AKINS v. STATE

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Court of Appeal, Third District, California.

Al Frank AKINS et al., Plaintiffs and Respondents, v. The STATE of California et al., Defendants and Appellants.

No. C015891.

Decided: February 14, 1996

Daniel E. Lungren, Attorney General, Robert L. Mukai, Chief Assistant Attorney General, Marvin Goldsmith, Senior Assistant Attorney General, Darryl L. Doke, James H. Wernicke, David DeAlba, Deputy Attorneys General, Downey, Brand, Seymour & Rohwer, Thomas N. Cooper, Ronald Liebert, Hardy Erich Brown & Wilson, David S. Worthington and Barbara Gould Archibald for defendants and appellants. Ellison, Schneider & Lennihan and Martha H. Lennihan, Sacramento, as amici curiae on behalf of appellants. Desmond, Miller & Desmond, Richard F. Desmond, Dopkins & Rolfe, William E. Dopkins III, Sacramento, Gordon & Rees, Douglas B. Harvey, Goldstein & Goldstein and David Collins, San Francisco, for plaintiffs and respondents.

Defendants State of California, Reclamation District 1000 (RD 1000), and American River Flood Control District (ARFCD) appeal from a judgment following a bench trial, finding defendants liable for inverse condemnation claims of 25 plaintiffs whose personal and real property was damaged by flooding during heavy storms in February 1986.1

Except for plaintiffs whose properties were located in an area known as Strawberry Manor, plaintiffs' properties were damaged when flood control works that were designed to protect lower-lying lands created a hydraulic dam and backwater effect that caused flooding of plaintiffs' upper-lying lands.   As to plaintiffs located in Strawberry Manor, liability was predicated on defendants' failure to have a flood-watch plan to close a gap built into a levee, thereby causing a failure in a system designed to protect that territory.

Defendants contend they are not liable because Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 253 Cal.Rptr. 693, 764 P.2d 1070, assertedly demands that in all inverse condemnation cases involving flood control works, plaintiffs must prove unreasonable conduct by the defendants.   Defendants contend they did not act unreasonably.   We shall conclude Belair 's reasonableness test does not apply where governmental flood control works intentionally divert water and cause flooding of upstream private property which was not subject to flooding from that source under natural conditions, in order to protect lower-lying land.   We shall also conclude that, although Belair's reasonableness test applies to the flooding of Strawberry Manor, the trial court properly found that defendants State of California and ARFCD acted unreasonably.   We shall also conclude defendants fail to show any reversible error in their contentions regarding causation, joint and several liability, and other miscellaneous matters, with one exception.   We shall reverse the judgment insofar as it held RD 1000 liable for damage in Strawberry Manor.   We shall otherwise affirm the judgment in favor of the representative plaintiffs.2

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs' properties are located in Sutter and Sacramento Counties, generally to the east and north of the public improvements in question.   In their natural condition, plaintiffs' lands drained to the west into an area known as the “American Basin.”   The American Basin is a large area of low-lying lands bounded generally by the Bear River on the north, the Feather River and Sacramento River on the west, the American River on the south, and higher ground to the east.   The American River flows west into the Sacramento River.   In its natural condition the American Basin eventually drains into the Sacramento River and out to the sea.

The properties that are the subject of this litigation are located in three distinct geographical areas:

1. “North of Sankey Road”—land in Sutter County lying east of the American Basin and north of Sankey Road;

2. “Rio Linda”—land in Sutter and Sacramento Counties, lying east of the American Basin and south of Sankey Road, bordered by Sankey Road on the north and Dry Creek on the south;  and

3. “Strawberry Manor”—a housing development in the City of Sacramento, lying east of the American Basin and south of the other two groups of damaged properties.   Strawberry Manor lies within the geographical territory of ARFCD and is adjacent to Arcade Creek and Rio Linda Boulevard.

The public improvements which caused the damage in this case are part of the Sacramento River Flood Control Project (SRFCP).   The portions of the SRFCP at issue protect the lower-lying lands to the west and south of plaintiffs' properties, including the American Basin and downtown Sacramento.   Levees and the Natomas East Main Drain (NEMD), an artificially-created canal running north to south along the east border of the American Basin, protect the American Basin by diverting surface and stream waters that flow from the east.   These public works prevent the flow from entering the American Basin.   The diverted waters flow either south in the NEMD into the American River, or north into the artificially-created Natomas Cross Canal (the Cross Canal), which carries the water west to the Sacramento River.

Running along the west side of the NEMD is a “back levee” (which is also called the “east levee” because it borders the east side of RD 1000).   Running along the east side of the NEMD are railroad levees with numerous openings that allow water from the east to drain downhill to the west.3

The genesis of the public works dates back to 1911, when the State adopted a California Debris Commission Report (the Jackson Report), which provided for the construction of levees along the Sacramento and American Rivers and their tributaries to protect and reclaim the adjacent areas.

RD 1000 was created in 1911 by the State Legislature for the purpose of reclaiming the land of the American Basin and to prevent further flooding of that land.   In 1916, RD 1000 designed and constructed the NEMD and back levee.  RD 1000, together with another reclamation district to its immediate north, also built the Cross Canal.  RD 1000 is thus bounded on the west by the Sacramento River, on the north by the Cross Canal, on the east by the back levee and NEMD, and on the south by the American River.   The purpose of the NEMD and back levee was to reclaim land of the American Basin located within RD 1000 by collecting stream and surface waters flowing from the east and diverting those waters into the NEMD.   The back levee diverted Dry Creek, Arcade Creek, and other streams from their natural course, obstructing the normal passage of those streams into the American Basin and raising water levels east of the back levee.   The NEMD then carried the diverted waters south to the American River and north to the Cross Canal, which in turn carried water west to the Sacramento River.   As found by the trial court, the natural drainage was dammed and diverted by the combined effects of the project.

Studies and reports from that time period recognized that the public works created a risk of flooding upstream property to the east under certain circumstances.

In 1927 the State Legislature created the ARFCD, whose territory lies to the east of the NEMD, to protect lands in the cities of Sacramento and North Sacramento and their environs.   In 1935, levees were constructed along both sides of the American River and the south side of Arcade Creek.

In the 1950's, the United States Corps of Engineers began constructing a system of integrated flood control facilities in the Sacramento region (SRFCP), including levees in ARFCD's area.   The existing works were incorporated into this system.

In 1953, the SRFCP works were transferred to the State.   A memorandum of understanding confirmed the State's obligation to operate and maintain all completed works of the SRFCP and to hold the federal government harmless.   The State turned the levees over to the local districts for maintenance and operation but maintained responsibility for the project.

One of the levees in ARFCD's territory has a gap where the Rio Linda Bridge crosses Arcade Creek.   Defendants had no set plan to close that gap at high flood stages.

By 1956, the Corps of Engineers completed construction of Folsom Dam,4 along with additional levees on the American River below the dam.   These levees were then turned over to the State of California and accepted by the State for maintenance and operation.   The levees were constructed to protect and reclaim low lands of the City of Sacramento and its suburbs which were then extensively developed as residential areas.

Also in 1956, the State asked the Corps of Engineers to assume responsibility for the entire east side of the NEMD because of the perceived risk to lands to the east.   The Corps refused.

In February 1986, during unusually heavy storm conditions, when flows were high in both the Sacramento and American Rivers, waters in the NEMD and Cross Canal created a “hydraulic dam” 5 and backwater effect,6 causing flooding of plaintiffs' properties.7  Lands to the west and south of plaintiffs' properties were saved from flood damage.   In Strawberry Manor, the City of Sacramento (which is not a party to this appeal) during the midst of the storms attempted to close the gap in the levee at the Rio Linda Boulevard Bridge with sandbags, but the sandbagging was negligently performed and was ultimately unsuccessful, causing flood damage to Strawberry Manor.

In December 1986, more than 400 plaintiffs filed this action alleging various theories against various public entities.   In 1992, following pretrial proceedings and settlements, the case proceeded to a bench trial against the three remaining defendants on a sole theory of inverse condemnation.   The trial court found liability, and the parties stipulated to damages totaling approximately $600,000 (plus approximately $400,000 interest) for the representative plaintiffs.  (See fn. 1, ante.)

In its statement of decision, the trial court concluded that “[a]s a result [of the diversion of water], under certain conditions, a hydraulic dam effect was created in the NEMD during high stages in the American River.   This hydraulic dam effect impeded the diverted flow of water from the NEMD into the American River, resulting in higher water elevations in the NEMD and to the east․  [¶ ] ․ [T]he SRFCP creates a hydraulic dam effect under certain conditions in the Sacramento River.   This hydraulic dam effect impeded the diverted flow of water from the NEMD into the Cross Canal and the Sacramento River, resulting in higher water elevations in the NEMD which caused overtopping and collapse of the old Sacramento Northern Railway which acted as the east levee of the NEMD north of Sankey Road.”

Without these diversions, said the court, plaintiffs' properties would not have been damaged.

The trial court further found RD 1000 also added fractionally to the problem south of Sankey Road with two pumping plants that pumped surface water upstream out of the District into the NEMD.

As also found by the trial court, studies and reports dating back to the early 1900's (including the Jackson Report and subsequent reports adopted by the State) “recognized the hydraulic dam and backwater effects which the back levees and discharges at the American River would cause and the need for protecting upstream properties.   The State in the Bailey Report recognized that the lands east of RD 1000's back levees would be subjected to flooding and that the hazard needed to be addressed in order to protect these lands.”   (Italics added.)

As further stated by the court:  “Throughout the February 1986 flood, RD 1000's system, including the levees, pumps, and other works operated and functioned as designed to successfully protect the land and extensive urban improvements located in the American Basin within the boundaries of RD 1000 from extensive flooding of the entire basin which would have occurred in February 1986 absent the works of SRFCP including, but not limited to, the back levee of RD 1000.”  (Italics added.)

The court continued:  “The construction of Folsom Dam was designed to release 115,000 cfs. on all but rare occasions.   As a result of the intense rainfall during February 1986, releases into the American River at Folsom Dam were increased to 130,000 cfs. for a period of time between February 18 and February 19, 1986.”  “The higher flow rates resulting from increased releases at Folsom Dam were fully channelized and contained by the levees protecting RD 1000 and the American River levees, none of which failed, and which successfully protected the City of Sacramento (including North Sacramento), the American Basin and the developed areas adjacent to those levees from flooding.   The evidence is conclusive that, with the exception of the Rio Linda Boulevard Bridge [in the Strawberry Manor area], the system functioned as it was designed and intended.   Therefore, whether or not the flows or elevations exceeded ‘design capacity’ is irrelevant under the facts of this case because the successful containment of those waters was actually the substantial cause of the induced flooding and the plaintiffs' injury.”  (Italics added.)

“The cumulative and combined effects of this channelization and containment of the waters of the SRFCP created a hydraulic dam at each end of the NEMD.   This hydraulic dam, coupled with the effects of the earthen dam and pumps 6 and 8, caused induced flooding on plaintiffs' properties and caused their property to be appropriated by defendants as a temporary retention basin for storing the diverted waters.”  (Italics added.)

“North of Sankey Road the project caused levees protecting plaintiffs' lands to the east to be overtopped and break.   The backwater effect from the American River extended to Sankey Road in the north, causing diverted streams and intermittent water courses and surface waters to overtop the railroads and flood plaintiffs' properties.   South of Dry Creek the project caused Arcade Creek to escape its banks at Hagginwood Park and to overtop the Rio Linda Boulevard Bridge and escape through the gap in the levee.”

“The area north of Dry Creek west of Rio Linda Boulevard extending into Sutter County north of the cross canal flooded because of the project[-]induced backwater effect in the NEMD and the Natomas Cross Canal, and the diversion of the streams and surface waters that formerly flowed into the American Basin.”

As to Strawberry Manor, the court found the primary cause of flooding was the absence of a plan to close the gap at the Rio Linda Boulevard Bridge.

The trial court further stated:

“The storm of 1986 was not such an extraordinary storm that would constitute a sole intervening cause which supersedes the public improvement in the chain of causation.”

“The levee system protecting RD 1000 and the Cities of Sacramento, North Sacramento and their environs within the boundaries of the ARFCD and RD 1000 functioned as they were designed to function during the flood of 1986 and successfully protected the areas that were designed to be protected with the one exception of the gaps at Strawberry Manor.   Because of the protection afforded to these areas, the plaintiffs' properties were flooded, including Strawberry Manor.   The damages to other citizens which were prevented by such protection were in excess of seven billion dollars.” 8  (Italics added.)

The trial court rejected the defense argument that liability depended on a finding of unreasonable conduct under Belair v. Riverside County Flood Control Dist., supra, 47 Cal.3d 550, 253 Cal.Rptr. 693, 764 P.2d 1070, which held that “when a public flood control improvement fails to function as intended, and properties historically subject to flooding are damaged as a proximate result thereof, plaintiffs' recovery in inverse condemnation requires proof that the failure was attributable to some unreasonable conduct on the part of the defendant public entities.”  (Id. at p. 567, 253 Cal.Rptr. 693, 764 P.2d 1070.)   The court concluded Belair did not apply where damage to private property occurred as a result of a flood control project which, operating as intended, dammed water, “preventing its flowage across lower lands and pumping water upstream causing injury to the upper landowners” which would not have occurred under natural conditions.   The court further determined that even if Belair applied, defendants would still be liable because they unreasonably placed a dam interfering with natural drainage, pumped water upstream and backed water up onto upstream neighbors without providing adequate methods for discharge of the water.

As to Strawberry Manor, the trial court found the Belair test applied and was met, in that it was unreasonable not to have a plan to close the gap in the levee in times of danger.  “All entities assumed someone else would adequately sand bag or close the gaps by some appropriate means when it became necessary.   To build a levee with such a gap in the middle without any plan to close the gap could only be described at best, as unreasonable and negligent conduct.   An assumption that someone would close the gap is not a plan.”

The statement of decision summarizes the court's conclusions as follows:

“In summary, the Court has found that the plaintiffs suffered damages to real and personal property caused by project[-]induced flooding which occurred in February 1986.   Although the storm event was severe, it was foreseeable with respect to the area in which plaintiffs were located.   The storm event alone would not have caused the flooding of plaintiffs' properties but for the numerous combined effects of the public project.

“The facts are extensive but they lead to the inescapable conclusion that the combined effects of the [SRFCP] as constructed and maintained for the successful protection of others was a substantial concurring cause of the induced flooding.   Principal among those causes and effects were:

“1. The natural drainage was dammed and diverted.

“2. The diversion successfully protected the lower landowners.

“3. The diversion flooded the upper owners.

“4. The defendants unreasonably failed to provide for proper discharge of the diverted water.

“5. Defendants failed to comply with the legal standards set for the construction and operation of the SRFCP by:

“a. Failing to provide freeboard [9 ] as required;

“b. Failing to adopt a proper plan for a flood fight as required․

“This is not a case of ‘failure to retain water within design capacity,’ but rather a case where it was clearly foreseeable, if not actually foreseen, that if the project worked as designed it would induce flooding in an event of this sort, billions of dollars worth of property would be protected and plaintiffs' properties would be flooded as a consequence.

“Thus, in general the evidence has established more elements of liability for flooding than minimums that were set forth in Belair v. Riverside [ ] County Flood Control Dist. (1988) 47 Cal.3d 550 [253 Cal.Rptr. 693, 764 P.2d 1070] in that:

“a. Actual physical injury to real and personal property was proximately caused by the public improvement as deliberately designed and constructed;

“b. The injury was foreseeable;

“c. If uncompensated, the plaintiffs would be required to contribute more than their proper share to the public undertaking and the loss inflicted upon them would not be distributed throughout the community as required by the constitutional provisions in inverse condemnation;

“d. Although the storm event was severe, there was a ‘ “substantial” cause and effect relationship which excludes the probability that other forces ALONE produced the injury’;

“e. The project diverted waters that would not otherwise have crossed or damaged plaintiffs' property;

“f. The flooding did not result from a failure to provide the plaintiffs with the same degree of protection as provided to others ․ it resulted directly from the fact that protection was provided to others, thus the project increased the ‘natural servitude.’

“In substance, the evidence conclusively shows that the defendants' joint ‘design, construction, and maintenance of the flood control project ․ posed an unreasonable risk of harm to the plaintiffs, and such unreasonable design, construction and maintenance constituted a substantial cause of the plaintiffs' damages.’   The plaintiffs were required to bear a disproportionate share of the cost of the public improvement.”

The trial court found the State and RD 1000 jointly and severally liable for damages north of Sankey Road, and found all three defendants jointly and severally liable for damages in the Rio Linda and Strawberry Manor areas.

Judgment for the representative plaintiffs awarded specific dollar amounts (1) to the representative plaintiffs north of Sankey Road as against the State and RD 1000, and (2) to the Rio Linda and Strawberry Manor representative plaintiffs as against all three defendants.

Defendants moved for a new trial on the grounds of insufficient evidence and also moved to vacate judgment.   Since Judge Fields, who conducted the trial, had retired and was unavailable, the matter was heard by Judge Ford.   Not having heard the extensive trial evidence (which comprises more than 7,000 pages of reporter's transcript and more than 600 exhibits) and not even having the trial transcript available, Judge Ford stated he was not in a position to make an informed decision and therefore declined to act during the statutory period, thereby effectuating a denial of the motions as a matter of law.10  Defendants appeal from the judgment.

DISCUSSION

I. Belair's Reasonable Conduct StandardA. Property Other Than Strawberry Manor

 Defendants contend the reasonable conduct standard of Belair v. Riverside County Flood Control District, supra, 47 Cal.3d 550, 253 Cal.Rptr. 693, 764 P.2d 1070, applies to all flood control works cases, and even if it does not, there is no substantial evidence to support the judgment.   We shall conclude Belair does not apply to the property other than Strawberry Manor (i.e., north of Sankey Road and Rio Linda), and substantial evidence supports the judgment.11

1. The Belair Standard Does Not Apply

California Constitution, article I, section 19 (formerly § 14) provides in pertinent part:  “Private property may be taken or damaged for public use only when just compensation ․ has first been paid․”

“When there is incidental damage to private property caused by governmental action, but the governmental entity has not reimbursed the owner, a suit in ‘inverse condemnation’ may be brought to recover monetary damages for any ‘special injury,’ i.e., one not shared in common by the general public.”   (Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 362, 27 Cal.Rptr.2d 613, 867 P.2d 724.)

The central issue in this case involves whether these rules must be applied in accordance with Belair, supra, 47 Cal.3d 550, 253 Cal.Rptr. 693, 764 P.2d 1070.   Defendants claim Belair requires plaintiffs to show unreasonable conduct by public entity defendants in order to recover in any inverse condemnation case involving flood control.12  We disagree, because this case involves an intentional diversion of water which increased the natural servitude to plaintiffs' properties, a circumstance the Belair court expressly stated it need not address.   We shall conclude traditional principles of inverse condemnation support imposition of liability in the circumstances of this case.

In Belair, landowners brought inverse condemnation actions against a public flood control district and the state for property damage when a levee gave way after several days of heavy storms.   The project was designed to prevent river waters from escaping and flooding a particular area of land which had historically been subject to flooding.  (Belair, supra, 47 Cal.3d at p. 557, 253 Cal.Rptr. 693, 764 P.2d 1070.)   The plaintiffs' properties were located within that area.  (Id. at p. 556, 253 Cal.Rptr. 693, 764 P.2d 1070.)   At the time of the flooding, the water flow in the river did not exceed the levee's design capacity.  (Ibid.)  The plaintiffs' damages did not result from an overflow of the river but rather from a failure in a portion of the project levee, by reason of a breach at a particular point in the levee which allowed the channel waters to escape the river channel and flow onto the plaintiffs' properties.  (Ibid.)  The breach was caused by the undermining or erosion of the levee foundation, which in turn was caused in part by the presence of two nearby levees not owned or operated by the defendant district.  (Belair, supra, 47 Cal.3d at pp. 555–556, 253 Cal.Rptr. 693, 764 P.2d 1070.)   The configuration of the three levees forced channel waters to flow against the district's levee at an angle which caused erosion and undermining of the levee toe.  (Id. at p. 556, 253 Cal.Rptr. 693, 764 P.2d 1070.)

Belair held the plaintiffs could not recover in inverse condemnation under the California Constitution, because they had not adduced evidence that the flooding was the result of any unreasonable act or omission attributable to the defendants.  (Belair, supra, 47 Cal.3d at p. 567, 253 Cal.Rptr. 693, 764 P.2d 1070.)

The Belair court explained its reasoning as follows: 13

Historically, courts analyzed inverse condemnation liability by analogy to tort and property law principles, an approach predicated in part on the general understanding that inverse condemnation liability was limited to cases in which a private party would be held liable for injury to property under like circumstances.  (Belair, supra, 47 Cal.3d at p. 562, 253 Cal.Rptr. 693, 764 P.2d 1070.)

 That general understanding changed with Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 42 Cal.Rptr. 89, 398 P.2d 129, which “shifted the focus in inverse condemnation cases from the common law to the Constitution.”   (Belair, supra, 47 Cal.3d at p. 562, 253 Cal.Rptr. 693, 764 P.2d 1070.)   Albers, a case involving a landslide caused by county road construction, “rejected the notion that there need be a congruence between public and private liability in inverse condemnation actions.” 14  (Belair, supra, 47 Cal.3d at pp. 562–563, 253 Cal.Rptr. 693, 764 P.2d 1070, internal quotations omitted.)   The critical issue is not whether the plaintiff would have a cause of action under tort or property law if damage were inflicted by a private person but rather whether the plaintiff should recover as a matter of interpretation and policy under article I, section 19, of the Constitution.  (Belair, supra, 47 Cal.3d at p. 563, 253 Cal.Rptr. 693, 764 P.2d 1070, citing Albers v. County of Los Angeles, supra, 62 Cal.2d 250, 42 Cal.Rptr. 89, 398 P.2d 129 and Holtz v. Superior Court (1970) 3 Cal.3d 296, 90 Cal.Rptr. 345, 475 P.2d 441.)   Under the fundamental policy basis of the constitutional requirement of just compensation, “[t]he decisive consideration is whether the owner of the damaged property if uncompensated would contribute more than his proper share to the public undertaking.   In other words, the underlying purpose of our constitutional provision in inverse—as well as ordinary—condemnation is to distribute throughout the community the loss inflicted upon the individual․  [Citation.]”  (Belair, supra, 47 Cal.3d at p. 558, 253 Cal.Rptr. 693, 764 P.2d 1070, internal quotations omitted.)

Thus, Albers held that “any actual physical injury to real property proximately caused by the improvement as deliberately designed and constructed is compensable under article I, section [19], of our Constitution, whether foreseeable or not.” 15  (Belair, supra, 47 Cal.3d at p. 563, 253 Cal.Rptr. 693, 764 P.2d 1070, citing Albers v. County of Los Angeles, supra, 62 Cal.2d 250, 42 Cal.Rptr. 89, 398 P.2d 129.)

In so holding, however, Albers retained two exceptions to this general rule of strict liability.  (Belair, supra, 47 Cal.3d at p. 563, 253 Cal.Rptr. 693, 764 P.2d 1070, citing Albers v. County of Los Angeles, supra, 62 Cal.2d 250, 42 Cal.Rptr. 89, 398 P.2d 129.)   One exception was the “Archer exception” (Archer v. City of Los Angeles (1941) 19 Cal.2d 19, 119 P.2d 1) whereby government was not liable in inverse condemnation for activity which was “privileged” at common law, i.e., where the public entity had a common law right to inflict damage.  (Belair, supra, 47 Cal.3d at p. 563, 253 Cal.Rptr. 693, 764 P.2d 1070.)   The “doctrine of the common law right to inflict damage, emanating from the complex and unique province of water law, has been employed in only a few restricted situations, generally for the purpose of permitting a landowner to take reasonable action to protect his own property from external hazards such as floodwaters.  [ ] Frequently referred to as the ‘common enemy’ doctrine, the notion is that the owner of land subject to flooding has the right to erect defensive barriers and that any injury caused thereby to lower landowners as the result of the increased discharge or velocity of water is considered damnum absque injuria [a noncompensable loss].”  (Belair, supra, 47 Cal.3d at p. 564, 253 Cal.Rptr. 693, 764 P.2d 1070, italics and internal quotations omitted.)  “The unique legal privilege which cloaks such protective measures undoubtedly reflects the overriding interest, in a developing economy, of making land freely available for settlement and improvement.”  (Ibid., fn. omitted.)   Thus, the 1879 addition of the word “damaged” to the constitutional provision did not give a right of action for damages which theretofore were damnum absque injuria.  (Locklin, supra, 7 Cal.4th at p. 363, 27 Cal.Rptr.2d 613, 867 P.2d 724.)

Archer itself held lower landowners could not recover for injury to land caused by public improvements (straightening, widening and deepening) to an upstream channel to improve drainage, even though the improvements increased the flow of water into a lagoon with no expansion of the outlet from the lagoon to the sea.  (Archer, supra, 19 Cal.2d at pp. 22–25, 119 P.2d 1.)

The other exception to the general rule of strict liability involved exercise of the police power, which in the context of a direct taking or damaging of property applies “only under emergency conditions;  i.e., when damage to private property is inflicted by government under the pressure of public necessity and to avert impending peril,” e.g., demolition of a building to prevent the spread of conflagration.16  (Belair, supra, 47 Cal.3d at p. 563, fn. 3, 253 Cal.Rptr. 693, 764 P.2d 1070, internal quotations omitted.)

In these two types of circumstances, “the urgency or particular importance of the governmental conduct involved was so overriding that considerations of public policy inveighed against a rule rendering the public entity liable absent fault.”  (Belair, supra, 47 Cal.3d at p. 563, 253 Cal.Rptr. 693, 764 P.2d 1070, citing Holtz, supra, 3 Cal.3d at pp. 304–305, 90 Cal.Rptr. 345, 475 P.2d 441.)

However, Belair further explained the Archer exception did not leave public entities with unqualified immunity.  (Belair, supra, 47 Cal.3d at p. 564, 253 Cal.Rptr. 693, 764 P.2d 1070.)  “Different policy considerations [ ] inform the public and the private spheres.   While ‘certain socially beneficial conduct may appropriately be designated “privileged” for private individuals in order that they will not be deterred from undertaking the activity, the public entity may continue to engage in this same “privileged” activity even if it must bear the loss of the resulting damages.’  [Citation.]”  (Belair, supra, 47 Cal.3d at p. 564, 253 Cal.Rptr. 693, 764 P.2d 1070, original italics.)  “Thus, while [the Supreme Court] recognized in Albers that strict inverse condemnation liability may not be appropriate in the case of flood control improvements, [the Court] emphasized in Holtz that such improvements should not be cloaked with the same immunity as private flood control measures.”  (Belair, supra, 47 Cal.3d at p. 564, 253 Cal.Rptr. 693, 764 P.2d 1070.)

The proper standard to be applied in such cases, said the Belair court, is that a public entity engaged in “privileged” activity will not be liable in inverse condemnation but only if it has acted reasonably.  (Belair, supra, 47 Cal.3d at p. 565, 253 Cal.Rptr. 693, 764 P.2d 1070.)   Thus, “[o]n the one hand, a public agency that undertakes to construct or operate a flood control project clearly must not be made the absolute insurer of those lands provided protection.   On the other hand, the damage potential of a defective public flood control project is clearly enormous.   Therefore, [ ] the courts have consistently held that ‘even when a public agency is engaged in such “privileged activity” as the construction of barriers to protect against floodwaters, it must at least act reasonably and non-negligently.   [ ]’ [Citations.]”  (Belair, supra, 47 Cal.3d at p. 565, 253 Cal.Rptr. 693, 764 P.2d 1070, original italics.)  “The reasonableness of the public agency's conduct must be determined on the facts of each individual case, taking into consideration the public benefit and the private damages in each instance.” 17  (Id. at p. 566, 253 Cal.Rptr. 693, 764 P.2d 1070.)

In their briefs, defendants argue Belair imposes a reasonableness test on all inverse condemnation cases involving flood control projects.18  They quote Belair 's language that “a public agency that undertakes to construct or operate a flood control project clearly must not be made the absolute insurer of those lands provided protection.” 19  (Belair, supra, 47 Cal.3d at p. 565, 253 Cal.Rptr. 693, 764 P.2d 1070.)

 Here, however, plaintiffs' properties were not among the “lands provided protection” by the flood control works which caused the damage—the back levee, NEMD, Cross Canal, and related improvements.   These flood control works were designed to protect the lower-lying lands to the west and south.   The public works diverted the water to plaintiffs' properties, which were not subject to flooding from that source under natural conditions.20  Thus, this is not a case where defendants are being held liable for unsuccessful attempts to protect against a risk of flooding created by natural causes.   Rather, defendants are being held accountable for a risk they created which subjected plaintiffs' property to a servitude which would not otherwise exist.21

Moreover, Belair did not hold that all flood control activity is privileged, and the Supreme Court expressly declined to decide any question of inverse condemnation liability for nonprivileged activity.  (Belair, supra, 47 Cal.3d at p. 567, 253 Cal.Rptr. 693, 764 P.2d 1070.)   Thus, in discussing the “common enemy” doctrine as involving privileged activity, the court observed:  “The common law privilege, however, does not permit a property owner to obstruct or divert a stream from its natural channel (Clement v. State Reclamation Board [ (1950) ] 35 Cal.2d [628,] 635–636 [220 P.2d 897];  [citation] ), or to collect and discharge surface waters so as to increase the natural servitude.  (Shaw v. Sebastopol (1911) 159 Cal. 623, 624 [115 P. 213];  Granone v. County of Los Angeles [ (1965) ] 231 Cal.App.2d [629,] 646 [42 Cal.Rptr. 34];  [citation].)”  (Belair, supra, 47 Cal.3d at p. 564, fn. 4, 253 Cal.Rptr. 693, 764 P.2d 1070.)   Later in its discussion, the Belair court stated:  “[T]he ‘common enemy’ doctrine did not confer the right to divert or obstruct waters from their natural channels or drainages, and several pre- as well as post-Albers decisions, relying on this principle, appear to have endorsed a rule of inverse liability without fault where such diversions were present.  (See, e.g., Youngblood v. Los Angeles County Flood Control Dist. [ (1961) ] 56 Cal.2d [603,] 607 [15 Cal.Rptr. 904, 364 P.2d 840] [‘When waters are diverted by a public improvement from a natural watercourse onto adjoining lands the agency is liable for the damage ․ even though no negligence could be attributed to the installation of the improvement.’];   see also Yee v. City of Sausalito [ (1983) ] 141 Cal.App.3d [917,] 920–923 [190 Cal.Rptr. 595].)  [¶ ] We need not examine the validity of these decisions here, for there was no evidence presented that the District levee affirmatively diverted or burdened plaintiffs' property with floodwaters in excess of those which would have escaped in the absence of the levee․  It is sufficient for our purposes here to hold that when a public flood control improvement fails to function as intended, and properties historically subject to flooding are damaged as a proximate result thereof, plaintiffs' recovery in inverse condemnation requires proof that the failure was attributable to some unreasonable conduct on the part of the defendant public entities.”  (Belair, supra, 47 Cal.3d at pp. 566–567, 253 Cal.Rptr. 693, 764 P.2d 1070, fn. omitted.)

Thus, Belair did not decide whether a reasonableness test applies in cases where there is a nonprivileged affirmative diversion.   The Supreme Court said the case before the court was not a diversion case because the trial court found, and the evidence demonstrated, that the plaintiffs “were subject to periodic flooding before the levee was constructed, and that the levee did not ‘increase the risk of damage or impose any easement, servitude, or other burdens on plaintiffs' property.”  (Belair, supra, 47 Cal.3d at p. 567, fn. 8, 253 Cal.Rptr. 693, 764 P.2d 1070.)   Here, as we have seen, the trial court found there was a diversion which “increased the ‘natural servitude’ ” on plaintiffs' property.

 Belair 's “reasonable conduct” standard in essence recognizes an exception to the general rule of liability when the government engages in “privileged” flood control activities.  (Belair, supra, 47 Cal.3d at pp. 564–565, 253 Cal.Rptr. 693, 764 P.2d 1070.)   However, the importance of flood control does not confer on the government a privilege to divert water to upstream private property which was not subject to flooding from that source under natural conditions, thereby creating a servitude which would not otherwise exist, in order to protect other property, without paying compensation.   We do not read Belair as compelling that result.   Since such conduct is not privileged, there is no reason to apply a “reasonable conduct” standard to the resulting damage.22

 It is antithetical to the precepts of the Constitution to allow the government affirmatively to burden private property in this manner in order to save other property from flooding, and expect the damaged property owner to absorb the loss.   Most crucially, where as here the government diverts water to upstream private property which was not subject to flooding from that source under natural conditions, imposition of inverse condemnation liability is fair.  “If ․ the construction of a flood control project diverts natural stream waters onto the land of a private owner and causes damage thereto, that property is as much taken or damaged for a public use for which compensation must be paid as if it were condemned for the construction of a highway or a school.”  (Clement v. State Reclamation Board (1950) 35 Cal.2d 628, 637–638, 220 P.2d 897.)

There is a final reason why Belair's test of “reasonableness” should not apply to an intentional damaging or taking of private property by a public entity.   According to Belair, “ ‘Reasonableness, in this context, is not entirely a matter of negligence, but represents a balancing of public need against the gravity of private harm.’  [Citation.]  [¶] The reasonableness of the public agency's conduct must be determined on the facts of each individual case, taking into consideration the public benefit and the private damages in each instance.  [Citation.]”  (Belair, supra, 47 Cal.3d at pp. 565–566, 253 Cal.Rptr. 693, 764 P.2d 1070.)   Yet there are few intentional public damagings or takings for a public purpose that would require compensation under Belair's cost/benefit analysis.   The public good in the construction of a hospital far outweighs the harm to the farmer whose field is taken.   The public good coming from the construction of a boulevard easily justifies taking the citizen's hedge in the process of a street widening.   Or here, it may be argued that defendant's flooding of plaintiffs' property may be justified by the public benefit in saving countless billions of dollars in flood damages to the City of Sacramento.   These examples illustrate why, if Belair's test of “reasonableness” is applied to intentional damagings or takings of private property for the public good, the test ultimately results in the evisceration of our great constitutional guarantee of just compensation.   We will not countenance that result.

 Here, the injury was caused by public improvements “as deliberately designed and constructed.”  (Belair, supra, 47 Cal.3d at p. 558, 253 Cal.Rptr. 693, 764 P.2d 1070.)  “The decisive consideration is whether the owner of the damaged property if uncompensated would contribute more than his proper share to the public undertaking.   In other words, the underlying purpose of our constitutional provision in inverse [ ] condemnation is to distribute throughout the community the loss inflicted upon the individual․”  (Ibid., internal quotations omitted.)

Here the public undertaking (in effect using plaintiffs' land as a temporary retention basin) successfully averted billions of dollars of property loss to other property.   Under the circumstances of this case, plaintiffs should not be expected to bear their loss alone.

Defendants point out that the Belair court, after stating it need not decide the validity of the diversion cases, said:  “It is doubtful, however, whether evidence of an unintended ‘diversion’—an elusive concept to begin with (see Van Alstyne [Inverse Condemnation:  Unintended Physical Damage (1969) ] 20 Hastings L.J. [431,] 460–461)—would elevate the test of inverse condemnation liability to absolute liability, rather than a reasonableness standard.   As earlier discussed, the purposes of the Constitution, rather than the rules ‘emanating from the complex and unique province of water law,’ must fix the extent of a public entity's responsibility.” 23  (Belair, supra, 47 Cal.3d at p. 567, 253 Cal.Rptr. 693, 764 P.2d 1070.)

However, this comment in Belair, doubting whether strict liability would apply, referred only to “unintended” diversions.   From Belair's citation to Van Alstyne, it appears the Supreme Court was referring to a historic distinction between “diversion” cases, where no fault was required for liability, and “obstruction” cases, where fault was required.  (Van Alstyne, supra, 20 Hastings L.J. at pp. 460–461.)   Although the distinction between diversion and obstruction was not clearly defined, “[a] deliberate program intended to alter the course of a stream for a public purpose is ordinarily treated under the ‘diversion’ rubric, while unintended flooding is usually attributed to a negligently planned project that creates an ‘obstruction.’ ”  (Id. at p. 461, 253 Cal.Rptr. 693, 764 P.2d 1070, fn. omitted.)

 Here, the trial court found a deliberate program intended to alter the course of streams for a public purpose.24  Belair recognized such conduct is not privileged.  “The common law privilege [for flood control], does not permit a property owner to obstruct or divert a stream from its natural channel [citations], or to collect and discharge surface waters so as to increase the natural servitude.  [Citations.]” 25  (Belair, supra, 47 Cal.3d at p. 564, fn. 4, 253 Cal.Rptr. 693, 764 P.2d 1070.)

The Fourth District has endeavored to explain Belair's reference to “unintended diversion” by distinguishing between a “diversion from” and a “diversion to,” in Bunch v. Coachella Valley Water Dist. (1989) 214 Cal.App.3d 203, 262 Cal.Rptr. 513 (review den.), which held Belair applies to all cases involving unintended physical damage to property caused by an unintended breach in flood control facilities, including cases where floodwaters were intentionally diverted from a natural channel.

In Bunch, damage to land in a flood plain was caused by a breach in a flood control facility designed to divert floodwaters from the flood plain.   (Bunch, supra, 214 Cal.App.3d at pp. 207–208, 262 Cal.Rptr. 513.)   Although the flood control facility intentionally diverted waters from their natural course, the diversion to the plaintiffs' property was an accident.   The Bunch court believed that Belair in effect abrogated the rule that nonprivileged flood control activity was subject to strict liability.  “Had it been the Supreme Court's intention in Belair to merely elucidate the extant standard of liability in ‘common enemy’/inverse condemnation cases, there would have been no need to reach beyond the Archer–Albers–Holtz line of authority (i.e., to reach beyond ‘prior case law’) in so doing.   However, in focusing its attention on constitutional principles as opposed to those common law principles embodied in the doctrine, and in broadening the scope of its analysis to ‘public policy and common sense’ in addition to ‘prior case law,’ the Supreme Court appears to us to have signaled an intention to seek a uniform standard of liability that would apply across the entire spectrum of flood control/inverse condemnation cases involving unintended physical damage to property.   Such a standard would permit an equitable, and constitutional, balancing of the competing legal and public policy considerations present in such cases without requiring hypertechnical, and hopelessly contrived, distinctions as to the nature and source of the floodwaters or as to whether the floodwaters were intentionally ‘diverted’ to or from a particular place.”   (Bunch, supra, 214 Cal.App.3d at p. 213, 262 Cal.Rptr. 513.)

Bunch quoted Belair's observation that it is “ ‘doubtful [ ] whether evidence of an unintended “diversion”—an elusive concept to begin with [citation]—would elevate the test of inverse condemnation liability to absolute liability, rather than a reasonableness standard.’ ”   (Bunch, supra, 214 Cal.App.3d at p. 214, 262 Cal.Rptr. 513, citing Belair, supra, 47 Cal.3d at p. 567, 253 Cal.Rptr. 693, 764 P.2d 1070.)   Bunch said:  “When one speaks of the ‘diversion’ of water, is one speaking of a diversion of water from a particular place or to a particular place?   The answer would appear to have a great deal to do with whether or not a diversion is deemed to be ‘intentional.’   A flood control facility which collects stream waters from two natural watercourses and moves them to yet a third clearly produces an intentional diversion of waters from the first two natural watercourses.   However, were this same flood control facility to ‘spring a leak’ and disgorge its contents in an area where no such disgorgement was planned or anticipated, the facility would equally clearly produce an un intentional diversion of water to a particular location.”  (Bunch, supra, 214 Cal.App.3d at p. 214, 262 Cal.Rptr. 513, original italics.)

“[T]he appropriate focus in flood control/inverse condemnation cases involving unintended physical damage to property is on whether water is unintentionally diverted to a particular place—without regard to whether the water is intentionally diverted from a particular place.”  (Bunch, supra, 214 Cal.App.3d at p. 215, 262 Cal.Rptr. 513, original italics.)  Bunch concluded “the standard of reasonableness which is enunciated in Belair is uniformly applicable in all flood control/inverse condemnation cases in which unintended physical damage to property is alleged to have been substantially caused by an unintended breach in flood control facilities—that is, by a failure of those facilities to function within their design capacity or otherwise as intended.”  (Bunch, supra, 214 Cal.App.3d at p. 215, 262 Cal.Rptr. 513.)

However, Bunch said in a footnote:  “We do not wish to be understood, of course, as suggesting that intentional diversions of water to a particular place cannot give rise to inverse condemnation liability or that establishing that liability in such a case would require an inquiry into the reasonableness of the public agency's conduct.   Such a diversion would result in intentional physical damage to property and would almost always give rise to governmental liability as a matter of course.”  (Bunch, supra, 214 Cal.App.3d at p. 214, fn. 8, 262 Cal.Rptr. 513, original italics.)

We agree with Bunch that if there was an intentional diversion “to” plaintiffs' properties, Belair does not apply, and defendants will be liable without a factual finding of unreasonable conduct.

 We thus conclude an intentional diversion of water which floods private property not subject to flooding from that source under natural conditions subjects flood control agencies to inverse condemnation liability without proof of unreasonable conduct.

2. The Statement Of Decision

 RD 1000 argues the trial court never made a finding that water was intentionally diverted to plaintiffs' properties.   We will conclude the trial court, in accordance with Code of Civil Procedure section 632,26 sufficiently explained the basis for its decision.27

Thus, the statement of decision contains the following:  “[T]he water backing up on plaintiffs' properties (other than those in Strawberry Manor) came from surface water and streams that had been diverted from normal courses by the construction and operation of the SRFCP as designed and intended. ”   (Italics added.)   Moreover, the court repeatedly found that the flood control works in February 1986 functioned as “intended,” which read in context supports the conclusion that the trial court found defendants understood that plaintiffs' properties would be flooded.   Additionally, the court said with respect to the land north of Dry Creek:  “Here the project functioned precisely as it was intended and designed to function, and the project successfully protected lands within the American Basin․  This is nothing more than lower landowners damming the water and preventing its flowage across lower lands and pumping water upstream causing injury to the upper landowners.”

We conclude the statement of decision sufficiently establishes that the trial court found this was a case of intended diversion, such that Belair's rule of reasonableness does not apply.

3. Sufficiency Of Evidence

RD 1000 points out the public works were intended to divert water to the Sacramento and American Rivers and contends there is no substantial evidence the works were intended to divert water to plaintiffs' properties.   ARFCD argues there “is no evidence to support the Trial Court's finding that the Project was designed and constructed with the intent to flood [plaintiffs'] properties or that it was foreseeable that such flooding would occur.” 28  The State and ARFCD contend the flooding was unintentional.   We shall conclude substantial evidence supports the judgment.

 “ ‘It is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.’  [Citations.]”  (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881, 92 Cal.Rptr. 162, 479 P.2d 362.)  “[I]n examining the sufficiency of the evidence to support a questioned finding, an appellate court must accept as true all evidence tending to establish the correctness of the finding as made, taking into account, as well, all inferences which might reasonably have been thought by the trial court to lead to the same conclusion.   Every substantial conflict in the testimony is, under the rule which has always prevailed in this court, to be resolved in favor of the finding.”  (Bancroft–Whitney Co. v. McHugh (1913) 166 Cal. 140, 142, 134 P. 1157.)

 A substantial evidence challenge requires us to measure the evidence adduced at trial against rules of law.  (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1534, 254 Cal.Rptr. 492.)

 Here, an appropriate definition of “intention” is at issue.   To be sure, there is no uniform agreement on what we mean by an “intentional” act.29  However, a criterion of “intention” widely accepted in the civil law is set forth in section 8A of the Restatement Second of Torts.   By that test, “intent” “denotes not only those results the actor desires, but also those consequences which he knows are substantially certain to result from his conduct.  [Citations.]”  (Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 922, 114 Cal.Rptr. 622, 523 P.2d 662.)   In our view, this test describes what we ordinarily mean by “intention” and we shall adopt it here.

 Measured by this test, the record contains substantial evidence of an intentional diversion, both before and after the 1956 completion of Folsom Dam.

Thus, studies and reports dating back to the early 1900's advised of the risk caused by the backwater effect of the NEMD.   The 1910 Kieffer Report (which was later approved by RD 1000 and the State) stated:  “A problem of the first magnitude in connection with this project is the control and disposition of the water delivered into the American Basin from the streams entering from the East.”   Kieffer warned a backwater effect could occur when high flows in tributary streams coincided with high flows in the Sacramento and American Rivers.   Kieffer forecast the “flooding of a tremendous area of farming country not previously overflowed.”

As plaintiffs' expert characterized it at trial, water that naturally ran into the Basin had to be discharged into the Sacramento and American Rivers in a different fashion so that the land protected by the back levee remained dry.   However, that proved difficult.   By intersecting the rivers, the Cross Canal and NEMD allowed river water to enter those areas.   Construction of the back levee and diversion of the waters from the east, coupled with the possibility of high flows in the Sacramento and American Rivers, potentially subjected land east of the NEMD to backwater flooding to which it had not previously been subjected.

In 1927, ARFCD was created for the specific purpose of protecting its territory from the known hydraulic dam and backwater effects.

In 1956, RD 1000 advised the State the federal government was refusing to assume responsibility for levees on the east side of the NEMD, and that if the federal government could not be persuaded to be responsible for those levees, “interception of drainage from the east will not be taken care of in the manner contemplated by the design of this project.   If that result is allowed to occur, flowage rights will undoubtedly have to be obtained across the low lands east of Reclamation District[ ] 1000 [ ].”

 Minutes of a State Reclamation Board meeting in May 1956 reflect that “both the east and west levees of the district channel were integral parts of the levee and drainage system designed to take care of the intercepted drainage from the foothill areas and for protection against back water from the Sacramento River.  [ ] [T]hese levees were originally considered practically to grade and section, but as the flood plane [30 ] was increased with the growth of the Sacramento River Project they were determined to be inadequate and recommended for inclusion in the program of reconstruction work, but that it appeared only a portion of the work on this system was scheduled for prosecution by the Corps of Engineers․”

In a May 1956 letter signed by State Reclamation Board Chief Engineer A.M. Barton (who previously served as District Engineer for ARFCD), the State implored the Corps of Engineers to assume responsibility for the east side of the NEMD because “[t]hese levees are all a part of a complete system that takes care of the intercepted drainage from the foothill area to the east and protects against back water from the Sacramento River.  [¶] These levees on the east side of the Natomas East Borrow Pit are as vital to this flood control system as the back levees themselves.   The opening of the cross canal into the Sacramento River permitted the back water of the river to reach these lands which under natural conditions would not have been flooded from that source.”

 The Corps of Engineers declined to assume responsibility for the east side of the NEMD north of ARFCD, because it was not included in the formal written documents for the project.   Defendants do not cite any evidence to show that they obtained flowage rights, as suggested in RD 1000's letter to the State, or took other action to resolve the problem after the Corps of Engineers declined to assume responsibility.31

A 1957 Corps of Engineers design memorandum (copies of which go to the State) indicated with respect to the NEMD:  “Any material increase in the[ ] flows beyond those computed would cause extensive overbank flooding on undeveloped lands above the project․” 32  The memorandum also stated with reference to the Cross Canal:  “This project flood plane provides full protection of rapidly developing urban lands in [RD] 1000 from flood conditions of project flood magnitude (estimated frequency of once in 200 years).   All other lands east and north of the project levees are agricultural lands that are not expected to become urban within the foreseeable future and therefore do not require such a degree of protection.”

In 1982, an environmental impact report for a road widening project noted that flooding within Arcade Creek in the vicinity of Rio Linda Boulevard was “backwater” from the NEMD.

Thus, both before and after construction of Folsom Dam, it was known that it was substantially certain that the public works in the NEMD area would cause flooding of plaintiffs' upstream properties, which would not have been subject to such flooding under natural conditions.   The foregoing evidence adequately supports the trial court's finding of liability for an intentional diversion.

The State and ARFCD obliquely intimate that there could be no intentional diversion because the risk to plaintiffs' properties would arise only under high flow conditions that would exceed the project's design capacity.   However, we have seen that documentary evidence from 1956 contains an admission that if the federal government would not assume responsibility for the east side of the NEMD, interception of drainage from the east would not be taken care of “in the manner contemplated by the design of the project.”   Moreover, in our view the critical fact is that defendants were given notice that the risk existed.

 We conclude substantial evidence supports the judgment.33

4. Natural Conditions

 RD 1000 contends it cannot be liable for diversion because its artificially-created channels have been transformed into natural conditions by the passage of time.  RD 1000 cites dated authority relieving public entities of responsibility for diversions after passage of a long period of time on the theory an entity should not be liable in perpetuity because the existing conditions of the area will change over time.  (E.g., Weck v. L.A. etc. Flood Control Dist. [Weck II ] (1951) 104 Cal.App.2d 599, 608–610, 232 P.2d 293.)   However, that authority predated the Supreme Court's shift in focus in inverse condemnation cases from the common law to the Constitution.34  (Albers, supra, 62 Cal.2d 250, 42 Cal.Rptr. 89, 398 P.2d 129.)  Locklin, supra, 7 Cal.4th 327, 27 Cal.Rptr.2d 613, 867 P.2d 724, found it unnecessary to address whether a public entity had a continuing obligation to monitor the impact of public works as urbanization occurs.   (Id. at p. 373, 27 Cal.Rptr.2d 613, 867 P.2d 724.)   However, we agree with Justice Mosk's concurring opinion in that case that “[i]t appears to follow inescapably from the principles of inverse condemnation liability [ ] that when the [defendant] is a public entity, such an obligation to monitor does exist.”  (Id. at p. 379, 27 Cal.Rptr.2d 613, 867 P.2d 724, conc. opn. of Mosk, J.)

We conclude the passage of time does not relieve defendants of liability.

B. Unreasonable Conduct—Strawberry Manor

As to Strawberry Manor, we will apply Belair because, as found by the trial court, that property flooded when a flood control system designed to protect it failed.   The trial court found that the system failure was the primary cause of flooding and that Belair applied.   Plaintiffs do not dispute that Belair applies to this system failure.   We will find unreasonable conduct under Belair has been shown, except with respect to RD 1000.

Defendants argue no substantial evidence supports the trial court's finding of unreasonable conduct with respect to Strawberry Manor.   We disagree, except for RD 1000.

 As indicated, the trial court found the failure to have a plan to close the gap in the levee at the Rio Linda Boulevard Bridge was the primary cause of damage to Strawberry Manor.   The court found defendants acted unreasonably in not having a plan to close the gap at high water stages:  “All entities assumed someone else would adequately sand bag or close the gaps by some appropriate means when it became necessary.   To build a levee with such a gap in the middle without any plan to close the gap could only be described at best, as unreasonable and negligent conduct.” 35

Plaintiffs' expert, hydrologist James R. Schaaf, testified that it was unreasonable not to have a plan to close the gap, though gaps themselves could reasonably exist.  “So the gap itself, just of and by the fact that you have a gap is not unreasonable.   But if you don't have a plan to close it when you need to close it, that's unreasonable.”

In a footnote ARFCD claims Schaaf's opinion (that lack of a closure plan was unreasonable) was formed after his deposition and was therefore improperly admitted over ARFCD's motion to strike pursuant to Code of Civil Procedure section 2034.   We decline to consider this vague contention unsupported by legal analysis or authority.  (See fn. 11, ante.)

The State, confusing reasonableness with causation, claims there was no evidence of unreasonableness because Schaaf assertedly went on to testify that in the instant case the absence of a plan was not what caused the sandbags on Arcade Creek to fail.   In the State's view, the absence of a plan to close the gap was not the cause of the damage to Strawberry Manor, because the gap was closed with sandbags by the City of Sacramento.   Defendants argue the flooding was caused by the failure of the sandbagging.   That the sandbagging was performed negligently does not, according to ARFCD, provide a basis for inverse condemnation liability.

However, the cited record shows that in cross-examination Schaaf testified the lack of a plan could be a cause of the “blowout” or failure of the sandbags:  “If they had a plan, and the plan was to do certain things, the lack of having that plan in—just that you are taking a risk on whatever happens, well, yeah.   That—that would add to the—to the blowout.  [¶] The fact that you don't have a plan, and you are just relying on luck to get it done, I mean, that, to me, seems to be willy-nilly.”   Schaaf was then asked if he knew why the sandbags blew out.   Schaaf said:  “Why they blew out?  [¶] Huh, you mean, whether the force of the water pushed the bags away or whether it was overtopped and then pushed away?  [¶] I don't know which occurred.”   Counsel asked:  “But the fact there wasn't a plan isn't what caused the failure of sandbags.   Is that right?”   Schaaf answered:  “You mean, the physical—the physical failure․  [¶] ․ That's true.”

This testimony does not detract from the finding that the failure to have a plan was unreasonable.   Nor does it detract from the finding that the failure to have a plan was a legal cause of the damage to Strawberry Manor.   Defendants cite no authority to support their position that the deficient sandbagging efforts by the city in the midst of the storm constitute a superseding cause cutting off defendants' liability for an unreasonable failure to have a plan to close the gap.

 RD 1000 argues it should not be liable for the Strawberry Manor damages, because they occurred outside RD 1000's territory, and RD 1000 is not responsible for the other defendants' failure to have a plan to close the gap.   We agree.   We see no evidence that RD 1000 had any responsibility for the absence of a plan to close the gap.   We therefore conclude RD 1000 is not liable for damages in Strawberry Manor.

We conclude the foregoing evidence is sufficient to support the trial court's finding of unreasonable conduct by the State and ARFCD with respect to Strawberry Manor.   We therefore need not address plaintiffs' assertions that (1) the failure to have a gap with no closure plan was unreasonable per se because it violated federal standards, and (2) the State and ARFCD unreasonably failed to require proper sandbag installation.   We conclude RD 1000 is not liable for damage in Strawberry Manor.36

II. Causation

Defendants contend plaintiffs also failed to establish the element of causation, and the sole cause was the unusually heavy “storm of record” which exceeded the project's design capacity.

 Causal connection in inverse condemnation requires a showing of “a substantial cause-and-effect relationship excluding the probability that other forces alone produced the injury.”  (Belair, supra, 47 Cal.3d at p. 559, 253 Cal.Rptr. 693, 764 P.2d 1070, original italics, internal quotations omitted.)   Belair recognized that causation is established where a public improvement constitutes a substantial concurring cause of the injury, even though other, independently generated forces contribute to the injury.  (Ibid.)

The State and RD 1000 argue the only way in which causation can be shown is if the flood control works fail to function as intended.   They cite the following language in Belair:  “Where independently generated forces not induced by the public flood control improvement—such as a rainstorm—contribute to the injury, proximate cause is established where the public improvement constitutes a substantial concurring cause of the injury, i.e., where the injury occurred in substantial part because the improvement failed to function as it was intended.”  (Belair, supra, 47 Cal.3d at p. 559–560, 253 Cal.Rptr. 693, 764 P.2d 1070, italics omitted.)

However, this does not mean that public entities are immune from inverse condemnation liability if a flood control project causes damage to private property while the project is functioning as intended.   The Belair court's use of the phrase “failed to function as it was intended” was a means of fleshing out the requirement for pleading substantial causation based upon the particular factual underpinnings of the case.   In Belair the water escaped from a levee constructed to protect a site that had been historically subject to flooding.  (Belair, supra, 47 Cal.3d at p. 556, 253 Cal.Rptr. 693, 764 P.2d 1070.)   Therefore, to show that defendant's facility was a substantial cause of injury to that site, it was necessary for the plaintiff in Belair to eliminate the other probable cause of damage, i.e., natural flooding.   This in turn required focusing on the functional capability of the failed public project:  if the levee had overflowed after it reached its design capacity, instead of when it was still below capacity, the cause of flooding might have been nature alone.   Although nature had a hand in the injury produced in Belair, the levee there failed to protect plaintiff even when it was not operating at capacity, thus it failed to function as intended, presenting a substantial cause of the injury.  Belair did not create an immunity for damages caused to private property by a project functioning as intended.   Such a result would be absurd.

 In a related contention, defendants argue the trial court erred in finding it irrelevant that the flooding occurred when storm conditions exceeded the project's design capacity.37  They suggest that since none of plaintiffs' properties were flooded until after SRFCP's design capacities were exceeded, SRFCP was not a substantial concurring cause of the flooding of plaintiffs' properties.   ARFCD claims that even assuming the project's design was unreasonable, there can be no liability under Belair unless the damage occurred while the conditions were within design capacity.   Otherwise, the project is not a cause of the damage, says ARFCD.   In support of these arguments defendants cite the following language from Belair:  “The public improvement would cease to be a substantial contributing factor, however, where it could be shown that the damage would have occurred even if the project had operated perfectly, i.e., where the storm exceeded the project's design capacity.   In conventional terminology, such an extraordinary storm would constitute an intervening cause which supersedes the public improvement in the chain of causation.”  (Belair, supra, 47 Cal.3d at p. 560, 253 Cal.Rptr. 693, 764 P.2d 1070, italics added.)

However, the Belair court was speaking with reference to the facts present in that case;  it was not establishing a rule of law that a flood control project becomes immune when storm conditions exceed design capacity.   The facts in Belair were that the damaged properties were historically subject to flooding from natural causes.   Thus, if the flood control project worked perfectly and the storm exceeded the design capacity, the storm would be the sole cause of the injury.   This principle is a corollary to the rule that public entities have no duty to provide protection against flooding from natural causes.  (See e.g., Tri–Chem, supra, 60 Cal.App.3d 306, 132 Cal.Rptr. 142.)  Belair is thus predicated on natural forces exceeding design capacity where the project was designed to reduce the risk of harm from natural forces.

In contrast, the case before us involves land which was not naturally subject to flooding from lower-lying lands.   The public works were not designed to protect plaintiffs against a risk caused by natural forces.   Instead, the public works themselves created the risk.   Thus, the fact that design capacity was exceeded does not make the rainstorm the sole cause of the damage.   The trial court found the storm alone would not have caused the damage.   Thus, in this case the public works were at a minimum a substantial concurring cause, which is all that is needed to establish causation under Belair, supra, 47 Cal.3d at page 559, 253 Cal.Rptr. 693, 764 P.2d 1070.38

 This is true even as to Strawberry Manor, where the public works did not operate as intended.   As found by the trial court, the storm alone would not have produced the injury.   The risk of flooding, and the actualization of that risk, did not derive from the rainstorm alone.   The risk and resultant damage were caused by man, not nature.   The water which inundated Strawberry Manor would not have been there but for defendants' public works, which sought to protect lower-lying lands.

Thus, the storm was not the sole cause of plaintiffs' injuries, even though the storm exceeded the project's design capacity.   The public works were at a minimum a substantial concurring cause of the damage, which is sufficient to impose liability against defendants.  (Belair, supra, 47 Cal.3d at p. 559, 253 Cal.Rptr. 693, 764 P.2d 1070.)

Defendants and amici curiae point out the government has no duty to provide any particular level of flood protection, no duty to provide the same degree of protection to all properties, and no duty to provide any flood protection at all.  (Tri–Chem, supra, 60 Cal.App.3d 306, 132 Cal.Rptr. 142;  Shaeffer v. State of California (1972) 22 Cal.App.3d 1017, 1021, 99 Cal.Rptr. 861.)   They say imposition of liability in this case will require public entities to overbuild flood control projects and become insurers of private property.

However, we do not hold that the government must provide flood protection nor do we mandate a particular type or level of protection.   In the cases cited by defendants, the plaintiffs' lands were historically subject to flooding due to natural causes, and the public entities which undertook to protect those lands were held not liable because the evidence disclosed the flooding occurred in spite of, not because of, the flood control improvements.  (Tri–Chem, supra, 60 Cal.App.3d at p. 310, 132 Cal.Rptr. 142;  Shaeffer, supra, 22 Cal.App.3d at p. 1019, 99 Cal.Rptr. 861;  see also, Belair, supra, 47 Cal.3d at pp. 561–562, 253 Cal.Rptr. 693, 764 P.2d 1070.)   What defendants overlook is that in this case they created a risk that increased the servitude to plaintiffs' lands.   Therefore, the cited cases are inapposite.

Defendants claim they would be in a better position had the project failed (because Belair 's reasonableness standard would apply).   However, had the project failed and water flooded the areas the back levee and NEMD were built to protect—the lower-lying lands to the west and south—it makes perfect sense that defendants be judged under the reasonable conduct standard, because they would not have created the risk to the damaged lands.

RD 1000 argues it is not liable for any damage caused by Sutter County's closure of a gap in Sankey Road.   The contention is vague and fails to explain what RD 1000 is talking about.   In any event, the trial court found the “project contemplated closing the gap in the levee at Sankey Road․”  RD 1000 fails to show any ground for reversal based on closure of the gap in Sankey Road.

 We conclude defendants fail to show any reversible error regarding causation.39

III. Joint And Several Liability

Defendants and amici curiae contend defendants cannot be held jointly and severally liable.   As will appear, most of the contentions dispute liability, not the joint and several nature of the liability.   We find no basis for reversal.

 Joint liability is proper where multiple entities jointly participate in planning, design, maintenance, and operation of a public improvement.   Thus, in Talbott v. Turlock Irr. Dist. (1933) 217 Cal. 504, 19 P.2d 980, joint liability was imposed against an irrigation district and an improvement district for damages involving an irrigation ditch, where both districts were in joint charge of the public works.  (Id. at p. 506, 19 P.2d 980.)   The Supreme Court saw no reason for segregation of their liability.  (Ibid.)

Here, the trial court found in its statement of decision:  “The SRFCP is a cooperative Federal–State venture.   It is a State project whereby the State has delegated some duties to the Districts (RD 1000 and ARFCD).   The operation of the completed project is the sole responsibility of the State.   [Citation.]  The Districts have been created as agencies of the State for the more convenient handling of the details of this gigantic undertaking.   [Citation.]  The Federal government has contributed to the construction and helped finance the project but has required the State to hold it free and harmless from all claims due to the construction of the project․

“The 1953 MOU, section 4, confirms the State's obligation to operate and maintain all completed works of the SRFCP including those which had previously been constructed by the local entities.   The State may not claim an exemption from liability by entrusting or delegating its duty to any of the local districts.   The Districts and the State are joint participants in the project.

“All defendants have joined in the project and have substantially participated in the design, construction, operation, maintenance and financing of the improvements and have the duty to operate and maintain it pursuant to state and federal law.   The project works, flood control and real property interests of RD 1000 and ARFCD are owned jointly with the State.” 40

The court thus found the State and RD 1000 jointly and severally liable for the flooding north of Sankey Road.   As to Rio Linda and Strawberry Manor, the court found all three defendants—the State, RD 1000 and ARFCD—jointly and severally liable.

A. The State

 The State contends no substantial evidence supports the trial court's finding that the State was a substantial participant in the planning, design, construction and/or maintenance or operation of the flood control works.   The contention fails.

 The State has waived this argument by failing to acknowledge evidence favorable to the judgment.  (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881, 92 Cal.Rptr. 162, 479 P.2d 362;  Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1510, 234 Cal.Rptr. 779.)   Thus, the State entered the 1953 memorandum of understanding with the federal government, as authorized by Water Code section 8617, to give assurances to the United States that the State would maintain and operate the SRFCP in accordance with federal regulations.   The State Reclamation Board's general manager testified it is the State's responsibility to work together with the local districts to make sure the State fulfills its federally mandated assurances.

Under the heading contending there is no substantial evidence of the State's substantial participation, the State cites certain provisions of the Water Code (i.e., Water Code sections 12642 and 12657) for the asserted proposition that local agencies are responsible for maintenance and operation of the flood control works and must hold the State harmless.   However, aside from the State's violation of California Rules of Court, rule 15(a), by failing to set forth this argument in a discrete heading (see People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19, 32 Cal.Rptr.2d 762, 878 P.2d 521 [reviewing court may disregard undeveloped points not set forth as discrete contentions] ),41 the State fails to show that the statutes preclude liability in actions by third parties.

The State also argues the trial court erred in finding it liable on the theory that the local districts are agents of the State.   However, we need not address that issue, because the alternative finding of the State's substantial participation suffices to impose joint and several liability.

B. RD 1000

As we have explained in our discussion of Strawberry Manor, RD 1000 is not liable for the damage to Strawberry Manor.   Therefore, we consider RD 1000' s arguments only with respect to its liability for the damage to Rio Linda and North of Sankey Road.

 RD 1000 cites dictum in Locklin v. City of Lafayette, supra, 7 Cal.4th at p. 372, 27 Cal.Rptr.2d 613, 867 P.2d 724, for the supposed proposition that plaintiffs in inverse condemnation cases must prove proportionate liability of each public entity defendant.   However, Locklin is distinguishable because it did not involve a unified project;  it involved surface water drainage from several different kinds of projects—dedicated roads, culverts, storm drains and other types of public improvements.  (Id. at p. 341, 27 Cal.Rptr.2d 613, 867 P.2d 724.)

We conclude RD 1000 fails to show any error in imposition of liability for damage in Rio Linda and North of Sankey Road.

C. ARFCD

ARFCD and amici curiae argue there is no legal or evidentiary basis to hold ARFCD jointly and severally liable as a substantial participant in the project.   We disagree.

 ARFCD first contends it cannot be held jointly and severally liable for conditions that existed before ARFCD was created.   The only authority cited is Weck v. L.A. County Flood Control District [Weck I ] (1947) 80 Cal.App.2d 182, 181 P.2d 935, for the proposition that a public entity which takes over maintenance operations of existing improvements cannot be held accountable for the improvements constructed before it assumed responsibility.   However, as we have explained, Weck predates the Supreme Court's shift in focus in inverse condemnation cases from the common law to the Constitution.  (Albers, supra, 62 Cal.2d 250, 42 Cal.Rptr. 89, 398 P.2d 129.)  “It appears to follow inescapably from the principles of inverse condemnation liability [ ] that when the [defendant] is a public entity, such [a continuing] obligation to monitor does exist.”  (Locklin, supra, 7 Cal.4th at p. 379, 27 Cal.Rptr.2d 613, 867 P.2d 724, conc. opn. of Mosk, J.)

 ARFCD also argues there is no evidence it has any responsibility for flood control works located outside its territory and therefore should not be liable to the Rio Linda plaintiffs.   However, ARFCD does not dispute that it maintained and operated levees along the east bank of the NEMD and both sides of the American River, as found by the trial court.   Although the flooding of Rio Linda occurred north of ARFCD's territory, a substantial cause of that flooding, as found by the trial court, was the hydraulic dam which existed “at each end of the NEMD,” a locale within ARFCD's scope of participation.   Since ARFCD fails to acknowledge facts favorable to the judgment, its substantial evidence contention is waived.  (Foreman & Clark Corp., supra, 3 Cal.3d at p. 881, 92 Cal.Rptr. 162, 479 P.2d 362;  Niederer v. Ferreira, supra, 189 Cal.App.3d at p. 1510, 234 Cal.Rptr. 779.)

IV. Estoppel

RD 1000 contends the Barosso plaintiffs are estopped by a 1914 eminent domain judgment in favor of RD 1000 against the Barossos' predecessor in interest.   We disagree.

 The existence of an estoppel is generally a question of fact for the trier of fact, and ordinarily the trial court's determination is binding on appeal unless the contrary conclusion is the only one to be reasonably drawn from the facts.  (Albers, supra, 62 Cal.2d at p. 266, 42 Cal.Rptr. 89, 398 P.2d 129.)

 Here, the trial court found the terms of the eminent domain judgment prohibited RD 1000 from raising the back levee without also raising railroad and wing levees.   The back levee was so raised in 1956.   The trial court found it was not reasonably foreseeable in 1914 that RD 1000 would contribute to property damage by violating the judgment.  RD 1000 fails to show a contrary conclusion is the only one to be reasonably drawn from the facts.

We conclude RD 1000 fails to show any basis for reversal based on estoppel.

V. Standing

 RD 1000 contends plaintiffs Lee and Shirley Collier lack standing because a 1985 quitclaim deed to Mr. Collier's widowed mother inadvertently transferred all of the Collier plaintiffs' interest in the property.   We disagree.

The Colliers had intended to transfer only 11 1/212 acres and retain title to the remaining one-half acre where they have lived and paid taxes continuously since 1959.   The one-half acre was quitclaimed back to the Colliers in 1991.

 “[T]he universal rule appears to be that where property is purchased which is subject to pending condemnation proceedings and the deed conveying said property is silent as to the award money to be paid in the proceedings, said money belongs to and is payable to the purchaser.  [Citations.]”  (Brick v. Cazaux (1937) 9 Cal.2d 549, 554, 71 P.2d 588.)

Although Brick is a case of direct, rather than inverse, condemnation, we can think of no reason why its rule should not apply here.   Under Brick, the Colliers have standing to pursue and receive their share of the inverse condemnation recovery.

VI. Offset

 RD 1000 complains the trial court failed to apply settlement monies received from other defendants as offsets against the judgment.   The contention is waived by failure to cite any legal authority.  (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647, 199 Cal.Rptr. 72.)

We conclude defendants have failed to show any basis for reversal of the judgment.

DISPOSITION

The judgment is reversed insofar as it imposes liability on RD 1000 for damage in Strawberry Manor.   The judgment is otherwise affirmed.   Plaintiffs shall recover their costs on appeal.

I

Introduction

This case illustrates the folly and doctrinal futility of relying on labels to assess liability for inverse condemnation claims.   The problem is particularly acute where the claim results from the operation of a public facility designed to prevent or mitigate the effects of a natural disaster.   Earthquakes, hurricanes, fire, and flood are counted among the normal vicissitudes of life in certain regions and are not within the effective control of government.   Publicly financed efforts to prevent or ameliorate the ravages of nature are at best imperfect and at worst puny and useless.

When the forest fire leaps the firebreak, hurricane-driven winds batter down the seawall, or the river at flood stage crests above the levee, the resulting destruction may be a normal risk of land ownership.   But the existence of public works which arguably cause or increase the damage creates the potential for inverse liability.   The California Supreme Court sensibly concluded the question of public liability for flood control improvements, if it arises at all, should be determined by the reasonableness of the public entity's preventive measures rather than arbitrary and elusive common law classifications.  (Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 565–567, 253 Cal.Rptr. 693, 764 P.2d 1070.)

The trial judge in this case concluded Belair's reasonableness standard could be ignored because the government's conduct was intentional.   The majority agrees, concluding Belair's reasonableness test “does not apply where governmental flood control works intentionally divert water and cause flooding of upstream private property which was not subject to flooding from that source under natural conditions, ․”

Although Belair does not, by its terms, apply to claims of intentional damage, this case illustrates why the debate about intentional and unintentional conduct has little relevance.   In the area of flood control, intention tells us something about liability, but not very much.   In determining liability in flood control cases, courts must consider causation—when a system fails to function as intended and when the system functions perfectly but damage is caused by a storm exceeding the project's design capacity.   In the former case the court must consider reasonableness since the system is admittedly a substantial concurring cause of the damage;  in the latter, the storm constitutes an intervening cause which extinguishes the public entity's liability.

Defendants staunchly maintain the injury to plaintiffs' lands was unintended.   The damaged properties lie within the area the flood control project is designed to protect and the flooding occurred because storm waters exceeded the system's capacity.   Plaintiffs insist the mere presence of flood control structures subjects their properties to a flood threat which would not exist if the government had never made any effort to protect lower-lying lands.   Neither circumstance provides a basis for an automatic determination of liability.   Applying a reasonableness standard in flood damage cases does not mean the government always wins.   Ignoring reasonableness whenever the flood system intentionally diverts water virtually guarantees the government always loses.   The latter approach completely undermines Belair's emphasis on “public policy and common sense” as the basis of constitutional analysis.  (Bunch v. Coachella Valley Water Dist. (1989) 214 Cal.App.3d 203, 213, 262 Cal.Rptr. 513.)

The majority finds Belair is limited to its facts and does not establish “a rule of law that a flood control project becomes immune [from liability] when storm conditions exceed design capacity.”   I think the majority's view is unduly restrictive.  Belair's reasonableness standard is not about immunity;  it is about fairness.

To conclude, as the trial court does, that evidence about the system's design capacity and the severity of the storm event is irrelevant, deprives the public defendants of any defense and makes the taxpayers strictly liable—even in the absence of a substantial cause and effect relationship.   The emphasis on intentional conduct obscures difficult issues of causation.   In the absence of a serious consideration of design capacity, the fact finder's assumption of a causal connection between the initial diversion of water and the harm to plaintiff's property amounts to little more than post hoc ergo propter hoc.

II

The takings clause of the Fifth Amendment to the United States Constitution provides that “private property [shall not] be taken for public use without just compensation.”   Similarly, article I, section 19 of the California Constitution permits private property to be taken or damaged “for public use” only when just compensation is paid.   Inverse condemnation makes compensation available when property is taken or incidentally damaged by governmental action without reimbursement.  (Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 362, 27 Cal.Rptr.2d 613, 867 P.2d 724.)

Although the constitutional compensation requirement is considered a necessary restraint on the despotic exercise of absolute, arbitrary, and uncontrollable government power (Story, Commentaries on the Constitution of the United States (1987) § 933, pp. 663–664;  Chicago, B. & Q.R. Co. v. Chicago (1897) 166 U.S. 226, 237, 17 S.Ct. 581, 585, 41 L.Ed. 979, 985), courts have prudently recognized the takings clause “cannot be pressed to its grammatical extreme;  ․” (Tyson & Bro. United Theatre Ticket Offices v. Banton (1927) 273 U.S. 418, 446, 47 S.Ct. 426, 433, 71 L.Ed. 718, 729 [dis. opn. of Holmes, J.].)   There must be, in Justice Holmes's descriptive phrase, “some play in the joints” for the machinery of government to work.  (Ibid., Pennsylvania Coal Co. v. Mahon (1922) 260 U.S. 393, 412–416, 43 S.Ct. 158, 159–160, 67 L.Ed. 322, 325 [dis. opn. of Holmes, J.].)   Government as we know it could hardly exist if the Constitution prohibited taking any uncompensated action at the expense of private property.  (Ibid.)

The judicial system's struggle to define the proper scope of that play in the joints has produced a “disorderly, inconsistent, and diffuse” inverse condemnation case law characterized by “a formal—often circular and unenlightening—discussion of the meaning of the crucial constitutional terms.”  (Van Alstyne, Statutory Modification of Inverse Condemnation:  The Scope of Legislative Power (1967) 19 Stan.L.Rev. 727, 732 [hereafter Van Alstyne I].)   This is due, in part, to the amorphous nature of claims which arise under the theory of inverse condemnation.   Unlike affirmative eminent domain actions and cases involving deliberate destruction, most incidental damage claims involve subtle questions of intent which range from remotely anticipatable damage to clearly foreseeable but improbable harm.

From another perspective, the disorderly jurisprudence of inverse condemnation simply reflects the judiciary's attempts to carry out the constitutional design.   As Madison acknowledged, the great difficulty in framing a democratic government is “first [to] enable the government to control the governed;  and in the next place oblige it to control itself.”  (Madison, No. 51, The Federalist Papers (1961) 322.)   In trying to strike the appropriate balance between competing and sometimes contradictory concepts of community responsibility and government authority, judges have articulated and discarded various compensation theories.

The constitutional right to compensation is both broader and deeper than tort law or other private law analogs.  (Reardon v. San Francisco (1885) 66 Cal. 492, 505, 6 P. 317.)   No element of wrongdoing is required to justify compensation.   The framers of the takings clause sought to protect private property without regard to the decency of the state's intentions.  (Van Alstyne, Inverse Condemnation:  Unintended Physical Damage (1969) 20 Hastings L.J. 431, 495 [Van Alstyne II].)   Nevertheless, “just compensation” like the notion of “just price” contains a subtext of reciprocity.   The takings clause should be viewed more as a bulwark against unfairness than as a guarantee of the economic status quo.  (Sax, Takings and the Police Power (1964) 74 Yale L.J. 36, 57.)   It is not the fact of loss but the imposition of loss by unfair means which the takings clause seeks to prevent.  (Ibid.)  Thus, while wrongdoing may be irrelevant, the reasonableness of the governmental action is not.

Recently, courts have shown greater willingness to compensate for the full bundle of rights and privileges that comprises property ownership.  (Lucas v. So. Carolina Coastal Council (1992) 505 U.S. 1003, 1014–1015, 112 S.Ct. 2886, 2892–2893, 120 L.Ed.2d 798, 812;  Healing v. California Coastal Com. (1994) 22 Cal.App.4th 1158, 1171–1174, 27 Cal.Rptr.2d 758.)   Despite its long, tortuous, and erratic evolution, the emerging consensus favoring fair compensation seems constitutionally compelled.   Otherwise, a property owner who suffers damage would be paying more than his or her fair share for the community benefit.   Fairness—balancing the cost spreading objective against the risk of discouraging beneficial public improvements—is the touchstone of inverse condemnation liability.   Reasonableness is another way of describing this constitutional balancing act.   The determination of fairness necessarily includes consideration of the beneficial purposes of the government action, the reciprocal benefits to the individual property owner, and the availability of adequate alternatives.

Unlike tort law which seeks to tame the limitless reaches of foreseeability by assessing the actor's duty, resolution of inverse condemnation claims requires fidelity to constitutional language and a candid acknowledgement of legal policy choices.   More is required to state an inverse condemnation claim than an allegation the damage to private property resulted from a public entity's performance of a public purpose.  (See Electro–Jet Tool and Manufacturing Company, Inc. v. The City of Albuquerque (1992) 114 N.M. 676, 676, 845 P.2d 770, 773.)   Such a claim must be supported by (1) clear evidence of taking or damaging for public use (i.e., deliberate taking or damaging in order to accomplish the public purpose), (2) consideration of what constitutes just compensation (assessing risk and reciprocity), and (3) evaluation of the available alternatives (public benefit).

Thus, genuine emergencies constitute an appropriate and narrowly limited exception to the rule of general compensability.  (Customer Co. v. City of Sacramento (1995) 10 Cal.4th 368, 384–385, 41 Cal.Rptr.2d 658, 895 P.2d 900.)   In addition, recognizing the great potential for impeding construction and expansion of necessary and beneficial public works such as flood control facilities and dams, courts have concluded these unique circumstances demand a more flexible approach.  (Belair, supra, 47 Cal.3d at pp. 565–566, 253 Cal.Rptr. 693, 764 P.2d 1070;  Bunch v. Coachella Valley Water Dist., supra, 214 Cal.App.3d 203, 215, 262 Cal.Rptr. 513.)   In this context, the question is:  How can the takings clause be interpreted to provide maximum protection to private property without stifling necessary and beneficial public works and still achieve a fair distribution of the burdens of public improvements?   In short, “[w]hat kinds of legitimate expectations with respect to the allocation and utilization of private resources, both tangible and intangible, are sufficiently important to deserve judicial protection against otherwise legitimate forms of government interference?”  (Van Alstyne I, at p. 734.)

Balancing the constitutional purposes of the takings clause with competing considerations which caution against an open-ended absolute liability rule, the Supreme Court has articulated a test of reasonableness which logically applies to all inverse condemnation claims based on flood damage.  (Belair, supra, 47 Cal.3d at pp. 565–567, 253 Cal.Rptr. 693, 764 P.2d 1070.)   “ ‘Reasonableness, in this context, is not entirely a matter of negligence, but represents a balancing of public need against the gravity of private harm.’ ”   (Id. at pp. 565–566, 253 Cal.Rptr. 693, 764 P.2d 1070.)   Accordingly, a plaintiff's recovery in inverse condemnation should require proof that the damage was attributable to some unreasonable conduct on the part of the defendant public entity.  (Id. at p. 567, 253 Cal.Rptr. 693, 764 P.2d 1070.)

III

An analytical approach entirely dependent on the label attached to critical actions defeats any rational comparison of interests.   In that circumstance, liability turns on arbitrary, often unarticulated assumptions inherent in the classification process itself.

Nowhere is this embarrassment of labels more evident than in water damage cases where the public defendant's liability is determined by the peculiarities of private law rules governing interference with surface waters, flood waters, or stream waters.   Classifications familiar only in the arcane world of water law—the common enemy doctrine, the right to inflict damage exception, the natural watercourse rule, and the timing, intent, and direction of diversions of surface and stream waters—become critical factors in establishing or foreclosing liability.  (See, e.g., Youngblood v. Los Angeles County Flood Control Dist. (1961) 56 Cal.2d 603, 608, 15 Cal.Rptr. 904, 364 P.2d 840;  Archer v. City of Los Angeles (1941) 19 Cal.2d 19, 24, 119 P.2d 1.)

This case is a perfect illustration of the problem.   Here, the concept of “intent” contains too many unexpressed and unexamined assumptions to be a reliable gauge of liability.   Restatement Second of Torts section 8A defines “intent” to denote “that the actor desires to cause [the] consequences of his act, or that he believes that the consequences are substantially certain to result from it.”  (At p. 15.)   The act is intentional if the consequences are substantially certain;  reckless if the consequences are less than substantially certain;  and deemed ordinary negligence if the conduct only creates a risk that the result will follow.

Tort law generally presupposes an intentional wrongful act which, more or less directly, causes harm.   Thus, it is said that intended consequences cannot be too remote.  (Hart and Honoré, Causation in the Law (2d ed. 1985) p. 43.)   It is a mistake, however, to view inverse condemnation liability as dependent on actions otherwise considered to be intentional torts.

When the intentional act is lawful, generally beneficial and remote in time from the alleged harm, issues of intent, causation, foreseeability, and consequence become hopelessly tangled.   Under the tort law analogy, the purpose or desire of the actor is determinative;  but how and when the purpose is defined may depend on completely arbitrary or irrational assumptions.

For example, if the government's purpose in building a flood control facility is to prevent flooding and reclaim a large, fertile valley for agricultural use, it does not follow that flood damage to plaintiffs' property is the desired consequence of the government's act.   Only by assuming that flood damage to plaintiffs' property is a necessary element or a nearly certain result of any flood control effort is it possible to conclude the harm to plaintiffs' property is the desired result or substantially certain consequence of the government's intentional act.

If we apply the same standard to the plaintiffs' conduct, their decision to build or purchase homes in an area allegedly designed as a temporary retention basin was arguably a more proximate cause of the harm than the state's original decision to begin flood control.   If intention is dispositive and they believed severe flooding was substantially certain to occur, their conduct was reckless if not intentional.   Why then does the state's action give rise to taxpayer liability while the plaintiffs' reckless conduct is compensated?

Plaintiffs' counsel essentially argued diversion equals strict liability.   He claimed the situation which caused the ultimate damages was created in 1915—long before plaintiffs' improvements existed—when the government fooled with mother nature and diverted all the tributary streams from their natural watercourses and prevented all this water from getting out.

The trial judge appears to reach a similar conclusion.   The court concluded Belair does not apply where damage to private property occurred as a result of a flood control project which, operating as intended, dammed water, preventing its flowage across lower lands, and pumped water upstream causing injury to the upper landowners.   However, the court also found the “joint ‘design, construction, and maintenance of [the] flood control project ․ posed an unreasonable risk of harm to the plaintiffs, and such [unreasonable] design, construction and maintenance constituted a substantial cause of the plaintiffs' damages.’ ”   Finally, the court concluded even if the reasonableness standard of Belair applied, its requirement of proof of unreasonable acts is met “when a defendant places a dam around his land so that the historical drainage of water across his land can no longer occur and instead pumps water upstream and backs water up on his upstream neighbor without providing adequate methods to remove or protect from this water.”

Curiously, the court finds both the design and the operation of the flood control project “unreasonable” while simultaneously concluding that “whether or not the flows or elevations exceeded ‘design capacity’ is irrelevant.”

Stream diversions are integral components of coordinated flood control, land reclamation, and agricultural irrigation projects.   However counterintuitive it may seem, doing an act which will foreseeably be followed by a particular outcome does not make the intentional act the cause of the outcome.  (Hart, supra, at p. 466.)   Even an intentional act can have unintended consequences.  (Kenny, Intention and Purpose in the Law in Essays in Legal Philosophy, (University of California Press 1976) 146, 156.)

Moreover, when consequences result from a complex set of events, it is necessary to justify the selection of a single event as the cause of a particular outcome.   Often the event immediately preceding the effect is selected because its proximity lends a degree of explanatory force.   In this case, 70 years and countless other intentional acts separate the event (the initial diversion) from its alleged consequence (the flooding of plaintiffs' property).

When the intentional act is followed by “some striking natural phenomenon” to which the resulting harm could be attributed, the question becomes “wholly [one] of ‘policy’ calling for a decision as to what ought to be done in the particular case.”  (Hart, supra, at pp. 24–25.)   Thus, the question for the court should not be whether the government acted intentionally;  the question should be whether the risks underlying the diversion and a whole series of other intentional acts were reasonable.  (Van Alstyne II, at p. 502.)

That question becomes even more pertinent in light of the changes which took place during the seven decades after initial flood control efforts began.   The flood control system for the Sacramento River Basin begins above Shasta Dam and runs all the way to Rio Vista in the south.   Runoff is controlled by a series of flood control structures, including five dams (Shasta, Black Butte, New Bullards Bar, Oroville, and Folsom), five weirs (Moulton, Colusa, Tisdale, Fremont, and Sacramento), and two major bypasses (Sutter and Yolo).   The dams coordinate their releases to minimize flows downstream;  the weir and bypass system, located in the central and lower part of the flood control region, directs the reservoir releases and uncontrolled local runoff around the main population centers in the Sacramento Valley.

Portions of the project provide flood protection to certain areas within the City of Sacramento and Counties of Sacramento and Sutter.   The areas along the American River are protected by a project known as the American River Flood Control Project.   The American River Flood Control District includes areas south of Dry Creek and Del Paso Heights and extends southward into the City of Sacramento to control portions of the levees of the Sacramento River and the south bank of the American.   Reclamation District 1000 covers the area generally referred to as the Natomas Basin.

Plaintiffs' properties lie within the geographic boundaries of these comprehensive flood control works and are intended to be protected by them.   Indeed, a 1957 design memorandum of the Corps of Engineers, describing work to be completed on the back levees of Reclamation Districts 1000 and 1001, identifies a swath of land running from the southern portion of Sutter County to the northern edge of the Sacramento Metropolitan Area, including the area in which plaintiffs' homes are located, as specifically within the flood protection zones of the reclamation districts.   The design memo outlines and approves work to bring the back levees up to project standards.   The Corps concluded these improvements would provide “protection against a flood of standard project flood magnitude (estimated frequency of once in 200 years)” and noted this level of protection is “consistent with that afforded urban areas through the balance of the Sacramento River Flood Control Project.”   In short, plaintiffs' properties were afforded the same protection as any other property within the flood control zone as long as the Corps's hydrologic assumptions were met.

The statement of decision tacitly acknowledges that the project was not designed to divert water to the damaged properties.   Water was intentionally diverted from its natural drainage but it was diverted to canals and channels which ordinarily carried the diverted water into the rivers.   Only when “certain conditions”—presumably heavy rainfall and high flows into the rivers—create a hydraulic dam effect and impede the diverted runoff is the backwater effect a threat to upper-lying properties.

The trial court concludes, and the majority agrees, that this result proves the system was designed and intended to flood plaintiffs' properties.   These facts support an equally plausible alternative:  a system designed to provide comprehensive flood protection can be swamped by an extraordinary storm and, when its capacity is exceeded, fail to provide the same level of protection to all property within the project area.

The majority apparently rejects the latter explanation because the project intentionally diverted water from its natural drainage and “subjected plaintiffs' property to a servitude which would not otherwise exist.”   Thus, the reasoning revolves in a big circle reminiscent of an old Burns and Allen routine.1

IV

As the majority opinion correctly observes, Belair, supra, 47 Cal.3d 550, 253 Cal.Rptr. 693, 764 P.2d 1070, decided only the question of liability for unintended damage (id. at p. 554, 253 Cal.Rptr. 693, 764 P.2d 1070) and did not explicitly resolve the question whether a reasonableness standard applies in cases of intended damage.   However, in the flood control context, intention, like beauty, is often in the eye of the beholder.   The word “intentional” cannot do all the heavy lifting required by the majority's analysis.   The problem is not definitional.   It is conceptual.   As noted earlier, the majority's formulation of the issue does not distinguish between intentional acts, acceptance of known risks, and deliberate infliction of harm.   A policy decision deliberately to shift the risk of future loss to private property owners rather than absorb the risk as part of the cost of the improvement is probably compensable.   On the other hand, a decision to build an improvement which is incapable of preventing every foreseeable type of damage because it is technically impossible or fiscally prohibitive may not be.   Foreseeability is not the same as causation.   In this type of case, the severity of need for the project should be assessed in comparison with the available alternatives and the reciprocal benefits.  (Van Alstyne II, at pp. 491–492.)

In Belair the Supreme Court offered a uniform standard of liability, applicable to the entire spectrum of inverse condemnation cases arising from flood damage, which would permit this “equitable, and constitutional, balancing of the competing legal and public policy considerations present in such cases without requiring hypertechnical, and hopelessly contrived, distinctions as to the nature and source of the floodwaters or as to whether the floodwaters were intentionally ‘diverted’ to or from a particular place.”  (Bunch, supra, 214 Cal.App.3d at p. 213, 262 Cal.Rptr. 513.)   If the mere intent to provide flood control or to reclaim land for development is determinative, the equitable balancing envisioned by Belair becomes meaningless.

When the government acts comprehensively to implement a major flood control project, liability should not turn on such an idiosyncratic private law concept as diversion or common-law privilege.   To ensure a conscientious appraisal of the benefits and burdens of the public improvement and a careful balancing of the public and private interests at stake, more is required than a mechanical application of narrowly defined property rights.   Inverse liability involves questions of “relativity rather than classification” which “cannot be rationally resolved by a mere search for definitions.”  (Van Alstyne I, at p. 735.)

In Locklin v. City of Lafayette, supra, 7 Cal.4th 327, 27 Cal.Rptr.2d 613, 867 P.2d 724, the court said reasonableness is determined “by balancing the public benefit and private damage in each case.”  (Id. at p. 368, 27 Cal.Rptr.2d 613, 867 P.2d 724.)  Locklin endorses consideration of the following factors under the reasonableness test:  “(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.  [¶] ․ [P]laintiff must demonstrate that the efforts of the public entity ․ were not reasonable in light of the potential for damage posed by the entity's conduct, the cost to the public entity of reasonable measures to avoid ․ damage, and the availability of and the cost to the [property] owner of means of protecting that property from damage.”  (Id. at pp. 368–369, 27 Cal.Rptr.2d 613, 867 P.2d724.)   Those questions should certainly be asked in this case.

The trial judge concludes the project was designed and constructed with the intent to flood plaintiffs' property or that the flooding was foreseeable, but the court's conclusion begs the question.   It is not clear what the court deemed dispositive.   There seem to be only two possibilities:  (1) the court may have viewed the 70–year–old diversion as an intentional act giving rise to strict liability, or (2) it could have concluded that, in the absence of any massive physical failure of flood facilities, the damage to plaintiffs' property had to be part of the plan's design.

As a matter of law, neither conclusion would allow the court to ignore the reasonableness standard of Belair.   If the original “diversion” is the intentional act, the strict liability rule no longer applies (Locklin, supra, 7 Cal.4th at p. 367, 27 Cal.Rptr.2d 613, 867 P.2d 724) and the causation questions noted earlier remain unaddressed.   If, on the other hand, the court contends the system functioned perfectly, design capacity becomes critical in determining causation.   The project ceases to be a substantial contributing factor where it can be shown the damage would have occurred even though the system operated perfectly, i.e., where the storm exceeded the project's design capacity.  (Belair, supra, 47 Cal.3d at p. 560, 253 Cal.Rptr. 693, 764 P.2d 1070.)

By focusing solely on the original diversion and whether the government's conduct can be characterized as “intentional,” the trial court, ably abetted by the majority, resurrects discredited and irrelevant elements of private law to determine inverse liability and returns to the “circular and unenlightening” morass Belair's reasonableness standard sought to transcend.

Because the decision fails to answer critical questions about the actual cause of injury to these properties, including the properties in Strawberry Manor, I would reverse the judgment.

FOOTNOTES

1.   This action involves more than 400 plaintiffs who own approximately 150 parcels of real property.   By stipulation of the parties, the action was trifurcated, the issues of liability and proximate cause as to all plaintiffs were separately tried, and the parties stipulated to the recoverable amount of damages (approximately $600,000, plus $400,000 interest) as to 25 “representative” plaintiffs owning a dozen parcels of real property.   Judgment was entered in favor of the 25 representative plaintiffs, with a direction in the judgment that judgment “shall be subsequently entered” in favor of the remaining plaintiffs upon proof of damages to compensable interests (estimated at $10 million damages plus $10 million in interest) and a finding that special defenses do not bar liability.   Although damage issues remain as to the nonrepresentative plaintiffs, the one final judgment rule is not violated by appellate review of a judgment which leaves nothing to be decided between one or more parties and their adversaries.  (See Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 741, 29 Cal.Rptr.2d 804, 872 P.2d 143.)   The judgment in this case leaves nothing to be decided between defendants and the 25 representative plaintiffs.   Although our reference to “plaintiffs” in this opinion will refer only to the representative plaintiffs who are the subject of this appeal, our decision on the merits of the liability issues in this appeal will affect all 400+ plaintiffs.The representative plaintiffs who obtained a judgment in their favor are:  Julio T., Hazel H. and Michael Barosso;  George and Margaret Rosenberg;  Scott E. Baron;  Charles and Martha E. Jones;  Mark W. Watkins and Janet Watkins;  Abram White and Ruth Elaine White, individually and doing business as White Cleaning Specialists;  Lee W. and Shirley A. Collier;  Kenneth C., Nina J., Randall L. and Lisa Kellogg;  Robert E. and Madelyn R. Riggan;  Lawrence A., Carol A. and Carla M. Risse;  and Oystein A. and Amie K. Skeie.The trial court found representative plaintiff Alice F. Harris is not entitled to a judgment against any of the defendants, but the judgment which is the subject of this appeal does not mention her.   She is not a party to this appeal.

2.   We granted a request of the Association of California Water Agencies to file an amici curiae brief in support of the American River Flood Control District.

3.   Other than ARFCD's territory, it appears the levees on the east side of the NEMD are not SRFCP project levees.

4.   The United States Bureau of Reclamation operates Folsom Dam.

5.   A “hydraulic dam” occurs when the water itself acts as a dam, preventing water from flowing out of the channel.

6.   “Backwater” is water backed up or retarded in its course as compared with its normal or natural condition of flow.   It refers to the consequences upstream from a hydraulic dam downstream.

7.   North of Sankey Road, water in the NEMD overtopped the non-project railroad levee on the east side of the NEMD (which apparently was lower than the project levee on the west side of the NEMD).   In the Rio Linda area, south of Sankey Road, it appears the flooding was from overflow of Dry Creek and other streams and surface waters which were unable to flow their natural course to the west due to the hydraulic dam and backwater in the NEMD.   Defendants do not make an issue of the distinction in the manner of flooding.   In the absence of argument by defendants, we consider it unnecessary to dwell on the distinction.   We note, however, that a federal court in a case involving the federal Takings Clause (U.S. Const., 5th Amend.) held “it was immaterial whether the flooding caused by the Government is from a backwater effect or by the prevention of proper drainage” where the prevention of proper drainage was a natural consequence of the government's action.  (Barnes v. United States (1976) 538 F.2d 865, 210 Ct.Cl. 467.)

8.   The parties cite evidence the figure was $13.4 billion.

9.   “Freeboard” is an extra margin of safety to protect against errors in calculation and unknown factors.

10.   Accordingly, defendants' reliance on the judge's comments questioning the sufficiency of evidence is unavailing.

11.   The trial court found, and the parties do not dispute, that Belair applies to the system failure in Strawberry Manor, which we will discuss separately, post.We note defendants' briefs contain arguments lacking factual and/or legal analysis.   Where an appellant asserts a point in a brief without factual or legal support, it is deemed to be without foundation and requires no discussion by the reviewing court.  (E.g., Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647, 199 Cal.Rptr. 72.)   This is particularly so in a case of this magnitude—with more than 7,000 pages of reporter's transcript, 7,000 pages of clerk's transcript, hundreds of exhibits and 330 pages of appellate briefs.   We may also disregard arguments that do not comply with California Rules of Court, rule 15(a), which requires separate headings for each point.  (See Farr v. Bramblett (1955) 132 Cal.App.2d 36, 47, 281 P.2d 372;  Superior Sand Co. v. Smith (1937) 19 Cal.App.2d 166, 64 P.2d 1149.)Finally, we disregard new arguments made for the first time in the reply briefs (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8, 265 Cal.Rptr. 788), such as RD 1000's argument that this was one-time damage, which cannot form the basis for an inverse condemnation claim.

12.   Plaintiffs argue this lawsuit was filed before Belair was decided, and Belair should not apply retroactively.   However, we agree with Bunch v. Coachella Valley Water Dist. (1989) 214 Cal.App.3d 203, 216, 262 Cal.Rptr. 513, that there is no reason to except this type of case from the general rule of retroactive application of judicial opinions.   Moreover, we note Belair was decided before the trial of this case, and therefore Belair was extensively briefed and litigated at trial.Belair was decided under the state Constitution.   The statement of decision in this case makes no mention of the federal Constitution.   Plaintiffs nevertheless argue the judgment may be sustained under the Fifth Amendment of the federal Constitution (which was pled in the complaint), because we must infer the trial court found for plaintiffs under the federal Constitution, and defendants' silence on this issue in their opening briefs assertedly constitutes a concession that the judgment is sustainable on federal grounds.   In their reply briefs, the State and RD 1000 oppose consideration of the federal Constitution.We decline to sustain the judgment on federal grounds.   Plaintiffs fail to state what findings they wish us to infer under the federal standard.   They provide no analysis of the elements needed to prove a taking under the federal Constitution, nor do they show the federal Constitution affords landowners greater protection than the state Constitution.   Plaintiffs merely cite three federal cases in a footnote, with bracketed summaries which have no apparent relation to the present controversy.

13.   The more recent case of Locklin, supra, 7 Cal.4th 327, 27 Cal.Rptr.2d 613, 867 P.2d 724, covers much of the same inverse condemnation background.   However, Locklin did not involve a flood control project.   It involved landslide damage caused by erosion of creek banks attributed to public improvements that increased surface runoff.  (Id. at pp. 339–340, 27 Cal.Rptr.2d 613, 867 P.2d 724.)  Locklin held the privilege to use a natural watercourse for drainage of surface waters from improved public property and to make storm drainage improvements was a conditional, not an absolute privilege.   Therefore, public entities could be held liable but only if they acted unreasonably.  (Id. at p. 366, 27 Cal.Rptr.2d 613, 867 P.2d 724.)   We note Locklin involved damage to downstream owners, who were already subject to surface water runoff, unlike the instant case where defendants created a risk to which plaintiffs' properties were not subject under natural conditions.

14.   The Supreme Court has more recently said the constitutional provision was originally construed as providing a broader right of recovery against a government entity for damage to private property than that available in an action against a private party, except in the “arcane world of water law [where] the theory prevailed that if a private party had the right to inflict the damage, the government could assert the same immunity.” (Locklin v. City of Lafayette, supra, 7 Cal.4th at p. 362, 27 Cal.Rptr.2d 613, 867 P.2d 724.)  Locklin acknowledged Albers was not a water law case but described Albers as “giv[ing] new life” to the original construction.  (Locklin, supra, 7 Cal.4th at p. 364, 27 Cal.Rptr.2d 613, 867 P.2d 724.)

15.   In Belair the Supreme Court refined the “proximate cause” element, noting Albers “contained the seeds of confusion through its combination of ‘proximate cause’ terminology with the elimination of foreseeability as an element of inverse condemnation.”  (Belair, supra, 47 Cal.3d at p. 559, 253 Cal.Rptr. 693, 764 P.2d 1070.)   The causation element is restated with greater precision in terms of “substantial causation.”  (Ibid., citing Van Alstyne, Inverse Condemnation:  Unintended Physical Damage (1969) 20 Hastings L.J. 431, 436.)

16.   It is not clear why the Supreme Court in dictum subsequently referred to acts “to prevent future flood damage” as an example of the exercise of police powers.  (Locklin, supra, 7 Cal.4th at p. 363, 27 Cal.Rptr.2d 613, 867 P.2d 724.)   The Belair court did not decide that flood control case on the basis of police powers.   The Supreme Court has most recently reaffirmed that the police power comes into play in connection with direct taking or damaging of property only when action is taken under emergency conditions, to avert impending peril.  (Customer Co. v. City of Sacramento (1995) 10 Cal.4th 368, 384, 41 Cal.Rptr.2d 658, 895 P.2d 900.)   Defendants do not assert their actions were an exercise of police power.

17.   The Supreme Court has more recently characterized Belair as eliminating the Archer exception.  “Belair thus signalled not the continuation of the Archer exception, but its demise.   It survived only vestigally in the limitation of inverse condemnation liability for public flood control projects in natural watercourses to damage resulting from a public entity's unreasonable conduct.   Thereafter, a public agency that acted unreasonably in regard to its use or alteration of a natural watercourse might be liable in inverse condemnation for downstream damage.”  (Locklin, supra, 7 Cal.4th at p. 366, 27 Cal.Rptr.2d 613, 867 P.2d 724.)

18.   At oral argument, defendants State of California and RD 1000 agreed that if a public entity intentionally diverts flood waters to private property, Belair's reasonableness test does not apply.

19.   The dissenting opinion in Belair read the majority opinion as “intimat[ing]” that a qualified privilege would apply in all flood control cases.  (Belair, supra, 47 Cal.3d at p. 572, fn. 1, 253 Cal.Rptr. 693, 764 P.2d 1070, dis. opn. of Mosk, J.)   Defendants also cite dictum in a concurring opinion that “in Belair [ ] we held that strict liability was not appropriate in an inverse condemnation action for property damaged by public flood control projects.”  (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 240, 285 Cal.Rptr. 99, 814 P.2d 1341, conc. opn. of Baxter, J. [tort action alleging rape by police officer].)

20.   In a footnote, the State appears to suggest the evidence does not support the trial court's finding that plaintiffs' properties would not have flooded but for the public works.   Plaintiffs appear to concede there was some evidence that without the project three homes would have received some water, a small fraction of what they actually received.   Plaintiffs point out the trial court found the water diverted by defendants would not have flooded plaintiffs' properties in the absence of the project.   As we note in our discussion of causation, post, defendants may be liable even if some water would have entered the homes in the absence of the public works, as long as the public works were a substantial concurring cause of damage.  (Belair, supra, 47 Cal.3d at pp. 556–560, 253 Cal.Rptr. 693, 764 P.2d 1070.)

21.   The State refers to plaintiffs' properties as being lands which receive flood protection from the project.   However, the evidence cited by the State does not show the public works were designed to protect the two geographical areas with which we are concerned—(1) North of Sankey Road and (2) Rio Linda.  (The third geographical area—Strawberry Manor—presents a different situation because there a system was designed to protect the territory but failed.   We treat Strawberry Manor separately, post. )Thus, the State cites a 1957 Corps of Engineers design memorandum which said with reference to the NEMD:  “The adopted project flood plane ․ provides full protection to the urban areas on both sides of the canal from flood conditions of standard project flood magnitude (estimated frequency of once in 200 years).”   However, it appears this document, which on its face specifies only “urban” areas, was referring to the ARFCD area where Strawberry Manor is located.   Thus, plaintiffs presented evidence that Strawberry Manor was to be afforded some protection by the project, but the other two geographical areas—(1) North of Sankey Road and (2) Rio Linda—were not.   Plaintiff's expert testified “those properties [between Dry Creek and the Cross Canal] saw additional flooding because they weren't included in the protective works.”   He also testified “the plaintiffs north of Dry Creek were impacted by the system without any portion of the system being designed to afford them protection.   The people in Strawberry Manor didn't have that condition.   They were affected by the system, but they had a part of the system that was there that was supposed to give them protection.”   Additionally, the 1957 design memorandum recognized there were undeveloped lands above the project that were being subjected to a risk of flooding if flows exceeded those computed.   That plaintiffs' lands fall within the enormous area encompassed by the entire SRFCP does not preclude inverse condemnation liability for damage caused by particular works within the SRFCP which were not designed to protect plaintiffs' lands.  (See e.g., Beckley v. Reclamation Board (1962) 205 Cal.App.2d 734, 737, 23 Cal.Rptr. 428.)As further support for the proposition that the project was designed to protect plaintiffs' properties, the State also cites evidence that wing levees were built.   However, the exact location of the wing levees is not clear from the record citations provided by the State.   Moreover, the State in its reply brief (responding to plaintiffs' argument that wing levees should have been raised higher) states the wing levees “were never included as part of the project.”   The State cites the same evidence we discuss in our substantial evidence analysis, post, showing that in 1956 it was determined that levees on the east side of the NEMD would not be part of the SRFCP, even though it was recognized that they were important in order to protect land east of the NEMD from the backwater created by the project.We note this case involves complex facts and voluminous technical exhibits and testimony.   As the parties with the burden on appeal, defendants have done little to assist this court in distilling the essential facts and have preferred to rest on their blanket contention that Belair applies to all flood control cases.We conclude there is substantial evidence that the public works which caused the damage were not designed to protect plaintiffs' property in Rio Linda or North of Sankey Road.   As to the defense argument that there should be no liability because conditions exceeded design capacity, we address that matter, post.In a petition for rehearing, ARFCD (with joinder by the other defendants) argues that this court has engaged in fact finding and speculation by concluding that Rio Linda and North of Sankey Road were not urbanized in 1957.   We disagree.   The State submitted that the 1957 design memorandum was evidence that plaintiffs' properties were protected by the project.   However, the document on its face was limited to “urban” areas.   It was thus defendants' burden to show that this characterization applied to all three geographical areas at issue in this case.   Defendants failed to do so.

22.   Alternatively, it could be said that it is unreasonable as a matter of law for flood control agencies to create a risk of flooding upstream property, which would not be subject to such flooding under natural conditions, in order to protect other property, without paying compensation.

23.   The Van Alstyne article cited by the Belair court states:  “The necessity for the pleading and proof of fault in the obstruction cases, while no fault is required for liability in the diversion cases, has caused a certain amount of confusion in the California case law.   It is obvious that many kinds of stream obstructions may cause a diversion of stream waters, and, conversely, diversion normally requires an obstruction of some kind.   Whether fault must be shown by the injured property owner thus depends, to some extent, upon how the facts are classified.   A deliberate program intended to alter the course of a stream for a public purpose is ordinarily treated under the ‘diversion’ rubric, while unintended flooding is usually attributed to a negligently planned project that creates an ‘obstruction.’   The distinction, however, is not a sharply defined one, and plaintiffs have sometimes sought recovery alternatively on both theories while pleading the same facts.”  (Van Alstyne, Unintended Physical Damage, supra, 20 Hastings L.J. at pp. 460–461, fns. omitted.)

24.   In their reply briefs, the State and RD 1000 argue the water which caused the damage in this case was “flood water,” not stream and surface water, as referenced in the statement of decision.   In the “arcane area of water law,” rights often depend upon classification of water as surface water, flood water, or stream water.  (Locklin v. City of Lafayette, supra, 7 Cal.4th at pp. 344–345, 27 Cal.Rptr.2d 613, 867 P.2d 724.)  “ ‘Water diffused over the surface of land, or contained in depressions therein, and resulting from rain, snow, or which rises to the surface in springs, is known as “surface water.”   It is thus distinguishable from water flowing in a fixed channel, so as to constitute a watercourse, or water collected in an identifiable body, such as a river or lake.   The extraordinary overflow of rivers and streams is known as “flood water.”  [ ]’ [Citation.]”  (Locklin, supra, 7 Cal.4th at p. 345, 27 Cal.Rptr.2d 613, 867 P.2d 724.)   However, “the purposes of the Constitution, rather than the rules ‘emanating from the complex and unique province of water law,’ must fix the extent of a public entity's responsibility.”  (Belair, supra, 47 Cal.3d at p. 567, 253 Cal.Rptr. 693, 764 P.2d 1070.)   Moreover, it is clear the public works at issue in this case intentionally diverted stream and surface waters, as found by the trial court.

25.   Belair observed Van Alstyne's suggestion that the development of this principle reflected the interest of property owners who developed land in justifiable reliance on existing conditions.  (Belair, supra, 47 Cal.3d at p. 564, fn. 4, 253 Cal.Rptr. 693, 764 P.2d 1070, citing Van Alstyne, supra, 20 Hastings L.J. at p. 458.)   However, Van Alstyne continued on to state that generally the rule of liability for diverting stream waters is applied in a strictly formal fashion, without analysis and weighing of the respective interests.  (Van Alstyne, supra, 20 Hastings L.J. at p. 459.)

26.   Code of Civil Procedure, section 632 provides that “written findings of fact and conclusions of law shall not be required.   The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial․”

27.   The State believes the trial court found an intentional diversion but argues the project did not intentionally divert water onto plaintiffs' property.ARFCD appears to concede the trial court found defendants intended to flood plaintiffs' properties but argues no evidence supports that finding.   Thus, ARFCD begins its discussion:  “The Trial Court ruled that all of [plaintiffs'] flood damages, with the exception of those [plaintiffs] living in Strawberry Manor, were intentionally caused by the Project.”   ARFCD then argues:  “There is no evidence to support the Trial Court's finding that the Project was designed and constructed with the intent to flood [plaintiffs'].”   ARFCD then asserts it “requested the Trial Court to specify the basis for this and other findings in ARFCD's Request for Statement of Decision,” but “no such references were provided in the Statement of Decision, as noted in ARFCD's Objections to Proposed Statement of Decision and Proposed Judgment.”  (Fns. omitted.)   ARFCD cites Code of Civil Procedure, section 634, which precludes an inference that the trial court found in favor of the prevailing party as to controverted issues upon which the statement of decision is silent or ambiguous, where the omission or ambiguity was brought to the trial court's attention.It thus appears ARFCD complains the statement of decision was deficient not in failing to make unambiguous findings but in failing to cite evidence in support of the findings.   However, in a statement of decision a statement of ultimate facts is sufficient;  evidentiary facts are not required.  (7 Witkin, Cal. Procedure (3d ed. 1985) Trial, § 403, pp. 406–407.)   Moreover, “the trial court need not address each question listed in a party's request.   All that is required is an explanation of the factual and legal basis for the court's decision regarding such principal controverted issues at trial as are listed in the request.”  (Nunes Turfgrass, Inc. v. Vaughan–Jacklin Seed Co. (1988) 200 Cal.App.3d 1518, 1525, 246 Cal.Rptr. 823.)   Here the statement of decision clearly explained the factual basis for the court's decision, including the facts that the public works created a hydraulic dam and backwater effect, and defendants had notice that these effects existed and subjected plaintiffs' land to flooding.   The trial court also found defendants effectively appropriated plaintiffs' property as a temporary retention basin to protect other property.   Nothing more was required.

28.   Despite this claim, ARFCD's brief contains admissions that the dangers were known.

29.   “The relationships of ends, means, causes and knowledge can vary considerably.   Professor Kenny charts 16 possible relationships involving the circumstance in which an agent does A thereby causing B, five of which, involving the doing of A intentionally, are of interest here.   (See Kenny, Intention and Purpose in Law, Essays in Legal Philosophy (1968) pp. 151–154.)  ‘1. An agent knows he is doing A, wants to do A, knows that he is doing B by doing A, and wants to do B․  [¶] 2. The agent knows that he is doing A, knows that he is doing B by doing A, and wants to do B, but does not want to do A․  [¶] 3. The agent knows he is doing A and wants to do A and knows he is doing B by doing A but does not want to do B․  [¶] 5. The agent knows that he is doing A and wants to do A and wants to do B, but though by doing A he is doing B he does not know this․  [¶] 9. The agent knows and wants himself to be doing A, but neither knows nor wants himself to be doing B by doing A.’   In all of these cases it can be said that the agent intends to do A.   The ordinary cases of doing A in order to do B, i.e., intending to use A as a means to B, are 1. and 2.   Cases 3 and 5 subsume cases in which the common law ascribes an intent to do B to the agent․  Case 9 leads to the problems involving recklessness.”  (In re Stonewall F. (1989) 208 Cal.App.3d 1054, 1061, fn. 6, 256 Cal.Rptr. 578.)

30.   “Flood plane” means the position occupied by the water surface of a stream during a particular flood or, loosely, the elevation of the water surface at various points along the stream during a particular flood.

31.   In a petition for rehearing, ARFCD argues for the first time (with joinder by the other defendants) that the 1956 documents are irrelevant to ARFCD, because some of the documents referred to backwater stemming from the Sacramento River, and it is assertedly undisputed that the flooding in Rio Linda stemmed from the American River.   ARFCD thus appears to conclude the 1956 documents reflected concern only about the area North of Sankey Road.However, this is not the only inference to be drawn from the 1956 documents.   Although some of the 1956 documents referred to the Sacramento River, evidence was presented that the American River is affected by the Sacramento River and is subject to backwater flooding from the Sacramento River, which affects the American River flood plain.   Thus, a 1963 Corps of Engineers design memorandum, in discussing the American River, stated the flood plain was “subject to more prolonged flooding by backwater from the Sacramento River․”  The 1963 design memorandum also tabulated the “effect of backwater from Sacramento River on water surface elevations in the American River flood plain near the mouth of the river․”We recognize, as noted by ARFCD, that one of the 1956 documents made reference to the opening of the Cross Canal as permitting backwater flooding.   However, this reference, which appeared in only one of the several 1956 documents, does not compel an inference that the only concern was the area North of Sankey Road.Where evidence is subject to opposing inferences, “it must upon a review thereof be regarded in the light most favorable to the support of the judgment.”  (Mah See v. North American Acc. Ins. Co. (1923) 190 Cal. 421, 426, 213 P. 42;  9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 288, p. 300.)Moreover, although all of the foregoing evidence, along with the 1956 documents, was cited in respondents' brief on appeal, none of the defendants made this attack on the evidence in their reply briefs or at oral argument.   Reviewing courts need not consider points raised for the first time in a petition for rehearing.  (Prince v. Hill (1915) 170 Cal. 192, 195, 149 P. 578;  9 Witkin, op. cit. supra, § 684, p. 656.)ARFCD also points out in its petition for rehearing that the final 1956 document indicated the Corps of Engineers agreed to make additional improvements.   However, ARFCD does not state what those improvements were.   A 1985 State Reclamation Board map shows the only project levees on the east side of the NEMD are those around ARFCD's territory—territory which is not at issue in this portion of our discussion.In its petition for rehearing ARFCD also argues, with respect to RD 1000's 1956 letter discussing a need to obtain flowage rights across the “low lands east of” RD 1000, that plaintiffs never introduced evidence identifying what land was at issue.   Again, this is a new attack raised for the first time in the petition for rehearing, even though the evidence was cited by plaintiffs in their respondents' brief on appeal.   We therefore need not consider the matter.  (Prince v. Hill, supra, 170 Cal. at p. 195, 149 P. 578;  9 Witkin, op. cit. supra, § 684, p. 656.)

32.   This evidence refutes the defense assertion that it was assumed the project would fail if design capacity were exceeded.On petition for rehearing, defendants argue for the first time that the 1957 document was not referring to backwater flooding from the NEMD but was referring to overflooding of upstream creeks before the water even reached the NEMD.   Defendants quote the following portion of the 1957 document:  “The Condition A flows are conveyed from the foothill line to the canal by many relatively shallow stream channels.   Any material increase in these flows beyond those computed would cause extensive overbank flooding on undeveloped lands above the project and only an insignificant net increase in inflow to the project.”  (Italics added.)   According to defendants, the term “these flows” refers to flows in the shallow upstream channels.   However, the term “these flows” grammatically refers to the “Condition A flows” in the preceding sentence.  “Condition A flows” encompass a measurement of flows in the NEMD, as is apparent from a reading of the document as a whole.   Thus, the passage quoted by defendants appears in the middle of a paragraph which begins by describing Condition A and B flows as computations of flows “along” the NEMD.   Had the document intended to say that upstream creeks would overflow before the water reached the NEMD, there would be no need for the final phrase in the quoted passage to qualify that the overbank flooding would cause only an insignificant “net” increase in inflow to the project.   The term “net” suggests that some water comes in, some goes back out.At most, the evidence is susceptible to conflicting inferences, and we adopt the inference favorable to the judgment.  (Mah See v. North American Acc. Ins. Co., supra, 190 Cal. at p. 426, 213 P. 42;  9 Witkin, op. cit. supra, § 288, p. 300.)   Moreover, we note defendants never made this attack on the evidence in their reply briefs, even though the evidence was cited by plaintiffs in their respondents' brief on appeal.   That default alone is sufficient reason for rejection of this belated attack.   (Prince v. Hill, supra, 170 Cal. at p. 195, 149 P. 578;  9 Witkin, op. cit. supra, § 684, p. 656.)

33.   In their reply briefs, the State and ARFCD ignore the evidence favorable to the judgment cited in plaintiffs' brief.  RD 1000 acknowledges the evidence cited in plaintiffs' brief but claims the evidence did not convince the trier of fact because the statement of decision assertedly contained no finding that defendants knew plaintiffs' properties would be or were substantially certain to be flooded as a result of the project.In its statement of decision, the trial court found “defendants at all times knew or should have known of the risk to plaintiffs caused by the SRFCP.”   This finding is ambiguous with respect to whether defendants actually knew of the risk.   Yet RD 1000 did not object to the statement of decision on this basis, and, hence, has waived the ambiguity.  (Code Civ.Proc., § 634;  In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1132, 275 Cal.Rptr. 797, 800 P.2d 1227.)

34.   RD 1000 also cites Tri–Chem, Inc. v. Los Angeles County Flood Control Dist. (1976) 60 Cal.App.3d 306, 313–314, 132 Cal.Rptr. 142, on the question of a continuing duty.   However, the point there was that since the government had no duty to provide any flood protection, its provision of protection did not impose upon it a continuing duty to augment the level of its protection to meet changing conditions.  (Ibid.)  That case is inapposite, because here the issue is a continuing obligation to monitor a risk created by the public entities.

35.   Defendants note negligence was not an issue in this case, which proceeded to trial on inverse condemnation only.   The State and ARFCD argue the trial court's reference to negligence displays the court's confusion between two distinct legal standards.   Assuming negligence is a lesser standard, as defendants contend, the court's additional finding of negligent conduct does not detract from its findings of unreasonable conduct, which is all that is needed to affirm the judgment, nor does it demonstrate legal error.The State claims there was an oral agreement for the City of Sacramento to close the gap.   However, City representatives testified they were unaware of any oral agreement.

36.   In a petition for rehearing, ARFCD (with joinder by the other defendants) faults this court for failing to analyze the question of reasonableness under the factors set forth in Locklin v. City of Lafayette, supra, 7 Cal.4th at pp. 368–369, 27 Cal.Rptr.2d 613, 867 P.2d 724.   However, in their briefs on appeal, defendants did not contend the lack of a closure plan was reasonable.   Rather, defendants maintained the lack of a closure plan was not the proximate cause of damage.   Thus, no further analysis is required.

37.   Plaintiffs dispute that design capacity was exceeded.   We will assume for the sake of argument that it was.

38.   Thus, defendants may be held liable even if some water would have entered plaintiffs' homes in the absence of the public works, as long as the public works were a substantial concurring cause of damage.   (Belair, supra, 47 Cal.3d at pp. 556–560, 253 Cal.Rptr. 693, 764 P.2d 1070.)

39.   On April 18, 1995, plaintiffs filed in this court a motion for judicial notice of documents assertedly related to the causation issue—(1) a June 1993 Resolution of the Sacramento Area Flood Control Agency (SAFCA), and (2) a January 1991 Joint Exercise of Powers Agreement reflecting that RD 1000 and ARFCD are members of the SAFCA.   Plaintiffs concede we have discretion whether to grant their request.  (Evid.Code, § 459.)   We deny the motion for judicial notice as tardy.  (See Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal.App.3d 341, 368, 133 Cal.Rptr. 42.)   It was not filed until almost two years after the Resolution was adopted and three months after the January 17, 1995, completion of briefing in this appeal.   Moreover, the documents are unnecessary to affirm the judgment in plaintiffs' favor.

40.   The trial court also found defendants jointly and severally liable under Government Code, sections 895 and 895.2, which address joint and several liability between public entities who enter into a joint powers agreement.   The State and RD 1000 contend these statutes are inapplicable here for various reasons, e.g., the statutes are limited to tort liability.   ARFCD argues it never entered a joint powers agreement.   We have no need to address the matter because we will conclude the imposition of joint and several liability may be sustained without resort to those statutes.

41.   The State raises other Water Code provisions elsewhere in its brief in an argument which appears under a heading broadly attacking the trial court's conclusion of joint and several liability but which in substance attacks only the trial court's conclusion that local districts are agents of the State.   As we indicate herein, we need not address the question of agency.

1.    Gracie:  Gentlemen prefer blondes.George:  How do you know that?Gracie:  A gentleman told me so.George:  How did you know he was a gentleman?Gracie:  Because he preferred blondes.

SIMS, Acting Presiding Justice.

DAVIS, J., concurs.

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