants had established the affirmative defense of design immunity and that respondents had not raised a triable issue concerning the loss of immunity.

Appellants contend that the trial court erroneously admitted two reports, that it was biased in favor of and became an advocate for Homeowners, and that it engaged in misconduct.   Homeowners cross-appealed, raising a number of issues.   We affirm the judgment in its entirety.

Factual and Procedural Background 2

Homeowners are the owners of homes built at the top of the Monte Vista Bluff in Ventura County.   The Bluff is 70 to 90 feet high and is located along the eastern bank of the Ventura River.   The Bluff is directly opposite the Live Oak Acres Subdivision, which lies to the west of the Ventura River.   To protect Live Oak Acres from flooding, the District constructed a levee and a dike.   An expert opined that these two flood control projects had “redirected the flow of the Ventura River toward the Monte Vista bluff.”

In 1974 the County “rebuilt, extended and reinforced” a bridge at Santa Ana Boulevard.   The bridge was not a flood control project.   An expert opined that the 1974 bridge project had “double[d] the impact of the force of the water against the [Monte Vista] bluff.”

In 2000 the District completed the Live Oak Creek Diversion Project, which was a flood control project.   The project diverted surface waters that had normally flowed into the Ventura River downstream from the Monte Vista Bluff.   The diversion channeled the surface waters into the Ventura River upstream from the Monte Vista Bluff, increasing river flow along the bluff.

During a storm in January 2005, Ventura River floodwaters damaged the base of the Monte Vista Bluff.   An expert testified:  “[T]he 2005 event ․ removed from 10' [to] 30' of subjacent support across the base of the Monte Vista bluff.   Because of the undercutting of the toe, ․ the entire bluff will now continue to landslide periodically until the bluff reaches its appropriate angle of ‘repose.’  “ (Underscoring and fn. omitted.)   The erosion adversely affectedHomeowners.   For example:  “The ‘gradual’ slope supporting the residence of ․ homeowner John Morgan was sheared away fifteen or twenty feet to a vertical cliff.”

In February 2006 Homeowners filed a complaint against appellants.   The operative first amended complaint (the complaint) alleged three causes of action:  inverse condemnation, continuing public nuisance, and continuing dangerous condition of public property.   According to the complaint, appellants' “projects acted to divert the Ventura River from its natural course and cause[d] the erosion and destablilization of the bluff at the interface of [Homeowners'] properties and the Ventura River.”

As to the first cause of action for inverse condemnation, the issue of liability was tried by the court without a jury.   The court found that appellants' four projects (the levee, the dike, the 1974 bridge, and the Live Oak Creek diversion) had been “substantial concurring causes” of the 2005 injury to Homeowners' properties.   The court explained:  “[Homeowners] established by a preponderance of the evidence that the 2005 storm would not alone have undermined the toe of the 38,000 year-old-bluff absent [appellants'] improvements pinning the course of the Ventura River to the bluff side of the channel and increasing its velocity/scour․”  The court noted that the damaged portions of the bluff “had withstood presumably calamitous natural events over the last 38,000 years and remained intact[ ] until the severe but not extraordinary 2005 flood event.”   Thus, the court said:  “[T]he County [is] severally liable for one-half of the 2005 damages incurred by [Homeowners], and [the District] severally liable for the remaining one-half of the 2005 damages incurred by [Homeowners].”

Concurrently with the trial of the issue of liability on the inverse condemnation cause of action, the court also tried the issue of appellants' affirmative defense of design immunity on the tort causes of action for continuing public nuisance and continuing dangerous condition of public property.   The court concluded that appellants “may claim design immunity defense on each of the challenged projects.”   But the court noted that, once acquired, design immunity may be lost.   The court did not decide whether appellants had lost their design immunity.   The court, generally speaking, observed that “[t]his ․ is a jury question.”  (See infra pp. 13–14.)

Appellants subsequently moved for summary adjudication on both of the tort causes of action.   Appellants argued that there were no triable issues as to whether they had lost their design immunity and that they were entitled to summary adjudication as a matter of law.   The court granted the motion.

A jury tried the remaining issue of damages for inverse condemnation.   The jury returned a special verdict awarding Homeowners damages totaling $2,368,125.   The court awarded Homeowners attorney fees of $1,168,750, plus costs and expert witness fees of $155,000, plus prejudgment interest of $447,687.76 through December 1, 2009.

APPELLANTS' APPEAL

Admission of Environmental Impact Report

At the request of the District, in 1998 Impact Sciences, Inc., prepared an Environmental Impact Report (EIR) for the Live Oak Creek Diversion Project.   During discovery, Homeowners requested the EIR, but appellants produced only a portion of the EIR entitled “Project Description.”   On its own motion and over appellants' objection, the court ordered appellants to produce the entire EIR and, upon its production, received it in evidence as the court's exhibit 2. Before receiving the EIR, the court asked:  “[O]ther than the fact that [Homeowners] didn't raise it and didn't ask for it and didn't offer it, never got it, ․ the objection to receiving this would be what from the defense?”   Appellants' counsel responded, “It really depends on how the report is utilized.”   Counsel later stated:  “[T]he other objection I would make is that ․ you need an expert to determine really if what is being talked about in the report has any impact on the damage [Homeowners] allege.”

Appellants argue that due process was violated because “the trial court's actions in essentially ordering additional discovery not pursued by [Homeowners] prior to trial, and then on its own admitting and considering it without benefit of orderly presentation at trial nor foundational testimony, crossed the line between neutral arbiter and advocate and resulted in manifest procedural unfairness.”  “However well intentioned, this conduct evidences bias, or at least would appear so to a reasonable person.”

Appellants further argue that the EIR provided evidence of a fact that was “critical” to the trial court's finding that appellants' projects were a proximate cause of the undermining of the Monte Vista Bluff.   The critical fact was “that the water diverted by reason of [appellants'] various projects was in an amount that would have made a difference in terms of eroding the base of the bluff.”   According to appellants, the statement in the EIR concerning the amount of water diverted was inadmissible hearsay.  “Because this evidence was critical to [Homeowners'] case and should not have been admitted, let alone considered, the proper course would be to order judgment for [appellants] based upon [Homeowners'] failure to establish a crucial element of their case, or alternatively to at least grant a new trial on inverse condemnation.”

The hearsay issue is forfeited because appellants failed to object on hearsay grounds in the trial court.  (Evid.Code § 353, subd. (a);  People v. Cadogan (2009) 173 Cal.App.4th 1502, 1515.)  (8RT 1295–1303) Appellants did not dispute the court's characterization of the EIR as “an admission.”   (Evid.Code, §§ 1220, 1221.)

Appellants did not preserve their claim of judicial bias for review because they did not raise the issue in the trial court.  (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1218;  accord, People v. Seaton (2001) 26 Cal.4th 598, 698.)

“ ‘Generally, where bias and prejudice against a trial judge is claimed, the issue must be raised when the facts first become known, and in any event, before the matter is submitted for decision․  “ A party should not be allowed to gamble on a favorable decision and then raise such an objection in the event he is disappointed in the result.”  ‘ [Citation.]”  (People v. Tappan (1968) 266 Cal.App.2d 812, 817;  see also People v. Guerra (2006) 37 Cal.4th 1067, 1112 [“defendant's willingness to let the entire trial pass without another charge of bias against the judge not only forfeits his claims on appeal but also strongly suggests they are without merit”].)

In any event, the trial court did not violate due process by ordering appellants to produce the EIR and by receiving it in evidence on the court's own motion.  “[T]he United State Supreme Court's due process case law focuses on actual bias.   This does not mean that actual bias must be proven to establish a due process violation.   Rather, consistent with its concern that due process guarantees an impartial adjudicator, the court has focused on those circumstances where, even if actual bias is not demonstrated, the probability of bias on the part of a judge is so great as to become ‘ “constitutionally intolerable.”  ‘ [Citation.]  The standard is an objective one.”  (People v. Freeman (2010) 47 Cal.4th 993, 1001.)

This is not a case where the facts are so extreme that “ ‘the probability of actual bias rises to an unconstitutional level.’  [Citation.]”  (People v. Freeman, supra, 47 Cal.4th at p. 1001.)   The trial court was exercising its right to bring out the relevant facts.  “[A] judge is not a mere umpire presiding over a contest of wits between professional opponents, but a judicial officer entrusted with the grave task of determining where justice lies under the law and the facts between the parties who have sought the protection of our courts.   Within reasonable limits, it is not only the right but the duty of a trial judge to clearly bring out the facts so that the important functions of his office may be fairly and justly performed.  [Citations.]  For the same reason the trial judge is not to be unduly or unreasonably hampered in his control and conduct of the trial.  [Citation.]”  (In re Dupont's Estate (1943) 60 Cal.App.2d 276, 290;  accord, People v. Carlucci (1979) 23 Cal.3d 249, 256.)

Even if the trial court had erroneously received the EIR, the error would not have been reversible because it would not have prejudiced appellants.3  (Evid.Code, § 353, subd. (b).)  The purported “critical fact” provided by the EIR is found in footnote 25 of the court's single-spaced, 17–page statement of decision.   The “critical fact” is that the Live Oak Creek Diversion Project would increase “river flow in the area of the Monte Vista bluff [by] 751 cfs [cubic feet per second] during a 50–year flow and 807 cfs during a 100–year flow.”   Appellants have not shown that these figures materially influenced the court's decision.   They have not cited any evidence suggesting that the 2005 storm caused a river flow that is likely to occur only once in 50 or 100 years.   In its statement of decision, the court noted that Dr. Larry Gurrola, Homeowners' expert, had opined that the 2005 storm “was not a particularly extraordinary storm event.”   Another of Homeowners' experts, Dr. Hugo Loaiciga, testified that, based on estimates provided by appellants' expert, Dr. Howard Chang, the 2005 storm was “slightly less than a 20–year event.”

Furthermore, to impose liability on appellants, it was not necessary to quantify in cubic feet per second the extent to which the Live Oak Creek Diversion Project had increased river flow along the Monte Vista Bluff.   The court made no such quantification.   The court merely found that, by “redirecting flows ․ just upstream from the Monte Vista bluff,” the project had “add[ed] to the localized floodwater flow, velocity, sedimentation and scour.”   It should be emphasized that the Live Oak Creek Diversion Project was just one of four concurring causes of the injury to Homeowners' properties.   The other three concurring causes were the levee, the dike and the 1974 bridge project.

Moreover, the river flow figures in the EIR were arguably beneficial to appellants.   It was in appellants' interest to show minimal increased river flow from the Live Oak Creek Diversion Project.   The river flow figures in the EIR were less than the estimate of appellants' expert, Dr. Chang, who opined that the project had increased river flow by approximately 1,000 cfs.   In their reply brief, appellants assert that “the conclusions in Exhibit 2 [the EIR] actually supported [appellants'] position that any additional flow into the Ventura River caused by the Live Oak Creek Diversion was less than significant․”

Finally, the 50 and 100–year river flow figures are set forth at page three of Homeowners' Exhibit 33, which was received in evidence.   Exhibit 33 is the portion of the EIR entitled “Project Description” that appellants provided to Homeowners during discovery.   Thus, even if the entire EIR had not been received in evidence as the court's exhibit 2, the river flow figures would still have been available to the court through Homeowners' exhibit 33.

Admission of Report of Bureau of Reclamation

Appellants contend that the trial court erroneously relied on Homeowners' exhibit 94, a hydrology, hydraulics, and sedimentation study prepared in 2007 by the Denver Technical Service Center, Bureau of Reclamation, United States Department of the Interior.   The purpose of the study was “to support the design and/or improvements of two levees located along the Ventura River” that were being constructed “as part of the Matilija Dam Ecosystem Restoration Project to mitigate flood impacts from the project.”   Appellants maintain that exhibit 94 is inadmissible hearsay.

Appellants initially objected on hearsay grounds to Homeowners' questioning of an expert witness about exhibit 94.   The objection was overruled.   Later in the trial, appellants objected again on hearsay grounds.   The trial court responded that it would not “consider it [exhibit 94] for the truth of the matter asserted.”   At the conclusion of the trial, when Homeowners requested that exhibit 94 be received in evidence, the court asked appellants' counsel to specify the matter in exhibit 94 to which he was objecting.   Counsel replied:  “[I]n terms of any opinions in there, I would object, are hearsay opinions.   In terms of historical data or factual data, I don't think there would be an objection.”

The trial court received exhibit 94 and referred to the study in two footnotes of its statement of decision.   The first reference is in footnote 22, where the trial court quoted as follows from page 8 of exhibit 94:  “As concluded by the federal hydrology team, ‘[t]he 2005 channel [of the Ventura River] migrated against the east [Monte Vista] bluff along the river[.]  Some erosion at the toe of the bluff was observed.’  “ The second reference is in footnote 24, where the court quoted as follows from page 6 of exhibit 94:  “In 2007, the United States Department of the Interior, Bureau of Reclamation, recalculated flood frequencies at the Live Oak Levee at 19,800 cfs for a 20–year storm, 24,800 cfs for a 50 year storm, and 28,300 cfs for a 100 year storm.”   The Live Oak Levee runs along the western channel of the Ventura River opposite Monte Vista Bluff.   It was one of the flood control projects constructed by the District.

We agree with appellants that the out-of-court statements referred to in footnotes 22 and 24 constitute inadmissible hearsay.   We reject Homeowners' contention that, because appellants posted exhibit 94 on their website, it is admissible under the adoptive admission exception to the hearsay rule.   (Evid.Code, § 1221.)   The mere posting of a document on a party's website does not manifest the party's “adoption” of the document or “his belief in its truth.”  (Ibid.)

We also reject Homeowners' contention that the out-of-court statements are admissible under the authorized admission exception to the hearsay rule.   (Evid.Code, § 1222.)   The Denver Technical Service Center of the Bureau of Reclamation was not “a person authorized by [appellants] to make a statement or statements for [appellants] concerning the subject matter of the statement [s].”  (Id., subd. (a).)

Nor are the statements admissible under the official records exception to the hearsay rule.  (Evid.Code, § 1280.)   The statements are opinions.   They are not a “record of an act, condition, or event” that “was made at or near the time of the act, condition or event.”  (Ibid.) Since the statements are opinions, we also reject Homeowners' contention that appellants waived any objection to the “recalculated flood frequencies at the Live Oak Levee” by expressly objecting only to “opinions” and not objecting to “historical data or factual data” in exhibit 94.

Where, as here, the trial court erroneously admitted hearsay evidence, the judgment shall not be reversed unless the error “resulted in a miscarriage of justice.”  (Evid.Code, § 353, subd. (b).)  “[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.”  (People v. Watson (1956) 46 Cal.2d 818, 836;  accord, Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 591.)

The burden is on appellants to demonstrate that the trial court's error in admitting the hearsay evidence resulted in a miscarriage of justice.   (Gutierrez v. G & M Oil Company, Inc. (2010) 184 Cal.App.4th 551, 566.)   Appellants have failed to carry their burden.   As to the statements concerning the eastward migration of the Ventura River and the erosion of the toe of the Monte Vista Bluff, the trial court found the statements not “particularly enlightening.”   The court explained that, based on other evidence, “we know the channel migrated against the east bluff.   And we know that some erosion of the toe of the bluff was observed.”   Dr. Loaiciga testified that appellants' projects had diverted the channel of the Ventura River eastward toward the Monte Vista Bluff, causing “concentrated basal erosion” of the bluff.   As to the statements concerning recalculated flood frequencies at the Live Oak Levee, the statements shed no light on the extent to which appellants' projects contributed to the estimated peak flow figures.

Judicial Bias and Misconduct

Appellants contend that “the trial court injected itself into the proceedings as ultimate inquisitor, transforming [itself] from neutral arbiter to advocate” for Homeowners.   Appellants complain that the court “took over wholesale examination of [Homeowners'] witnesses, and conducted similarly vigorous cross-examination of [appellants'] witnesses.”  “Moreover, the focus of the court's conduct was clear – to establish [Homeowners'] case․  [T]he court did not simply point out [Homeowners'] gaps in evidence and invite them to fill them;  it personally undertook an effort to make [Homeowners'] case.”

Appellants did not preserve their claim of judicial bias for review because they did not raise the issue in the trial court.  (See the discussion at pp. 5–6, anti.)   Appellants also did not preserve their claim of judicial misconduct for review because they did not timely and specifically object to the manner in which the court examined witnesses.  (People v. Sanders (1995) 11 Cal.4th 475, 531;  People v. Corrigan (1957) 48 Cal.2d 551, 556;  People v. Camacho (1993) 19 Cal.App.4th 1737, 1745.)

In any event, appellants' claims of judicial bias and misconduct are without merit.   The court properly examined witnesses for the purpose of clarifying their testimony and eliciting material facts.  “Evidence Code section 775 ․ ‘ “confers upon the trial judge the power, discretion and affirmative duty ․ [to] participate in the examination of witnesses whenever he believes that he may fairly aid in eliciting the truth, in preventing misunderstanding, in clarifying the testimony or covering omissions, in allowing a witness his right of explanation, and in eliciting facts material to a just determination of the cause.”  ‘ [Citation.]” 4  (People v. Hawkins (1995) 10 Cal.4th 920, 947–948, disapproved on other ground in People v. Lasko (2000) 23 Cal.4th 101, 110.)  “ ‘The judge was obviously seeking to elicit or clarify testimony on material points, and it is the right and the duty of a judge to conduct a trial in such a manner that the truth will be established in accordance with the rules of evidence.  [Citation.]’  “ (People v. Corrigan, supra, 48 Cal.2d at p. 559.)

Appellants fault the trial court for receiving on its own motion not only the court's exhibit 2 (the EIR), but an additional 39 exhibits, “none of which had been offered into evidence by the parties and indeed, many of which had not even been identified in the course of trial.”   But the court's receipt of the 39 exhibits on its own motion did not show that it was biased in favor of Homeowners.   The trial court received the exhibits “to clearly bring out the facts so that the important functions of [its] office [would] be fairly and justly performed.  [Citations.]”  (In re Dupont's Estate, supra, 60 Cal.App.2d at p. 290.)   In a minute order, the court said it “believe[d] that a complete record would include receipt of the [39] exhibits.”   The court noted that the exhibits “are primarily, if not entirely, government documents produced by [appellants] and historic aerial photographs.”

Appellants complain that “[t]he court even went so far as to re-cast some of [Homeowners'] theories of liability.”   For example, “the trial court expressly found in its statement of decision that the ․ span [of a bridge constructed by appellants] was too small, causing erosion of the bluff.”   But the bridge's erosive impact was not a new theory developed by the court.   Dr. Loaiciga opined that the bridge project “double[d] the impact of the force of the water against the bluff.”

HOMEOWNERS' CROSS–APPEAL

Homeowners' cross-appeal contends that (1) they were denied the right to a jury trial on the issue of design immunity;  (2) the elements of design immunity were not established;  (3) the trial court erroneously granted appellants' motion for summary adjudication on the tort causes of action because there were triable issues concerning the loss of design immunity;  (4) the trial court erroneously refused to allow the jury to consider the cost of repair in determining damages on the inverse condemnation cause of action;  and (5) the trial court used the wrong rate for calculating prejudgment and postjudgment interest.

Design Immunity

Government Code section 830.6 provides design immunity to a public entity under certain conditions.   This immunity, which is an affirmative defense, is available irrespective of “whether a cause of action is pleaded on the theory of nuisance or on that of negligence.”  (Mikkelsen v. State of California (1976) 59 Cal.App.3d 621, 630.)   On the other hand, design immunity affords no protection against liability for inverse condemnation.  (Baldwin v. State of California (1972) 6 Cal.3d 424, 438.)

Government Code section 830.6 provides in relevant part:  “Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.”

“[A] public entity claiming design immunity must establish three elements:  (1) a causal relationship between the plan or design and the accident;  (2) discretionary approval of the plan or design prior to construction;  and (3) substantial evidence supporting the reasonableness of the plan or design.   [Citations.]”  (Cornette v. Department of Transp.  (2001) 26 Cal.4th 63, 69.)

Jury Trial

Proof of the first and second elements of design immunity—causation and discretionary approval—“requires a case-specific factual determination that must be left to the jury when there is conflicting evidence.  [Citations.]”  (Hernandez v. Department of Transp.  (2003) 114 Cal.App.4th 376, 377–388.)   Homeowners contend that “the court erred in declining to let a jury decide the first two [elements] of design immunity, and deprived [Homeowners] of their constitutional right to a trial by jury.”   But Homeowners have failed to show by citation to the record that evidence of the first two elements was conflicting.  (Hernandez v. Department of Transp., supra, 114 Cal.App.4th at pp. 377–388.)   Accordingly, we reject Homeowners' contention that they were denied their right to a jury trial.  (See Employers Mut. Cas. Co. v. Philadelphia Indem.   Ins. Co. (2008) 169 Cal.App.4th 340, 352 [“an appellant bears the burden of showing that the trial court erred”];  Warfield v. Summerville Senior Living, Inc. (2007) 158 Cal.App.4th 443, 448 [argument “unsupported by citations to the record ․ is deemed waived”].)

Second Element of Design Immunity

Homeowners contend that the trial court erroneously concluded that appellants had established the second element of design immunity:  discretionary approval of the plan or design prior to construction.  “The second element ․ ‘simply means approval in advance of construction by the legislative body or officer exercising discretionary authority.’  [Citation.]  A detailed plan, drawn up by a competent engineering firm, and approved by a city engineer in the exercise of his or her discretionary authority, is persuasive evidence of the element of prior approval.  [Citation.]”  Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 940.)  “There is no requirement that the design be expressed in any particular form.   The plan need only be sufficiently explicit to assure that it is understandable to the employee giving the approval.”  (Thomson v. City of Glendale (1976) 61 Cal.App.3d 378, 385.)

Homeowners argue that proof of the second element at the trial level is a question of law that is reviewed de novo.   But the issue of advance approval of the plan or design is primarily a question of historical fact.  “A trial court's finding of historical fact must be upheld if supported by substantial evidence.”  (People v. Tatum (2003) 108 Cal.App.4th 288, 296.)   We need not decide the applicable standard of review.   Under either standard, the trial court did not err in concluding that appellants had established the second element of design immunity.

Advance approval of the levee projects is manifested by (1) approved plans for project numbers 4660 and 81052 (exhibits 314 and 316), (2) the County Board of Supervisors' (Board's) approval of project number 4660 (exhibit 321) and (3) the Board's approval of an award of contract for project number 81052 (exhibit 323).   Approval of the dike project is manifested by approved plans for project number 4617 (exhibit 315) and the Board's approval of the project (exhibit 322).5  Approval of the 1974 bridge project is manifested by (1) approved plans for project number 7805 (exhibit 320) and the Board's approval of the project (exhibit 326).6  Approval of the Live Oak Creek Diversion Project is manifested by approved plans for project number 81211 (exhibit 317).7

We reject Homeowners' contention that the above plans and approvals are inadequate to satisfy the second element of design immunity.   Homeowners argue that appellants did not provide plans for the 1969 levee.   But in its statement of decision, the trial court found that in 1978 extraordinary floods had caused the 1969 levee to fail, “resulting in a grant of funds from the federal Soil Conservation Service to make permanent improvements to the Live Oak Acres levee.”   The court noted that “federal hydrologists [had] recently observed, ‘[t]he Live Oak levee was constructed shortly after 1978 and this constricted the channel to the east [Monte Vista bluff] side of the river channel.’  “ The record includes approved plans for the permanent improvements made after 1978 (exhibits 314 and 316).   It was therefore unnecessary for appellants to also provide approved plans for the 1969 failed levee.

Homeowners argue that appellants did not provide plans “for the two 1927 bridge approaches on which the bridge roadway sits even today.”   But in its statement of decision the trial court found that one of the four substantial concurring causes of Homeowners' damages was “[t]he County's 1974 concrete/riprap Santa Ana Boulevard bridge project.”   The court mentioned nothing about the two 1927 bridge approaches.   The record includes approved plans of the 1974 bridge project (exhibit 320).

Homeowners assert that “the two 1927 bridge approaches ․ were a major cause of damage to Monte Vista Bluff.”   In support of their assertion, Homeowners refer us to Dr. Loaiciga's testimony at pages 233 through 237 of volume 2 of the reporter's transcript.  (RB 87) But the cited testimony does not mention the 1927 bridge approaches.8

Homeowners complain that there was “no testimonial evidence that [appellants] approved plans for the 1961 ‘short span’ 50 foot wide bridge [or] the project that extended it in 1974.”   But at page 84 of their brief, Homeowners state that the 1961 “ ‘short span’ “ bridge “was washed out in the 1969 floods.”   (See also page 3, fn. 6 of the statement of decision [“After the destruction of the 1961 bridge in the 1969 floods ․, the current concrete structure was built and riprap protected in 1974”].)   Appellants have provided adequate documentation showing approval of the 1974 bridge project.

Homeowners maintain that the record does not include approved plans for the placing of a protective rock riprap buffer along the dike in 2000.   The dike was constructed in 1980, and the record includes approved plans for its construction (Exhibit 315).   Homeowners cite no evidence showing that the riprapping of the dike in 2000 materially contributed to the damages they sustained in 2005.   Quoting from the statement of decision, Homeowners claim that “the 2000 project ․ ‘effectively “seal[ed]” and armor[ed] Live Oak Acres from floodwater flows, forcing floodwaters formerly flowing through Live Oak Acres into the east channel and against unprotected Monte Vista bluff.’  “ (RB 91) But the statement of decision actually states that the “dike, created in 1980 and riprapped in or about 2000, effectively” accomplished these results.

Homeowners argue that the second element of design immunity cannot be established because appellants failed to show that they had balanced the risk that their projects would undermine the Monte Vista Bluff against the benefits that would be derived from the projects.   But appellants cite no authority to the effect that evidence of such a balancing process is a prerequisite for design immunity under Government Code section 830.6.

Homeowners' reliance on Caldwell v. Montoya (1995) 10 Cal.4th 972, is misplaced.  Caldwell involved discretionary act personal immunity extended to public employees pursuant to Government Code section 820.2.   Furthermore, Caldwell did not hold that, to invoke discretionary act personal immunity, a public employee must produce evidence showing that he balanced risks against potential benefits.

Finally, Homeowners assert that the plan approvals were inadequate because the approvals did not include the plans' “ ‘injury producing feature[s],’ “ which were “the increased velocity of the Ventura River, and diversion [of the river] toward Monte Vista Bluff.”   But the increased velocity and diversion of the river were not features of the plans.   Instead, as noted by Homeowners in their reply brief, the increased velocity and diversion of the river were “unintended consequences” of features of the projects' design.9  The persons who approved the plans must have considered these design features.   It is of no importance that these persons did not know that the features would result in the undermining of the Monte Vista Bluff.  (See Alvis v. County of Ventura (2009) 178 Cal.App.4th 536, 552 [“section 830.6 does not state the approval must be knowing or informed”].)

Third Element of Design Immunity

The third element of design immunity is that substantial evidence supports the reasonableness of the plan or design.  (Cornette v. Department of Transp., supra, 26 Cal.4th at p. 69.)  “Section 830.6 makes the resolution of this issue a matter of law for the trial or appellate court.  [Citation.]”  (Alvis v. County of Ventura, supra, 178 Cal.App.4th at p. 553.)   Homeowners contend that appellants failed to present substantial evidence supporting the reasonableness of the designs for their projects.

“If there is any substantial evidence supporting the reasonableness of the approved design, design immunity applies.   This is true even though the plaintiffs present evidence of a design defect:  ‘That a paid expert witness for plaintiff, in hindsight, found ․ the design was defective, does not mean, ipso factor, that the design was unreasonably approved.’  [Citation.]  ‘[A]s long as reasonable minds can differ concerning whether a design should have been approved, then the governmental entity must be granted immunity.’   [Citation.]”  (Higgins v. State of California (1997) 54 Cal.App.4th 177, 185, disapproved on other grounds in Cornette v. Department of Transp., supra, 26 Cal.4th at p. 74, fn. 3.)

We agree with the trial court's conclusion in its statement of decision:  “ ‘The fact of approval by competent professionals can, in and of itself, [and in the instant case does], establish the reasonableness element[.]’  Higgins v. California, supra, 54 Cal.App.4th at 187.”  (Brackets added by trial court.)  (See also Ramirez v. City of Redondo Beach (1987) 192 Cal.App.3d 515, 526 [“ ‘[A] detailed plan, drawn up by a competent engineering firm, and approved by the city council in the exercise of its discretionary authority, is certainly persuasive evidence of both elements of prior approval and reasonableness for purposes of the design immunity defense’ “].

Loss of Design Immunity

“[T]o demonstrate loss of design immunity a plaintiff must establish three elements:  (1) the plan or design has become dangerous because of a change in physical conditions;  (2) the public entity had actual or constructive notice of the dangerous condition thus created;  and (3) the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings.”  (Cornette v. Department of Transp., supra, 26 Cal.4th at p. 72.)

Homeowners argue that, in granting summary adjudication on the tort causes of action, the trial court erroneously concluded that they had failed to carry their burden of showing a loss of appellants' design immunity.   Homeowners maintain that the burden was on appellants “to establish there was no issue of fact as to loss of design immunity,” and that appellants failed to carry their burden.  (RB 106) Homeowners are mistaken.  “While defendant bore the burden of establishing each element of its design immunity defense in support of its summary [adjudication] motion, once defendant established its immunity, plaintiffs bore the burden of producing substantial evidence of a loss of design immunity.  [Citation.]”  (Weinstein v. California Dept. of Transp.   (2006) 139 Cal.App.4th 52, 60.)   Thus, Homeowners had the burden of producing substantial evidence of a loss of design immunity.

The trial court did not err in concluding that Homeowners had failed to carry their burden.   As to the first element of loss of design immunity, Homeowners did not produce evidence showing that the designs of the four projects had become dangerous due to changed physical conditions.   Instead, Homeowners showed that the designs themselves, not changed physical conditions, had created a dangerous condition (significant erosion along the base of the Monte Vista Bluff).  “[D]esign immunity, once acquired, is not lost until the public entity has notice of a change in physical conditions which has created a dangerous condition.”  (Grenier v. City of Irwindale, supra, 57 Cal.App.4th at p. 935, italics added.)

As to the second element of loss of design immunity, Homeowners did not produce substantial evidence showing that appellants “had actual or constructive notice of the dangerous condition.”  (Cornette v. Department of Transp., supra, 26 Cal.4th at p. 72.)   In its statement of decision, the trial court observed, “[T]he 2005 event is the first reported ‘undercutting’ of the toe supporting the base of the 38,000 year old bluff.”   Even if appellants had actual or constructive notice of the dangerous condition before 2005, Homeowners did not produce evidence showing that appellants had actual or constructive notice that the designs of their four projects had created the condition.

Damages:  Cost of Repair

The trial court limited damages to the diminution in fair market value of Homeowners' properties.   Homeowners contend that this limitation “was erroneous as cost of repair is an appropriate alternative measure of damages the jury should have been allowed to consider.”   Homeowners' counsel informed the court that his clients had received two estimates of approximately $7 million “for a substantial abatement” and one estimate of $26 million “for a full guaranteed absolute abatement.”   Counsel estimated that in 2006 Homeowners' properties had a fair market value between $8.6 and $9.6 million.

“The theory of inverse condemnation is that property has been taken and devoted permanently to public use, the full and appropriate remedy for which is compensation at fair market value.  [Citation.]”  (Housley v. City of Poway (1993) 20 Cal.App.4th 801, 809;  see also City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 897 [“ ‘The basic measure of damages in inverse condemnation actions ․ is “market value” ‘ “].) Thus, where the taking has resulted in injury to property, the usual measure of damages is the diminution in fair market value of the property.

However, there may be cases where “unique facts” demand departure “from the general rule” of fair market value damages.  (Housley v. City of Poway, supra, 20 Cal.App.4th at p. 810.)   The Housley court was “aware of only one case involving inverse condemnation which actually applied cost of repair in lieu of fair market value.”  (Id., at p. 808.)   The case is Pacific Gas & Elec. Co. v. County of San Mateo (1965) 233 Cal.App.2d 268 (P.G. & E.).   In that case San Mateo County planned to place 10 to 12 feet of fill over land subject to a pipeline easement in favor of P.G. & E. The pipeline was already buried to a depth of approximately four feet.   The trial court found that the county's plan “ ‘would interfere with the proper operation’ “ of the pipeline and would “ ‘make maintenance and repair more difficult.’  “ (Id., at pp. 270–271.)  “[T]he evidence showed that the added fill would seriously deter access to the line, make locating of leaks more difficult, substantially increase the stress to which the gas main would be subjected, and require greater time to reach the line.   Moreover, [P.G. & E. had] no equipment to dig a ditch of the depth which would be required because of the increased fill.”  (Id., at pp. 271–272.)

The county argued that P.G. & E. had “not [met] its burden of proving damages because it showed no diminution in value of the easement as a result of [the county's] plan.”  (P.G. & E., supra, 233 Cal.App.2d at p. 274.)   But the appellate court concluded that “obviously diminution in the value of the easement in a situation like this is not a proper measure of damages.”   (Ibid.) “ ‘[I]t is widely recognized that such a standard is meaningless when, as here, a public utility is being condemned.’  “ (Id., at p. 275.)   The appellate court upheld the trial court's award of the cost of relocating the pipeline.

Unlike P.G. & E., in the instant case there are no “unique facts” that render the general rule of fair market value damages obviously improper.   (Housley v. City of Poway, supra, 20 Cal.App.4th at p. 810.)   Homeowners argue that “cost of repair was an appropriate measure of damages as the homes sitting atop Monte Vista Bluff cannot be made safe without remediation.”   But they have not referred us to any evidence showing that their homes are in imminent peril of collapsing into the riverbed.   If this were the case, Homeowners' homes would be worthless and the jury would have awarded them the full fair market of their homes prior to the January 2005 storm.10

Homeowners rely on the rule that, in actions for tortious injury to property, where “the plaintiffs have a personal reason to repair and the costs of repair are not unreasonable in light of the damage to the property and the value after repair, costs of repair which exceed the diminution in value may be awarded.   [Citation.]”  (Orndorff v. Christiana Community Builders (1990) 217 Cal.App.3d 683, 687.)   But the case here involves inverse condemnation, not tortious injury to property.   Homeowners' tort causes of action were summarily adjudicated in appellants' favor.

Furthermore, to invoke the “personal reason” exception in an action for tortious injury to property, a plaintiff must show that he or she will not merely pocket the damages award but will actually use it to repair the property.  (Safeco Ins. Co. v. J & D Painting (1993) 17 Cal.App.4th 1199, 1203;  Orndorff v. Christiana Community Builders, supra, 217 Cal.App.3d at pp. 688–689;  Heninger v. Dunn (1980) 101 Cal.App.3d 858, 863–864.)   Homeowners made no such showing.   Indeed, Homeowners Donald and Marilyn Prater could not have made such a showing because they had already sold their home on the Monte Vista Bluff.   The Praters obviously did not intend to expend any damages awarded on repairs.

Interest Rate

“A prevailing plaintiff in an inverse condemnation action ․ is entitled to prejudgment interest.   Such interest accrues not from the time the action is commenced, but from the time the damage occurs.  [Citation.]”  (Customer Co. v. City of Sacramento (1995) 10 Cal.4th 368, 390.)  Code of Civil Procedure section 1268.311 provides that, in an inverse condemnation proceeding, “interest shall be computed as prescribed by Section 1268.350.”   The latter section provides that the rate of interest shall be “the apportionment rate calculated by the Controller as the rate of earnings by the Surplus Money Investment Fund for each calendar quarter.”   Despite this legislative directive, “[t]he court must determine ‘the prevailing market rate’ of interest in order to provide plaintiff the ‘ “full and perfect equivalent of the property taken.  [Citation.]”  ‘ [Citation.]   Accordingly, Code of Civil Procedure section[ ] ․ 1268.350 ․ merely establish[es] the minimum rate of prejudgment interest.  [Citation.]”  (Id., at pp. 390–391.)  “Inasmuch as the rate of return earned by the state on its Surplus Money Investment Fund continually ‘floats' so as to reflect a relatively current matrix of market rates of interest, it is unlikely that the interest rate fixed pursuant to the legislative schema will ever be found to deviate widely from a trial court's independent determination of extant market rates.”  (People ex rel. Dept. of Transportation v. Diversified Properties Co. III (1993) 14 Cal.App.4th 429, 451.)

Here, the trial court adopted the apportionment rate for calculating prejudgment interest.11  Homeowners argue that the trial court should have adopted the higher interest rate set forth in “ ‘Moody's Composite Index of Yields on long term Corporate Bonds,’ including the four indices found in the ‘comprehensive monthly Federal Reserve Bulletin’ ․, that have been judicially recognized as establishing the prevailing market rate.”  (RB 121) In support of their argument, Homeowners cite Redevelopment Agency v. Gilmore (1985) 38 Cal.3d 790, 804, 806.  Gilmore does not support Homeowners' argument.   In Gilmore our Supreme Court declared that, in determining a proper rate of interest, “the variables applicable to the money market are so numerous, and its structure so subject to change over time, that rigid appellate guidelines would be of little use.”  (Id., at p. 806;  see also Glendale Redevelopment Agency v. Parks (1993) 18 Cal.App.4th 1409, 1422 [“absent a compelling showing that another rate should be applied, the use by a trial court of the variable Surplus Money Investment Fund is not a dereliction of its duty to determine the prevailing market rate”].)

Homeowners also argue that the trial court erroneously adopted the apportionment rate to calculate postjudgment interest.   Homeowners maintain that the correct rate of interest is the higher constitutional rate of seven percent.  (Cal. Const., art.   XV, § 1.) Homeowners rely on the following statement of our Supreme Court:  “In the absence of a legislative provision setting the rate of [postjudgment] interest for claims against public entities, the constitutional rate of 7 percent per annum applies.”  (California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, 352–353.)

The seven percent constitutional rate is inapplicable here.   In inverse condemnation proceedings, the legislature has set the minimum rate of postjudgment interest as the apportionment rate.  (Code Civ. Proc., §§ 1268.311, 1268.350;  Customer Co. v. City of Sacramento, supra, 10 Cal.4th at pp. 390–391;  People ex rel. Dept. of Transportation v. Diversified Properties Co. III, supra, 14 Cal.App.4th at p. 449, fn. 16 [“it has always been accepted that the interest rate schema that applies in condemnation cases applies equally to both pre- and post-judgment periods of time”].)

Attorney Fees

As the prevailing party on appellants' appeal, Homeowners request that they be awarded attorney fees and costs pursuant to Code of Civil Procedure section 1036, which provides:  “In any inverse condemnation proceeding, the court rendering judgment for the plaintiff by awarding compensation ․ shall determine and award or allow to the plaintiff, as a part of that judgment ․, 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.”  (Italics added.)   We agree that Homeowners are entitled to reasonable attorney fees and costs on appellants' appeal but not on the cross-appeal.

Disposition

The judgment is affirmed in its entirety.   Pursuant to Code of Civil Procedure section 1036, Homeowners shall recover their reasonable attorney fees and costs on appellants' appeal but not on the cross-appeal.   Appellants shall recover their costs on the cross-appeal.   The amount of recoverable fees and costs shall be determined by the trial court on noticed motion.

NOT TO BE PUBLISHED.

We concur:

Glen Reiser, Judge

Superior Court County of Ventura

Hurrell Cantrall, Thomas C. Hurrell and Meinda Cantrall;  Greines, Martin, Stein & Richland, Timothy T. Coates, Caroklyn Oill and Alan Diamond, for Appellants and Cross–Repondents.

Mark A. Papay, Law Office of Mark Alan Papay;  Richard L. Moomau, Moomau & Associates, Kenneth E. Chyten, Law Office of Kenneth Chyten. for Respondent and Cross–Appellant.

FOOTNOTES

1.  FN1. “[A]n ‘inverse condemnation’ action may be pursued when the state or other public entity improperly has taken private property for public use without following the requisite condemnation procedures—as when the state ․ takes ․ action that effectively circumvents the constitutional requirement that just compensation be paid before private property is taken for public use.”  (Customer Co. v. City of Sacramento (1995) 10 Cal.4th 368, 377.)

2.  FN2. The factual background is primarily taken from the trial court's statement of decision.  (See Chapala Management Corp. v. Stanton (2010) 186 Cal.App.4th 1532, 1535 [“ ‘ “Where [a trial court's] statement of decision sets forth the factual and legal basis for the decision, any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision” ‘ “].)

3.  FN3. In their reply brief, appellants contend that the trial court's “improper receipt and consideration” of the EIR “is reversible error per se.”  As authority for their contention, appellants cite Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 247, and Rice v. Brown (1951) 104 Cal.App.2d 100, 106–107.   The Catchpole court concluded that judicial bias is reversible per se irrespective of whether the bias is actual or merely apparent.  (Catchpole v. Brannon, supra, 36 Cal.App.4th at p. 247.)   The trial court's conduct here did not manifest even an appearance of bias.   Moreover, in People v. Freeman, supra, 47 Cal.4th at p. 1006, fn. 4, our Supreme Court rejected the notion “that due process may be violated by the appearance of bias alone.”  (See also Id., at p. 996.)   The Supreme Court disapproved Catchpole to the extent that it contains inconsistent language.  (Id., at p. 1006, fn. 4.) The Rice court concluded that the trial court had erroneously relied on findings in a referee's report because “no trial or hearing of any kind was had before the referee.”  (Rice v. Brown, supra, 104 Cal.App.2d at p. 103.)   The Rice court observed that “[t]he conduct of the referee in this proceeding deprived the appellants of their day in court․”  (Id., at p. 106.)   Here, in contrast, appellants received a full trial on the inverse condemnation cause of action.

4.  FN4. Evidence Code section 775 provides:  “The court, on its own motion ․, may call witnesses and interrogate them the same as if they had been produced by a party to the action․”

5.  FN5. In their reply brief, Homeowners contend that the plans for the dike are “as-built” plans prepared and approved in 1981, after the dike had been completed in 1980.   The plans bear an “AS BUILT” stamp dated January 6, 2001.   But the plans show that they were approved in October 1979 by both a division engineer and the Director of Public Works.   The record includes a Board resolution, dated November 6, 1979, approving the plans and specifications for the dike and authorizing the acceptance of bids.

6.  FN6. Appellants requested that exhibit 326 be received in evidence.   But, through an oversight, the court did not expressly receive the exhibit.   The court expressly received the seven exhibits listed on page 2 of appellants' request, but apparently did not notice that exhibit 326 was listed by itself on page 3, the signature page.   We deem exhibit 326 to have been impliedly received in evidence.

7.  FN7. In their reply brief, Homeowners contend that the plans for the 2000 Live Oak Creek Diversion Project (mistakenly referred to as “the 2000 Riverside Dike”) are “as-built plans ․ [that] were prepared and approved in 2002.”   We disagree.   The plans bear a “RECORD DRAWING” stamp showing that the project was completed on October 26, 2000, and that revisions to the plans were approved in January 2002.   Individual pages of the plans were originally approved either in 1999 or during the first few months of 2000.  (RA 315–332)

8.  FN8. In their reply brief, Homeowners additionally refer us to portions of the testimony of Dr. Edward Keller.   But the cited testimony does not show that “the two 1927 bridge approaches ․ were a major cause of damage to Monte Vista Bluff.”

9.  FN9. In their reply brief, Homeowners state:  “[I]t was and is [Homeowners'] position that the projects were designed to keep water from flooding Live Oak Acres․  [Appellants] did not consider that the unintended consequences of keeping water out of Live Oaks would be to divert the water to Monte Vista Bluff, and cause it to destabilize.”

10.  FN10. Homeowners expert, Daniel Bone, a certified real estate appraiser, opined that Homeowners' homes had lost 50 percent of their fair market value.

11.  FN11. In a footnote, Homeowners request that we take judicial notice of the apportionment rate historical schedule published by the California State Controller's Office.   We deny the request because Homeowners have failed to comply with the requirements of rule 8.252(a)(1) of the California Rules of Court.

YEGAN, Acting P.J.

COFFEE, J.PERREN, J.

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