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Court of Appeal, Sixth District, California.

Martin AALSO, et al., Plaintiffs and Appellants, v. LESLIE SALT CO., Defendant and Respondent.

No. H005388.

Decided: February 27, 1990

Frank J. Langben, Fernando F. Chavez, Fernando Chavez Law Corp., San Jose, Frederico Sayre, Sayre, Moreno, Purcell & Boucher, Los Angeles, for plaintiffs and appellants. Patrick Flinn, Alan Cope Johnston, Morrison & Foerster, Palo Alto, for defendant and respondent.

In early 1983, the City of Alviso was flooded when Coyote Creek overflowed in heavy rains.   In the aftermath of this disaster, approximately eight hundred named plaintiffs sued the City of San Jose, the Santa Clara Valley Water District, the County of Santa Clara, and the State of California.   Appellants, representative plaintiffs referred to in the trial court as the Aalso group, ultimately settled their claims against the city and the water district for $7,330,000.

Appellants also sued, among others, respondent Leslie Salt Company.   Respondent moved for summary judgment, or in the alternative, for a summary adjudication of the issues.   The trial court granted the motion and rendered judgment in favor of respondent on November 1, 1988, after concluding as a matter of law that respondent had no legal duty to take affirmative steps to ameliorate the flooding.   Appellants' motion for a new trial and for reconsideration was denied on December 20, 1988.   This appeal ensued.

On appeal, appellants argue that the reasonableness of respondent's actions was a triable issue of fact, and alternatively that respondent had an affirmative duty to take action to prevent harm to appellants.   In addition, they argue that they were prejudiced by a premature discovery cut-off.   We disagree, and consequently affirm the judgment.


Summary judgment is proper only when the evidence in support of the motion establishes there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law.  (Code of Civ.Proc., § 437c.)   “Since a summary judgment motion raises only questions of law regarding the construction and effect of the supporting and opposing papers, we independently review them on appeal, applying the same three-step analysis required of the trial court.  (Code Civ. Proc., § 437c ․)”  (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064, 225 Cal.Rptr. 203;  Gray v. San Francisco Gun Exchange (1989) 207 Cal.App.3d 151, 154, 254 Cal.Rptr. 581.)  “First, we identify the issues framed by the pleadings․”  (AARTS Productions, Inc. v. Crocker National Bank, supra, 179 Cal.App.3d at p. 1064, 225 Cal.Rptr. 203.)   Second, we ascertain which, if any, material facts are truly undisputed by comparing the separate statements of fact and supporting evidence in the motion, the opposition, and in any reply.  (Code Civ.Proc., § 437c, subd. (b).)  Third, disregarding disputed facts, we consider whether the motion has “establish[ed] a complete defense or otherwise show[n] there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading.  [Citations.]”  (AARTS Productions, Inc. v. Crocker National Bank, supra, 179 Cal.App.3d at p. 1064, 225 Cal.Rptr. 203.)  “Doubts as to the propriety of the summary judgment are resolved against granting the motion.  [Citations.]”  (Fowler v. Varian Associates, Inc. (1987) 196 Cal.App.3d 34, 37, 241 Cal.Rptr. 539;  Andersen v. Pacific Bell (1988) 204 Cal.App.3d 277, 281, 251 Cal.Rptr. 66.)   We examine the record before us in light of this procedure.

Appellants argued to the trial court, as they do here, that had respondent's levee system not been in place, the Coyote Creek floodwaters would have followed “pre-existing natural drainage paths” to San Francisco Bay, and that respondent had a duty to act so as to prevent harm to appellants.   They also argued that the reasonableness of respondent's actions was a question of fact.

For the purposes of its summary judgment motion, respondent assumed the truth of appellants' expert witness opinion that it could have done something to prevent the flood waters from reaching Alviso.   Even making this assumption, however, respondent disputed its legal duty to implement a flood control system to protect other landowners.


The underlying facts are substantially undisputed.   The City of Alviso is located at the southern tip of the San Francisco Bay about 10 miles northeast of San Jose, to which it was annexed in 1968.   Its elevation is at or below sea level as a result of subsidence caused by the removal of groundwater, and it is protected from daily tidal flooding by respondent's system of salt ponds and surrounding levees which separates Alviso from San Francisco Bay proper.

After a severe storm early in 1983, large amounts of water flowed down Coyote Creek, which is east of Alviso and runs north towards San Francisco Bay, running west and approximately parallel to Highway 880.   The portion of the creek which runs between Route 237 and the bay flooded and, blocked to the north by structures including the salt pond levees and Newby Island, the flood waters diverted west, flooding Alviso.   The maximum flood elevation, 5.6 feet, is below the seven foot average elevation of high tides in the south bay.

Respondent succeeded salt companies whose operations in the south bay date back to the beginning of the century, and the levees surrounding the ponds nearest Alviso were all completed in the early 1950s.   The levees are intended to prevent the influx of tidal waters into the salt ponds.   Salt is produced by pumping bay waters through these ponds, over a five-year period, towards respondent's plant in Newark.   The salinity of the water increases through evaporation until the salt is crystallized near the Newark plant.   The water is moved through the ponds by small siphons and pumps which can move only small quantities of water at a time.

The levees surrounding respondent's salt ponds are subject to settling, compaction and erosion.   As part of its routine maintenance, therefore, respondent schedules “passes” of these levees when tidal waters start to overtop them:  Two and a half to three feet of mud is dredged from inside the salt pond and deposited on top of the existing levee.   The “outboard” levees separating pond A–18, a large salt pond close to Alviso, from San Francisco Bay, were “topped” in this fashion between May and December 1982.   This “topping” was intended to provide 12 to 18 inches of “freeboard” above high tides after it has dried, and is consistent with the historical elevation of this levee.

When Coyote Creek overflowed in early 1983, flood waters overflowed the “inboard” levees of five salt ponds, including A–18, increasing its depth approximately three feet.   The siphons and pumps in this pond had insufficient capacity to remove this excess water from the pond.   As a result of the flood, respondent alleged it suffered extensive levee damage and lost 38,000 tons of salt.

Some of the area comprised by the salt ponds and levees was deeded after the 1983 flood to the Santa Clara Valley Water District as part of a comprehensive flood control plan;  14,000 acres had previously been deeded to the United States Fish and Wildlife Service in 1979.   As to the ponds in these latter lands, respondent retains an easement to use them for the production of salt.   It may maintain the levees surrounding these ponds as necessary for salt production, but for no other purpose.


1. Duty of Care

The central question on this appeal is whether the trial court correctly concluded, as a matter of law, that respondent owed no duty of care to prevent harm to appellants.   Appellants argue, in effect, that respondent had a duty to construct its levees in such a fashion as to leave a channel through which floodwaters could exit Coyote Creek into San Francisco Bay, and that its failure to do so was negligence.   Further, they argue that whether respondent should have undertaken reasonable flood control measures was a question of fact precluding summary judgment.

Whether respondent had a duty to prevent harm to appellants, however, is a question of law especially where, as the trial court pointed out “[t]here is no dispute as to what the Defendant did and didn't do during the period before and during the 1983 flood․”  (See also Richards v. Stanley (1954) 43 Cal.2d 60, 66–67, 271 P.2d 23;  Dillon v. Legg (1968) 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 441 P.2d 912.)   As Justice Tobriner observed in Dillon, “ ‘It must not be forgotten that “duty” got into our law for the very purpose of combatting what was then feared to be a dangerous delusion (perhaps especially prevalent among juries imbued with popular notions of fairness untempered by paramount judicial policy), viz., that the law might countenance legal redress for all foreseeable harm.’ ”  (Ibid., quoting Fleming, An Introduction to the Law of Torts (1967) p. 47.)   Duty, as Justice Tobriner noted, is a “court-imposed restriction[ ] on recovery.”  (Ibid.;  Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434, 131 Cal.Rptr. 14, 551 P.2d 334;  Prosser & Keeton, On Torts (5th ed. 1984) § 37, p. 236;  Rest.2d Torts, § 328B.)

This court must thus review the trial court's determination that respondents had no duty to take affirmative steps to prevent or ameliorate the flooding in Alviso.   Since this appears to be a novel question, we will first examine the cases relied on by appellant.

In Tahan v. Thomas (1970) 7 Cal.App.3d 78, 86 Cal.Rptr. 440, respondent built a dike across a county road to protect his land from flooding by the Fresno River.   The waters, in consequence, flooded appellant's land.   The appellate court rejected respondent's argument that he had a right under the “common enemy” doctrine to protect his land from flooding and instead embraced a reasonableness standard.  (Id. at p. 81, 86 Cal.Rptr. 440.)   It then determined that respondent's conduct was unreasonable as a matter of law, since the road intersected a levee which had originally protected respondent's land from flooding.  (Id. at p. 83, 86 Cal.Rptr. 440.)

In Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 178 Cal.Rptr. 783, 636 P.2d 1121, appellants sought to overturn a summary judgment in favor of respondents, co-owners of a parcel of land containing an active landslide.   Appellant's property was located in the “toe” of this landslide, and slid into his neighbor's house in heavy spring rains.   In the ensuing suit, appellant cross-complained against respondents, alleging the damage was proximately caused by their negligent failure to correct or control the slide.  (Id. at p. 361, 178 Cal.Rptr. 783, 636 P.2d 1121.)

The California Supreme Court agreed that summary judgment had been granted in error.   In reversing, it rejected the distinction between “natural” and “artificial” conditions in holding that a possessor of land is not immune from liability for harm to persons outside his or her premises caused by a natural condition of the land.  (Sprecher v. Adamson Companies, supra, 30 Cal.3d at p. 362, 178 Cal.Rptr. 783, 636 P.2d 1121.)   The Court held that liability should instead be based on the duty of reasonable care enunciated in Civil Code section 1714, which imposes liability for harm caused by the want of ordinary care or skill in the management of his or her property or person.   (Id. at p. 371, 178 Cal.Rptr. 783, 636 P.2d 1121.)

In Linvill v. Perello (1987) 189 Cal.App.3d 195, 234 Cal.Rptr. 392, the Second Appellate District determined that a property owner must act reasonably in building barriers to protect his or her property from floodwater damage.   In that case, respondents erected a levee along the edge of their property to protect it against floodwaters from an adjacent watercourse.   Appellants claimed the effect of this construction was to divert the floodwaters, causing damage to their persons and property.

Citing Sprecher, the appellate court in Linvill rejected respondents' argument that the diversion of floodwaters should be an exception to the general rule of tort liability, (id. at p. 199, 234 Cal.Rptr. 392) and remanded for a determination of whether respondent's conduct was reasonable in light of all the circumstances.  (Id. at p. 200, 234 Cal.Rptr. 392.)

None of these cases provides support for appellants' position that the trial court erred in concluding that respondent had no duty as a matter of law.   On the contrary, they establish that respondent's actions must be evaluated by the rule of reasonableness applicable to all allegedly tortious conduct.

This rule was reiterated recently by the First Appellate District in Weaver v. Bishop (1988) 206 Cal.App.3d 1351, 254 Cal.Rptr. 425.   Respondents in that case acted to prevent damage to their own property along the banks of a creek, resulting in damage to neighboring property.   The appellate court acknowledged the liability of a landowner for harm caused by diverting or obstructing waters to be “one of the most confusing areas of California law.”  (Id. at p. 1353, 254 Cal.Rptr. 425.)   It then discussed various theories of liability, including that relied on by appellants here;  that one may not obstruct or divert the flow of a natural watercourse.  (Id. at p. 1354, 254 Cal.Rptr. 425, citing LeBrun v. Richards (1930) 210 Cal. 308, 314–315, 291 P. 825, quoting Horton v. Goodenough (1920) 184 Cal. 451, 453, 194 P. 34.)

 The appellate court proceeded to reject the claim that strict liability applied to this latter theory, concluding instead, as had cases before it, that for liability to be imposed, there must be some showing that a defendant's conduct was “unreasonable or otherwise wrongful.”  (Weaver v. Bishop, supra, 206 Cal.App.3d at pp. 1355–1356, 254 Cal.Rptr. 425;  see also Keys v. Romley (1966) 64 Cal.2d 396, 408–409, 50 Cal.Rptr. 273, 412 P.2d 529.)

Although the question of whether the respondent in this case constructed its salt pond levees in a reasonable manner is distinguishable from the question of whether property owners acted reasonably in taking affirmative steps to protect their land from damage by flooding, we are satisfied that the standard enunciated in these cases, the general civil standard codified in Civil Code section 1714, should be applicable to evaluate respondent's conduct in this case.

 Applying this standard to the undisputed facts upon which the trial court reviewed respondent's summary judgment motion, we conclude, as did the trial court, that there is no construction of these facts under which respondent's conduct could be construed as unreasonable as a matter of law.

Far from adversely affecting Alviso, the record establishes that, absent their effect during the 1983 floods, the salt pond levees had only beneficial effects on appellants.   They were constructed at least 30 years prior to these floods as part of a commercial enterprise which had been on-going, at that juncture, for half a century.   The undisputed purpose of the levees was to create a tidal barrier, and to maintain the brine in discrete ponds during the evaporation process.   This purpose is not only innocuous but of substantial economic and ecological importance not only to Alviso but to the Bay Area as a whole.

It is undisputed that because of the subsidence which caused Alviso's elevation to drop to sea level or below between 1934 and 1967 the levees protected Alviso from tidal flooding on a daily basis.   The Bay Conservation and Development Commission (BCDC), in the San Francisco Bay Plan prepared in 1979 also recognized, as had the Legislature in enacting Government Code section 66602.1 in 1969, that the salt ponds also provide a habitat for shore birds, supplement the water surface of the bay, and help moderate the Bay Area climate and prevent smog.

There is no evidence in the record that during the 30 years prior to the 1983 flooding the salt ponds and levees adversely affected drainage from Coyote Creek, or that respondent should or even could have anticipated a flood of this magnitude.   It is also apparent that the salt pond levees were not the only things in the south bay which might have diverted flood waters from Coyote Creek in 1983.   Sometime after 1968, improvements to the San Jose Sewage Treatment plant, located to the south and west of Alviso, included the raising of an S-shaped levee and channelization of and modifications to Artesian Slough, its outfall channel.   The Guadalupe River was also channelized during this period.   Since these changes all modified historic drainage paths, it would be unjust to attribute the entire diversion of the 1983 Coyote Creek overflow entirely to the presence of the salt ponds.

Neither are there any negative inferences to be drawn from the routine “topping” of the levees which occurred in 1982, and of which appellants make so much.   This was not done, as were the acts in the cases discussed above, in order to prevent flood waters from entering the salt ponds at appellants' expense, but to prevent the influx of tidal waters from the bay.   Indeed, had respondent not maintained the levees in this fashion, Alviso as well as respondent would have suffered the influx of bay waters.

 There are also significant public policy reasons why a duty of the kind appellants suggest should not be imposed on respondent.   Flood control, which requires coordination, planning and land use regulation on a large scale, is a task more appropriate to governmental entities than to individual private landowners.  (See, e.g., Water Code §§ 8401(c), 12578 and 12579.)   This is particularly true in the ecologically fragile environment of the San Francisco Bay.  (See Government Code section 66600 et seq.)   The public policy underlying the enactment of the McAteer–Petris Act in 1965, as respondents point out, was that since “the bay operates as a delicate physical mechanism in which changes that affect one part of the bay may also affect all other parts,” it was in the public interest to create BCDC to analyze, plan and regulate the San Francisco Bay as a unit.  (Govt.Code, § 66600.)   We therefore concur in the trial court's conclusion that respondent had no legal duty “to take affirmative steps to pre[v]ent or ameliorate the flooding in Alviso.”

Even had we concluded that respondent had a duty to appellants, moreover, the record substantiates respondent's allegation that, after 1979, it was no longer the record owner of most of the salt ponds in the south bay:  Three and a half years prior to the flooding, as we have already noted, respondent deeded 14,000 acres of the salt ponds and levees—all those near Alviso except pond A–18—to the United States Fish and Wildlife Service for the purpose of establishing the San Francisco Bay National Wildlife Refuge.   The lands so deeded include the southeast corner of pond A–16, the “potential tide gate location” identified by appellants, which also abuts the sewage treatment plant outfall channel on Artesian Slough.   Respondent retained reserved rights on these lands only for the purposes of salt production and routine maintenance.   Any duty which would have adhered since 1979, therefore, would have devolved on entities other than respondent.

2. Discovery

 Appellants' second major contention on appeal is that they were prejudiced by a premature discovery cut-off.   We cannot agree either that appellants were prejudiced by the discovery orders or that they would provide the basis for reversing the judgment below.

The history of the discovery cut-off is not entirely free from dispute, but in its general outlines appear to be as follows: 1  When respondent requested a definite statement of appellants' liability theories, the Discovery Master, with appellants' concurrence, imposed a discovery cut-off of August 1, 1987, after which appellants were expected to give a statement of their liability theories and their experts would be deposed.   This deadline was later extended to September 15, 1987.   Further extensions were sought and granted on October 7, 1987 and January 18, 1988.   Then, on May 18, 1988, appellants moved to reopen liability discovery.   At this point, discovery had been going on for over two years.   The trial court denied the motion.   Respondent's summary judgment motion was filed in early October, 1988.

We find appellants' contentions that the discovery cut-off was premature little more than specious.  Code of Civil Procedure section 2019, subdivision (c) permits a court to enter orders affecting the timing and sequence of discovery “for the convenience of the parties and witnesses and the interests of justice.”   The multitude of parties in this litigation demanded the imposition of an orderly discovery process if any resolution of the issues was ever to be achieved, and Judge Leahy is to be commended for the fashion in which he managed this almost unmanageable litigation.   As respondent noted below, moreover, appellants' experts all stated they had sufficient facts upon which to base a professional opinion.   No doubt additional discovery time would have resulted in additional facts to which they were not privy when discovery was terminated—appellants point to facts presented to the trial court in related litigation in March 1989—but this does not support their contention that the discovery cut-off was premature.   Appellants have failed to convince this court, as they must, that the discovery deadline of which they complain was not “in the interests of justice.”

Nor have appellants persuaded us that they were prejudiced by the imposition of this discovery deadline.   For this proposition they cite evidence disclosed in the related litigation of the cross-complaint against respondent by the City of San Jose.   They state no reasons, however, why their discovery failed to disclose these same facts.   In sum, we are satisfied that the discovery orders allowed appellants a full and fair opportunity to investigate the facts underlying respondent's role in the 1983 flooding.

The judgment is affirmed.


1.   The record in this case, pursuant to California Rules of Court, rule 5.1, consists of appellants' and respondent's appendices, rather than clerk's and reporters' transcripts.

ELIA, Associate Justice.

AGLIANO, P.J., and PREMO, J., concur.