August C. HANSCH, Margaret V. Hansch, and Insurance Company of North America, Plaintiffs, Respondents, Cross-Appellants, and Cross-Respondents, v. COUNTY OF LOS ANGELES, Los Angeles County Waterworks District No. 29, Los Angeles County Flood Control District, and State of California Department of Transportation, Defendants, Appellants, Cross-Respondents, and Cross-Appellants.
This is an appeal from a judgment awarding damages against the County of Los Angeles for destruction of a single-family residence in a slow-moving landslide at Big Rock Mesa in Malibu. The owners of the property, August C. Hansch and Margaret V. Hansch--joined by their insurer, Insurance Company of North America, as plaintiff-in-intervention on a subrogation claim--sued four public entities for compensation for loss of the property and for emotional distress.1 The four defendants are the County of Los Angeles (“the County”), the Los Angeles County Waterworks District No. 29 (“the Waterworks District”), the Los Angeles County Flood Control District (“the Flood Control District”), and the State of California Department of Transportation (“the State”).2 Plaintiffs' five theories of liability were inverse condemnation; breach of a statutory duty; breach of a duty to warn; maintenance of public property in a dangerous condition; and nuisance.
The parties' dispute on this appeal is not over the events preceding the landslide--these are essentially uncontested here--but rather the legal consequences of those events. The site of the landslide, Big Rock Mesa, is located in Malibu, in an unincorporated portion of the County of Los Angeles. So far as concerns this appeal, plaintiffs' case focused on their contention the landslide was triggered by high subsurface water levels resulting from in-the-ground disposal of waste water from the homes in the area. Residences on Big Rock Mesa were not connected to a sewer system; instead, the waste water from each house was discharged through an underground septic system, where it (along with rainwater, landscape irrigation, and subsurface flow from adjacent areas) contributed to the ground water. Despite certain measures undertaken to remove ground water from the area, ground water levels rose over the long term.
The landslide became apparent in 1983. It was a slow landslide, evidenced by surface movement of a few feet over an extended period. At the time of the landslide, surface movement destroyed plaintiffs' home and damaged or destroyed many others.3
Hundreds of plaintiffs filed scores of actions for damages. These actions were consolidated. The present action was severed from the others “for the purpose of trying it first as a test case.” (Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 692, 225 Cal.Rptr. 657.) Before trial, the trial court ruled on motions by various parties for summary adjudication of issues and other motions to narrow the issues in contention and the proof to be received at trial. Over plaintiffs' objection, the case was bifurcated for trial, with the issue of liability on the inverse condemnation theory tried first, to the court. At the close of plaintiffs' evidence,4 the court granted the motions of the Waterworks District and the State for judgment.5 It also granted the motions for judgment of the County and the Flood Control District with respect to plaintiffs' claims based on nuisance, maintenance of public property in a dangerous condition, and breach of a statutory duty.6 The County and the Flood Control District remained as defendants, with respect to the inverse condemnation claim only.7
At the conclusion of the trial, the court found in favor of plaintiffs, and against the County, on the basis of inverse condemnation, but rejected plaintiffs' emotional distress claim. The court also found for defendant Flood Control District. The parties then agreed to try valuation to the court. After determining the fair market value of the Hansches' property to have been $2.075 million at the time of its destruction, the court awarded plaintiffs that sum plus interest, attorneys' fees, and costs.8 The trial court declined to award costs to the three exonerated defendants.
The County appealed from the plaintiffs' judgment against it. The Hansches cross-appealed from the judgment won by defendant Waterworks District and from the trial court's ruling that the County is not liable for their emotional distress. The three victorious defendants--the Waterworks District, the Flood Control District, and the State--cross-appealed from the trial court's order denying them an award of costs against plaintiffs. The insurer did not appeal. Appeals from other aspects of the judgment were later dismissed by the parties.
I. THE COUNTY'S APPEAL
Big Rock Mesa is situated atop coastal bluffs rising to the north above Pacific Coast Highway and the Pacific Ocean. The area was not intensively developed before the early 1960's. Water was supplied from private wells and, after the 1940's, from a rudimentary private water system consisting of pipes and storage tanks fed by wells and water brought in by tanker trucks. By 1954, there were 20 homes in the area. By 1958 most of the wells had been abandoned. By the early 1960's, 93 homes had been built. At about this time the Waterworks District, formed to supply water to the East Malibu and Topanga areas, acquired the existing water companies and abandoned the remaining wells. The Waterworks District planned a more extensive water delivery system in the area, both for adequate fire control and for domestic use; an inadequate water supply represented a sanitation hazard to residents.
In 1960 a developer proposed two new residential subdivisions on Big Rock Mesa. There were no sewers in the Big Rock area--or, indeed, in the rest of Malibu. The County at first told the developer it would be required to install sewers as a condition of approval of the subdivisions. The developer's technical consultants satisfied the County, however, with studies showing that domestic waste water could adequately be disposed through individual septic disposal systems, called seepage pits, connected to each home. A seepage pit discharges domestic waste water underground. There was some concern about the potential effect of these discharges on groundwater levels. It was known that there had been some ground instability at the bluff, and there was evidence of a landslide at Big Rock Mesa thousands of years ago. The developer's consultant reported its studies had led it to conclude there was no ancient landslide, but even assuming there was, the area would be geologically stable even with seepage pits contributing to the groundwater. The consultant pointed out the water table was already only 25 to 50 feet below the ground surface and no movement had occurred in a very long time, and reported it was improbable the water table would rise, even with seepage pits. The consultant recommended adding four horizontal drains as an additional safety factor. These horizontal drains, also called hydraugers, are 700-foot-long perforated steel pipes, one and five-sixteenths or two inches in diameter, drilled into the ground in a nearly horizontal position. Their upper ends were to be drilled to an elevation of 77 feet, with the outfall ends at the top of the bluff at Pacific Coast Highway. Groundwater would enter the pipes through the perforations and drain, by force of gravity, toward their outfall ends. The consultant assured the County that water discharged by the hydraugers would not contain sewage.
The County found this plan acceptable. The issue of who would be responsible for maintaining the hydraugers was resolved by a decision that County agencies would not maintain them; instead, they would be maintained at private expense by a corporation to be organized by the developer for that purpose.
The County agreed to approve the proposed subdivisions even before the developer installed the hydraugers, provided it could be assured that installation would be completed and arrangements for private maintenance would be made. To these ends the County required the developer both to post a bond guaranteeing installation of the hydraugers and to form a nonprofit corporation to maintain them.
The developer installed the hydraugers in 1963 and 1964. The County did not supervise, observe, or inspect the installation. The builder retained a civil engineering firm to monitor, inspect, and report on the installation. A membership corporation, called the Malibu Mutual Drainage Company, was formed, with every owner of a lot within the two tracts required to be a member. This requirement was recorded in the Conditions, Covenants, and Restrictions covering each lot within the two tracts. The corporation was organized for the stated purpose of providing for the maintenance of the hydraugers and disposal of water collected by them. The developer contributed $10,000 to the corporation's treasury. The first houses within the tracts were constructed in 1964. In 1966 the County released the bond.
Additional homes were constructed outside the two tracts. All used individual seepage pits for waste water disposal.
Beginning in about 1970, high groundwater conditions and associated seepage and land slippage were observed in the area of the bluffs. At about this time, the Malibu Mutual Drainage Company undertook extensive efforts to pump groundwater from the area. These efforts ceased in 1975 upon the dissolution of the Company by vote of its members.
Twenty-three homes were built after 1973, including that of plaintiffs. Plaintiffs bought their lot from a builder in 1977 for $45,000. Construction of their house began in 1977 or 1978 and was completed in 1980, at a cost of approximately $1.2 million. The house contained some 6000 square feet of living space.
The landslide began to affect plaintiffs' house in August 1983, and by October 1983 it was uninhabitable. Their insurer paid them approximately $1.3 million on account of the loss.
At the trial, plaintiffs adduced evidence that the landslide was triggered by the lubricating effect of a high groundwater level, and that the high groundwater level was caused in substantial part by the discharge of domestic waste water into the ground through the seepage pits of the homes on the Mesa, including those located within the two tracts approved in the early 1960's.
Defendants contended plaintiffs' property was damaged, independent of the Big Rock Mesa landslide, by improper grading of their property during construction of their house, driveway, swimming pool, and tennis court. The defense also contended the high groundwater levels were caused by exceptionally heavy rainfall,9 rather than by water from the seepage pits. The trial court's findings implicitly rejected these two contentions as a basis for avoiding liability. Instead, the court found that effluent from the private sewage disposal facilities installed as part of the residential development of Big Rock Mesa substantially contributed to a rise in groundwater since the early 1960's, and that this rise was a substantial contributing cause of the Big Rock Mesa landslide and the damage to plaintiffs' home.10
The trial court held the County liable in inverse condemnation on two bases. First, the hydraugers were public works and caused the damage to plaintiffs' property. Secondly, the County substantially participated in the planning of residential development on Big Rock Mesa utilizing seepage pits and horizontal drains, and approved this development and the drainage system, and this conduct constituted a substantial participation incident to serving a public purpose. On its appeal the County challenges the validity of both bases of liability.
A. The Hydraugers as Public Works
When physical damage to private property is caused by a public work, liability in inverse condemnation is imposed on the public agency which constructed or owns the work. This is strict liability: it is imposed regardless of whether the public agency was negligent in the design, construction, maintenance, or operation of the public work, and regardless of whether the harm was foreseeable. (E.g., Holtz v. Superior Court (1970) 3 Cal.3d 296, 90 Cal.Rptr. 345, 475 P.2d 441; Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 42 Cal.Rptr. 89, 398 P.2d 129.) Liability stems from the constitutional requirement that owners of private property taken or damaged for public use be compensated.11 Apart from the constitutional rule--which is of itself sufficient basis for liability, of course--this principle finds support in economic theory. If a public work damages private property, the damage should be regarded as one of the real costs of the work. If the public entity could avoid the burden of this type of cost, it might disregard such potential harm in evaluating whether the benefits of a proposed project outweigh its cost.
The public improvements of the County and the Flood Control District on Big Rock Mesa included public roads, under-road drains, and flood control storm drains. These were all found by the trial court to have carried water away from the area and therefore not to have been a cause of the damage to plaintiffs' property.
The trial court found the hydraugers also were public works, having been accepted by the County, either expressly by act of the County's Board of Supervisors or impliedly.
The evidence supporting the contention the hydraugers were public improvements can be summarized as follows. The hydraugers were a significant part of the County-approved development project with respect to removal of domestic waste water. They were intended to drain not only water from the two tracts in connection with which they were installed, but also natural groundwater from a larger area. When the County later approved a third tract, the presence of the four hydraugers was considered in evaluating the disposal of waste water from the new tract.
The County did not require the developer to complete installation of the hydraugers before it gave final map approval to the new subdivisions. Rather, it required the developer to bind itself by contract to install them after final map approval. This contract required that the work be done under the supervision of the County Engineer and to his satisfaction. It further provided that the developer agreed to grant the County “such easements as are necessary for [their] upkeep and maintenance by the County.” The developer agreed the County would not be liable for injuries occurring in the course of installation of the hydraugers prior to their completion and acceptance, and that the developer would undertake to warn the public against dangerous conditions during their installation. The developer was required to post a bond guaranteeing satisfactory completion of the installation.
An agreement to install the hydraugers was not the only condition of final map approval. The County also required the developer, by separate agreements, to construct flood control drains, water mains, fire hydrants, curbs, gutters, streets, storm drains, and survey monuments; these all became public improvements.
After these improvements were constructed, the County Board of Supervisors followed recommendations to accept completion and release the performance bonds. Some of the recommendations referred to acceptance of dedication of public improvements, and others did not. On June 13, 1966, the County Engineer reported to the Board of Supervisors that the hydraugers had been installed in a manner satisfactory to the County Engineer, and recommended that the Board of Supervisors “determine that said improvements ․ have been completed in a satisfactory manner” and “cancel the bonds for Faithful Performance.” On June 21, 1966, the County Board of Supervisors accepted this recommendation and passed a resolution stating “the Board hereby determines that the improvements ․ have been completed in a satifactory [sic] manner; and it is ordered that the Faithful Performance Bond ․ be and it is hereby cancelled.”
This evidence is insufficient to support the trial court's conclusion that the hydraugers were public works. The cases finding works to be public improvements, considered together, teach that to be a public improvement, a project must be either (a) undertaken by a public entity, (b) dedicated to a public entity by an offer to dedicate and acceptance of that offer, or (c) impliedly accepted, through being treated by the public entity as a public work. (See Ackley v. City etc. of San Francisco (1970) 11 Cal.App.3d 108, 113, 89 Cal.Rptr. 480; Tischauser v. City of Newport Beach (1964) 225 Cal.App.2d 138, 145, 37 Cal.Rptr. 141.) The record is devoid of evidence that any of these three events occurred with respect to the hydraugers.
Though plaintiffs contend the existence of a contract between the County and the developer requiring the installation of the hydraugers makes them a project undertaken by the County as a public work, the evidence, as previously summarized, demonstrates that the purpose of the contract was not to procure construction of a public improvement but rather to bind the developer to complete work it promised to perform as a condition of obtaining tract map approval.
The trial court's finding of express acceptance of dedication in the minutes of the County Board of Supervisors cannot withstand examination of those minutes. They show acceptance of the developer's performance under the contract obligating it to complete the installation satisfactorily. They do not demonstrate acceptance of an offer to dedicate the hydraugers as public works. Nor is there evidence that the developer made such an offer of dedication. To the contrary, the fact that one of the conditions of tract map approval was the formation of a private membership corporation whose members would be all homeowners within the two tracts, with a corporate purpose of maintaining the hydraugers, indicates that no such offer of dedication was contemplated. Without an offer of dedication and acceptance of that offer, improvements cannot become public by this formal route. (See Ackley v. City etc. of San Francisco, supra, 11 Cal.App.3d 108, 112, 89 Cal.Rptr. 480.)
The trial court also ruled the hydraugers “were impliedly, if not expressly, accepted.” Implied acceptance has been found where an extension of a city's storm drain system was installed privately but partly using city construction services, and was later declared by the city in litigation to be a part of the city's storm drain system (Marin v. City of San Rafael (1980) 111 Cal.App.3d 591, 168 Cal.Rptr. 750); where a road and bridge were used by the public for at least twelve years with the owners' knowledge, and maintenance and repair work were performed on them by the county (Union Transp. Co. v. Sacramento County (1954) 42 Cal.2d 235, 244, 267 P.2d 10); where a public entity maintained a foot path (Ackley v. City etc. of San Francisco (1970) 11 Cal.App.3d 108, 113, 89 Cal.Rptr. 480 (dictum)); where a road was offered to the public entity for dedication and was thereafter used by the public for street purposes for over 20 years (McKinney v. Ruderman (1962) 203 Cal.App.2d 109, 115, 21 Cal.Rptr. 263); where the public used private land for recreational purposes, as if the land were a public park owned by the city or county, for more than five years with full knowledge of the owner and without asking permission and without his objection (Gion v. City of Santa Cruz (1970) 2 Cal.3d 29, 84 Cal.Rptr. 162, 465 P.2d 50; County of Los Angeles v. Berk (1980) 26 Cal.3d 201, 161 Cal.Rptr. 742, 605 P.2d 381); and where a city or county, despite the absence of formal acceptance of dedication, treated a street offered for dedication as a public street by many acts over a period of many years (Tischauser v. City of Newport Beach (1964) 225 Cal.App.2d 138, 145, 37 Cal.Rptr. 141) or paved and improved the streets offered for dedication (San Francisco S. Co. v. Contra Costa Co. (1929) 207 Cal. 1, 276 P. 570). The facts of the present case do not lie within any of these categories, nor within the more general principle they suggest that private property, if offered for dedication to the public but not formally accepted, can nevertheless be accepted through conduct of a public entity, or if the public treats the property as though the offer had been accepted.
Plaintiffs cite language from other cases to the effect that works constructed by a private contractor under contract with a public agency result in liability on the part of the public agency, if the public work is constructed according to the plans and specifications furnished by the agency. These cases, however, all involved the construction by the public, through private construction firms, of public works, and are therefore inapposite. (Heimann v. City of Los Angeles (1947) 30 Cal.2d 746, 756-757, 185 P.2d 597 [overruled on unrelated grounds, County of Los Angeles v. Faus (1957) 48 Cal.2d 672, 679, 312 P.2d 680] (a federal Works Project Administration viaduct); Blau v. City of Los Angeles (1973) 32 Cal.App.3d 77, 87, 107 Cal.Rptr. 727 (public streets); Sheffet v. County of Los Angeles (1970) 3 Cal.App.3d 720, 734-735, 84 Cal.Rptr. 11 (same); Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345, 362-363, 28 Cal.Rptr. 357 (same).)
Finally, the fact the hydraugers were expected to drain groundwater from areas of Big Rock Mesa both inside and outside the two tracts is not sufficient public use to constitute implied acceptance. Plaintiffs contend the hydraugers were the County's substitute for a sewer system on Big Rock Mesa. Under this view, the hydraugers served the same purpose as a sewer system--to carry away waste water. Plaintiffs point out that the water drained by the hydraugers passed into public drainage facilities which carried the water from the base of the cliffs to the ocean. They invoke the aphorism that liability in inverse condemnation is imposed when public improvements, operating as “deliberately designed and constructed,” proximately cause harm to real property. (E.g., Holtz v. Superior Court, supra, 3 Cal.3d 296, 303, 304, 311, 90 Cal.Rptr. 345, 475 P.2d 441.)
This approach is based on the assumption that improvements cannot be private if they serve functions similar to those performed by public improvements. Private roads and private water supply systems are two illustrations that this assumption is erroneous. A drainage system underlying numerous lots and draining a widespread area might, in the absence of other circumstances, be regarded as intended to perform a public drainage function. Here, however, other circumstances demonstrate otherwise. The County, when it permitted the developer to proceed without installation of sewers, required the developer not only to install the hydraugers, but also to establish a formal means for their perpetual private maintenance. For that purpose the developer formed the Malibu Mutual Drainage Company, with power to levy assessments on its members for operation and maintenance of the hydraugers. Membership in this Company, and liability to its assessments, were made incidents of ownership of each lot in the two tracts, and included in the tracts' recorded conditions, covenants, and restrictions. Under these circumstances, the widespread function served by the hydraugers cannot be taken as an indication they became a County improvement.
The fact the hydraugers emptied water into County drains at Pacific Coast Highway does not make them County facilities, any more than roof gutters and down-spouts on a private home become public improvements because the water they collect travels to the gutter in a public street.
The “operating as deliberately designed and constructed” principle does not advance plaintiffs' position, because it applies only to public improvements. Though plaintiffs characterize the hydraugers as “the County's substitute for sewers,” the evidence shows they were instead a feature the developer offered, as part of the proposed subdivision, to persuade the County to accept the developer's position that sewers were unnecessary.
A second, independent reason prevents the imposition of liability on the County in connection with the hydraugers. Even if the evidence had supported the plaintiffs' position that the hydraugers were public works, that proposition would not support imposition of inverse condemnation liability unless the hydraugers were a cause of the damage to plaintiffs' property.12
This principle, which is dictated by inescapable logic, is sustained by an unbroken line of decisions. In Archer v. City of Los Angeles (1941) 19 Cal.2d 19, 28, 119 P.2d 1, where a city bridge had obstructed the flow of runoff waters, the Supreme Court rejected a claim of public liability for flooding, on the ground the obstruction created by the bridge did not contribute to the flood damage. In Weck v. Los Angeles County Flood Control Dist. (1947) 80 Cal.App.2d 182, 200-204, 181 P.2d 935, a flood control district was held entitled to a directed verdict, where its flood control constructions failed to retain flood waters within a natural streambed, because the district's works did not divert any water from its natural channel; the overflow was not caused by the district's unsuccessful efforts to control water in the channel. Shaeffer v. State of California (1972) 22 Cal.App.3d 1017, 99 Cal.Rptr. 861 rejected a claim of liability where a state flood control project reduced flood waters, but not sufficiently to prevent flooding on plaintiffs' land, because the the project reduced the degree of flooding that would otherwise have occurred. Tri-Chem, Inc. v. Los Angeles County Flood Control Dist. (1976) 60 Cal.App.3d 306, 132 Cal.Rptr. 142, reversed an inverse condemnation judgment for a property owner based on a flood control district's construction of a storm drain system designed with insufficient capacity to carry away foreseeable quantities of rainwater, because the flooding of plaintiffs' property would have been worse without the storm drain system.
In the instant case, the hydraugers removed water from Big Rock Mesa. They did not cause any increase in groundwater. That they did not carry off groundwater at a rate sufficient to prevent its level from rising is not a basis for concluding they caused the groundwater conditions resulting from private development. Hence under the causation principle of the cases just cited, inverse condemnation liability cannot be based on the County's supposed acceptance of the hydraugers as public improvements.
B. The County's Participation in the Decision to Use Seepage Pits and Hydraugers Instead of Sewers on Big Rock Mesa
The second basis on which the trial court held the County liable in inverse condemnation was the fact that it “substantially participated in the planning and approved the development of Big Rock Mesa utilizing seepage pits and horizontal drains.” The court explained that this development contributed to the rise in groundwater and the landslide; that the County's approval of the drainage system for the Big Rock area was incidental to the serving of a public purpose; and that the County “was in the best position to assess the risk of residential development of the Mesa with a system of seepage pits and horizontal drains and ․ must now bear the loss when damage occurs.”
The imposition on a public agency of liability without fault in inverse condemnation for harm resulting from private development is a novel proposition and a central issue on this appeal. The usual basis of liability where private property is said to have been taken for public use by physical destruction involves damage caused by public improvements.13 Here--apart from the hydraugers, which have already been discussed, and the roads and road-associated drains and storm drains, which the trial court found carried water away from the area, not to it--there were no such public improvements.
Plaintiffs offer several cases for the proposition that a public entity's participation in approving private development is a basis for inverse condemnation liability if physical destruction of property results. The only case that could be said to give plaintiffs any real support is Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345, 28 Cal.Rptr. 357, on which the trial court relied. That decision contains considerable language to the effect that public approval of private improvements which result in the diversion of surface water flow supports liability in inverse condemnation.
Frustuck should not be read so broadly. Its discussion of inverse condemnation for approval of private development is dictum. The actual holding of the case was that the landowner was entitled to neither the injunction the trial court entered against the city, nor the $5000 the trial court conditionally awarded her as damages; the only recovery sustained on the appeal was $150 damages for the cost of removing dirt and debris the city had piled alongside a drainage ditch on plaintiff's property without her consent.
For other reasons, as well, the cited discussion in Frustuck carries little weight. There the trial court had premised liability not only on the diversion of surface waters in the private development, but also the construction by the city of a 24-inch drainage culvert under a public street to carry surface water onto plaintiff's property--adjacent to and supplementing an existing 20-inch culvert--and the city's enlargement of a drainage ditch on plaintiff's property. The trial court found a public easement to carry storm waters onto plaintiff's land to the extent the old 20-inch culvert could carry them. The trial court ruled that the city would be enjoined from causing additional water to flow onto plaintiff's property, unless it paid her $5000 damages to compensate her for anticipated future harm from the additional water to be carried by the new 24-inch culvert. Following the entry of judgment, the city promptly installed new works to reduce to previous levels the amount of water flowing onto plaintiff's land, in effect complying with the injunction, and the trial court ruled that the city need not pay the $5000, though it reserved jurisdiction to enforce the injunction. On appeal, the court held the injunction was improper because the property owner's sole remedy for inverse condemnation was damages. The only damage she had proved was the $150 cost of removing the debris resulting from the city's widening of the ditch on her property. Frustuck thus mainly turned on the construction by the city of a storm drain culvert under a public street which carried runoff water onto plaintiff's land, and its unconsented excavation on her property. Viewed in perspective, it does not support the judgment in the instant case.
In addition, the language in Frustuck purporting to recognize liability for approval of private development is equivocal, for it includes substantial references to public improvements. Between 1951 and 1957 the city had approved subdivision maps and construction plans for development of five subdivisions and a private school building uphill of Frustuck's property. The subdivision development included the paving of public streets, which increased the amount of water runoff. The court explained the basis of liability for increased surface runoff as the city's “failure, in the exercise of its governmental power, to appreciate the probability that the drainage system from Marinda Oaks to the Frustuck property, functioning as deliberately conceived, and as altered and maintained by the diversion of waters from their normal channels, would result in some damage to private property.” (212 Cal.App.2d at p. 362, 28 Cal.Rptr. 357.) In the ensuing discussion, though, the Court referred to these drainage works as follows: “Such drainage systems when accepted and approved by the City become a public improvement and part of its system of public works.” (Id.) The drainage systems causing the actionable diversion were, then, the public culverts and drains associated with the public roads in the private subdivision.
Frustuck thus falls far short of teaching that inverse condemnation liability can be grounded in public approval of private development, in the absence of improvements constructed by, or dedicated to, the public.
There appear to be no other cases on the point. This aspect of Frustuck is mentioned, but not relied on, in Riverside County Flood etc. Dist. v. Halman (1968) 262 Cal.App.2d 510, 521, 69 Cal.Rptr. 1 (an eminent domain case); Sheffet v. County of Los Angeles (1970) 3 Cal.App.3d 720, 734-735, 84 Cal.Rptr. 11 (privately built streets dedicated to the public and formally accepted); Stoney Creek Orchards v. State of California (1970) 12 Cal.App.3d 903, 907, 91 Cal.Rptr. 139 (holding a cause of action could be stated against the state for its participation in Federal irrigation projects); and Marin v. City of San Rafael (1980) 111 Cal.App.3d 591, 595, 168 Cal.Rptr. 750 (implied acceptance by the city of a privately installed extension of its storm drainage system.) These cases all involved public improvements.
The correct principle was applied recently, on facts comparable to (if less elaborate than) those at bench, in Yox v. City of Whittier (1986) 182 Cal.App.3d 347, 227 Cal.Rptr. 311. There the court affirmed a grant of summary judgment in favor of defendant city in an inverse condemnation case, on the ground the cause of plaintiff's damage--private drainage works poorly planned, executed, and maintained--were not public improvements, notwithstanding that the city, in giving the necessary subdivision approvals and construction permits, “participated” in the inadequate drainage arrangements by requiring specified private actions to assure proper drainage. Noting that the street and pumps which constituted the drainage system were entirely privately built and maintained and were never dedicated to or accepted by the public, the court rejected plaintiffs' theory that the city should not have issued building and plumbing permits and approved the defectively designed plans. (182 Cal.App.3d at pp. 352-353, 227 Cal.Rptr. 311.) The court explained, “Plaintiffs ․ cite no authority, nor has our research uncovered any, for holding a city liable in inverse condemnation for injury to private property within a subdivision resulting from completely private construction--privately designed, financed and built--on a private street where the city's sole affirmative action was the issuance of permits and approval of the subdivision map.” (Id., at p. 353, 227 Cal.Rptr. 311.)
Yox was not decided until several months after the trial court entered judgment in the case at bench, but, as Yox itself noted, it followed, rather than changed, existing law. (Id., at p. 353, 227 Cal.Rptr. 311.) Indeed, in Ellison v. City of San Buenaventura (1976) 60 Cal.App.3d 453, 131 Cal.Rptr. 433 we affirmed a judgment following dismissal of a complaint alleging inverse condemnation liability for property damage done by silt deposits, where the plaintiff alleged the damage resulted both from public construction of streets, alleys, and drains and also from public approval of private development which lacked suitable controls to prevent erosion. We squarely held not actionable claims for “damages resulting in large part from private improvement and development of property in which the county and city played no part other than their approval of plans and issuance of permits.” (60 Cal.App.3d at p. 459, 131 Cal.Rptr. 433.)
Plaintiffs argue that waste water disposal is a public concern, and that the hydraugers constituted the County's system, in substitution for a sewer system, for disposing of waste water from the residences within the two tracts. It does not follow, though, that County approval of a developer's plans for private waste water disposal systems converted those systems into public works; and local government is not required to provide public waste-water disposal facilities. (Richards v. City of Tustin (1964) 225 Cal.App.2d 97, 99, 37 Cal.Rptr. 124.)
Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 218 Cal.Rptr. 839, relied on by plaintiffs, is not comparable to the present case. There a county permitted private development near the Salton Sea, and subsequently the developed property was damaged by flooding caused by the defendant irrigation district's use of the Salton Sea basin as a repository for irrigation runoff waters. The jury found the flooding constituted a nuisance caused by the defendant's negligent water management practices. This case does not represent liability for private development; it is liability for the negligent management of public irrigation canals.
In its statement of decision, the court below relied on Frustuck and one other case: Holtz v. Superior Court (1970) 3 Cal.3d 296, 90 Cal.Rptr. 345, 475 P.2d 441. Quoting from the latter decision, the trial court wrote, “the governmental entity with its superior resources is in a better position to evaluate the nature and extent of the risks of public improvement than are potentially affected property owners, and ordinarily is the more capable locus of responsibility for striking the best bargain between efficiency and cost (including inverse liability costs) in the planning of such improvements.” (Quoting from 3 Cal.3d at p. 311, 90 Cal.Rptr. 345, 475 P.2d 441.) The trial court continued, “The County was in the best position to assess the risk of residential development of the Mesa with a system of seepage pits and horizontal drains and, under the philosophy articulated in Holtz, it must now bear the loss when damage occurs.”
The trial court's reliance on Holtz was misplaced. Holtz, which involved damage caused by the excavation of the San Francisco subway system, addressed liability for the harmful consequences of public improvements. In the instant case, the most necessary element of the philosophy articulated in Holtz--damage caused by public improvements--is missing. Recovery by plaintiffs here is neither required nor supported by Holtz.
Finally, it should not be necessary to dwell at length on the horrendous implications of imposing public liability without fault for landslides (and presumably other disasters) not associated with any public conduct other than approval of private developers' subdivision and construction plans. The nature of the public's participation in such development does not warrant such liability, and its scale would be Brobdingnagian. In the present case the evidence showed, and the trial court found, that the landslide was not foreseeable. The development of Big Rock Mesa was a private undertaking. The government cannot be held liable for failing to require the installation of sewers which studies showed were unnecessary. Nor is it the guarantor of the work of every developer, builder, and consulting geologist.
II. THE PLAINTIFFS' APPEAL
Plaintiffs contend the Waterworks District should have been held liable for the value of their property and for their emotional distress, and that the County should have been held liable for their emotional distress in addition to the value of their property.14
Plaintiffs press two theories of inverse condemnation recovery against the Waterworks District. First, they contend the Waterworks District was the alter ego of the County and on that basis shares the County's liability. Secondly, they contend the Waterworks District is liable jointly with the County for their having together created a water delivery and removal system which was a public improvement and which, by delivering water but inadequately removing it, caused the landslide. In addition, plaintiffs contend the Waterworks District is liable in tort for their emotional distress.15
In their appeal against the County, plaintiffs contend the County breached a mandatory duty to them arising from a County ordinance governing issuance of building and grading permits for projects found to be dangerous to other property. This, they argue, is a tort theory of recovery supporting the recovery of compensation for emotional distress as well as for the loss of their property.
The trial court rejected each of these theories of recovery.
A. The Water Delivery and Removal System
Plaintiffs contend the trial court erred in finding they did not sustain their burden of proving the Waterworks District acted in concert with the County in constructing a system for delivery and removal of water. They also assign as error the superior court's pretrial ruling summarily adjudicating, as without substantial controversy, four issues proffered by the Waterworks District. The court made these adjudications after changing the Water District's proposed wording; plaintiffs contend the court had authority only to grant or deny each issue as proposed. (See Homestead Savings v. Superior Court (1986) 179 Cal.App.3d 494, 224 Cal.Rptr. 554.)16
The adjudicated issues are set out in the margin.17 Two of the four adjudications (nos. 1 and 2) were favorable to plaintiffs, removing from them the burden of proving facts they wished to establish. On appeal a party cannot assert an error in his favor. (In re Christian J. (1984) 155 Cal.App.3d 276, 281, 202 Cal.Rptr. 54.)
The adjudication of issue 3 was harmless to plaintiffs since the only favorable position that it foreclosed--that the water delivery system suffered from an unreasonable design--was not one that they sought to press. Their grievances against the water delivery system were that it never should have been installed unless sewers were installed too, and that it leaked. Evidence of both points was not foreclosed by this adjudication.
Issue 20, as recast by the trial court, correctly stated a proposition of law, so plaintiffs were not harmed by its adjudication before trial.
In addition, the record does not demonstrate that plaintiffs either advised the trial court of their objection to its having modified the Waterworks District's requests or moved for a new order denying the issues rather than modifying them. A party cannot assign as error on appeal a ruling which he has not given the trial court a timely opportunity to correct. (Royster v. Montanez (1982) 134 Cal.App.3d 362, 367, 184 Cal.Rptr. 560.)
In support of their contention the Waterworks District acted in concert with the County in constructing a system for delivery and removal of water, plaintiffs urge that delivery and disposal of water are inseparable public concerns. The trial court found against them on this point, however, and the contrary conclusion is not compelled by the evidence, which amply showed the Waterworks District had no responsibilities with respect to the removal of water from Big Rock Mesa.
B. The Alter Ego Claim Against the Waterworks District
Plaintiffs contend the trial court's finding that the Waterworks District was not an alter ego of the County is contrary to the evidence. They also assign as error the court's pretrial ruling summarily adjudicating one issue bearing on this question, after changing the Water District's proposed wording.18
The record makes clear that this adjudication only disposed of the question whether the Waterworks District was a suable entity independent of the County; the Waterworks District had suggested that if it was merely an agency of the County, as plaintiffs were claiming, then it was not a juridical entity that could be named as a defendant. The court ruled the Water District was a separate legal suable entity. To avoid potential confusion, it added that plaintiffs were free to introduce evidence in support of their theory that the County and the Waterworks District acted in concert.
Though plaintiffs assert the summary adjudication prevented them from proving the Waterworks District was an agency of the County, in fact at the trial they produced considerable evidence and argument on the point. Here they reargue the persuasiveness of that evidence. The trial court's findings rejecting plaintiffs' theory, however, were amply supported by substantial evidence and therefore will not be disturbed on this appeal. That evidence tended to show the Waterworks District was a separate public agency, and not merely an arm of the County government.
In addition, our conclusion that the plaintiffs' judgment against the County must be reversed renders moot the plaintiffs' theories that the Waterworks District shares in the County's liability.19
C. The Breach of Statutory Duty Claim Against the County
Plaintiffs assign as error the trial court's denial of recovery for “breach of mandatory duty.” They contend the County is liable to them in tort for a violation of County Building Code section 308(b)(1), which prohibits issuance of a building or grading permit if the County Engineer finds the proposed work could damage property outside the site by activating or accelerating a geologically hazardous condition.20 Damages reachable by this route, plaintiffs assert, would include compensation for emotional distress.21
The trial court properly rejected the section 308(b)(1) theory as a matter of law. This ordinance merely authorizes and directs the denial of building or grading permits for geological instability, committing to the County Engineer the decision whether a permit should be denied on this basis. It cannot be construed as creating a duty of care owed toward property owners, or as making issuance of a permit a tortious act by the County. In addition, in the absence of a finding by the County Engineer that geological instability requires denial of a permit, the ordinance is not violated by issuance of a permit. There was no such finding here, of course; to the contrary, the trial court heard no evidence that any of the experts, or the County, thought such a hazard existed.
Plaintiffs read the ordinance to provide that if the proposed work could possibly activate or accelerate a geologically hazardous condition which could possibly damage adjoining property, the County is liable in tort for any damage that occurs. We reject this interpretation. The immense liability resulting from this interpretation of section 308(b)(1) would far exceed what the County Board of Supervisors could have contemplated or intended in enacting it.
D. The Emotional Distress Claim
Plaintiffs sought, but were denied, recovery for “emotional trauma ․ as they watched the dream of their lifetimes and the labor of years crumble about them.”22 On appeal they pursue this claim by pressing the theory the County and the Waterworks District were liable to them in tort for a violation by the County of section 308(b)(1) of its Building Code. Our preceding discussion of that theory fully disposes of this contention.
III. THE DEFENDANTS' COSTS APPEALS
In general, a prevailing party is entitled to recover its costs. (Code Civ. Proc., § 1032.) The three defendants who prevailed in the trial court filed memoranda of costs.23 On plaintiffs' motion, however, these were stricken by the trial court, based on the rule that a person seeking compensation for property taken for public use is entitled to litigate free of costs.24 This well-established principle is grounded in the just compensation clauses of the California and federal Constitutions.25 The sum received by a person whose property was taken for public use would be constitutionally insufficient if it were reduced by his costs of suit. (San Francisco v. Collins (1893) 98 Cal. 253, 259, 262-263, 33 P. 56.)
This principle applies to inverse condemnation actions as well as to eminent domain proceedings. Indeed, it has been said the property owner's right to recover his costs is even stronger in inverse condemnation than in eminent domain, because the public agency, by taking the property without instituting a condemnation proceeding, has forced the property owner to initiate the litigation. (Heimann v. City of Los Angeles (1947) 30 Cal.2d 746, 752-753, 185 P.2d 597 [overruled on unrelated grounds, County of Los Angeles v. Faus (1957) 48 Cal.2d 672, 679, 312 P.2d 680].)26
In their cross-appeals the three prevailing defendants contend this rule is inapplicable to deny them costs because it was not established that they took or damaged plaintiffs' property.
In light of our reversal of the judgment against the County, it is unnecessary to decide whether the trial court was correct in not requiring plaintiffs, who had at that point prevailed against one of the public defendants, to bear the costs of any of them.
In City of Los Angeles v. Ricards (1973) 10 Cal.3d 385, 110 Cal.Rptr. 489, 515 P.2d 585, our Supreme Court held that a property owner who succeeds in obtaining a judgment in inverse condemnation is entitled to recover appeal costs following a successful appeal by the public entity on the issue of damages. The court added, “Property owners are, of course, not constitutionally entitled to costs in inverse condemnation actions if they are unable to prove that there has been a taking or damaging of their property by the defendant governmental entity.” (10 Cal.3d at p. 391, 110 Cal.Rptr. 489, 515 P.2d 585.) Although this statement was dictum, it was not casually expressed. The Court's explanation for the rule is brief but solid: “In such a circumstance the constitutional doctrine of full compensation underlying the award of costs is plainly inapplicable to owners who initiated the unsuccessful litigation.” (Id.)27
We will not repudiate this statement of the law by the Supreme Court. Having established no taking by any defendant, plaintiffs are responsible for all defendants' costs in the trial court (as well as on this appeal); the constitutional principle of full compensation does not apply unless there is a taking.
Plaintiffs rely on several decisions in which a partially unsuccessful property owner was held entitled to the benefits of the no-costs rule. These cases are distinguishable on the basis that a taking was found in each. In City of Los Angeles v. Ricards, supra, 10 Cal.3d 385, 110 Cal.Rptr. 489, 515 P.2d 585; Klopping v. City of Whittier (1972) 8 Cal.3d 39, 59, 104 Cal.Rptr. 1, 500 P.2d 1345; People ex rel. Dept. Pub. Wks. v. International Tel. & Tel. Corp. (1972) 26 Cal.App.3d 549, 103 Cal.Rptr. 63; and Collier v. Merced Irr. Dist. (1931) 213 Cal. 554, 572, 2 P.2d 790, private property had been taken for public use and the property owners were held entitled to recover their costs in litigating the measure of compensation, even though the public entity prevailed in that litigation.28 In re Redevelopment Plan for Bunker Hill (1964) 61 Cal.2d 21, 68-71, 78, 37 Cal.Rptr. 74, 389 P.2d 538, rejected property owners' contention that implementation of a city's plan to condemn property for redevelopment purposes would constitute an impermissible taking for a private use. A taking having been established, the unsuccessful property owners were held entitled to recover their trial and appellate costs. San Joaquin etc. Irr. Co. v. Stevinson (1913) 165 Cal. 540, 132 P. 1021, a condemnation action, held a property owner entitled to recover his appeal costs in connection with the public agency's successful appeal (reported at 164 Cal. 221, 128 P. 924) from the trial court's judgment dismissing the action. Orpheum Bldg. Co. v. San Francisco Bay Area Rapid Transit Dist. (1978) 80 Cal.App.3d 863, 876-877, 146 Cal.Rptr. 5, held that an inverse condemnation plaintiff was properly awarded costs by the trial court, where the trial court had found for the plaintiff on the issue of liability, but the jury had found that any damages suffered were offset by benefits accrued from the public project. None of these cases supports the plaintiffs' position that they were entitled to litigate free of liability for costs even if the court concluded their property was not taken.
A pair of decisions by Division Three of the Second District, however, appear to have held plaintiffs in inverse condemnation actions entitled to recover their costs, and to be free from bearing the defendants' costs, regardless of the outcome of the litigation. (Blau v. City of Los Angeles (1973) 32 Cal.App.3d 77, 88-89, 107 Cal.Rptr. 727; Drennen v. County of Ventura (1974) 38 Cal.App.3d 84, 88, 112 Cal.Rptr. 907.) In both cases, a defense judgment in an inverse condemnation case was reversed on appeal, and the case remanded for a new trial; each plaintiff was held entitled to recover his costs incurred in the first trial. Because these two decisions are not justified by the authority they cite,29 and they cannot be reconciled with Ricards30 , we decline to follow them.31
One final issue is whether, as plaintiffs here contend, a distinction must be drawn between denying an unsuccessful inverse condemnation plaintiff recovery of his own costs and ordering him to pay the defendants' costs. Plaintiffs do not challenge the trial court's failure to award them costs against the three prevailing defendants.32 They contend only that they cannot be required to pay the defendants' costs. There seems no basis for this distinction. If the constitutional principle of San Francisco v. Collins, supra, applied, plaintiffs would be entitled to recover their own costs and be free of bearing those of defendants. Since the constitutional principle does not apply, however, Code of Civil Procedure section 1032 governs, and all four defendants, as prevailing parties, are entitled to recover their costs, in amounts to be determined by the trial court.
Though unnecessary to our decision, some comments seem appropriate. The increasing social tendency to blame the government for events which are largely the result of abandonment of individual responsibility is not to be encouraged by so-called advances in the law. Here private developers sought to reap the profits from building on hillside land without bearing the expense of a sewer system; the developer convinced the County this would be safe, especially because a private dewatering program would be maintained. The residents who eventually occupied the area, however, chose to abandon their private dewatering efforts, apparently in hopes a public agency would take over and save them some modest expense. That the eventual catastrophe should be followed by an effort to shift the loss to the public is unsurprising but deplorable.
The notion that the County is liable in inverse condemnation for permitting a development it should have banned is ironic, since if the County had refused to permit the development, or required installation of a sewer system or other conditions which the developer considered unreasonably restrictive or costly, the County would undoubtedly have been sued in inverse condemnation for a taking of the developer's land. (See Frisco Land & Mining Co. v. State of California (1977) 74 Cal.App.3d 736, 141 Cal.Rptr. 820, cert. denied, (1978) 436 U.S. 918, 98 S.Ct. 2263, 56 L.Ed.2d 758; MacDonald, Sommer & Frates v. County of Yolo (1986) 477 U.S. 340, 106 S.Ct. 2561, 91 L.Ed.2d 285.)
The inverse condemnation claim has an additional intrinsic absurdity: the County is said to be liable to plaintiffs for its having permitted their neighbors' homes to be built with the same sewage-disposal devices as their own.
As aptly stated in Yox v. City of Whittier (1986) 182 Cal.App.3d 347, 355, 227 Cal.Rptr. 311, “It would be unfair and contrary to the relevant constitutional provisions to inflict upon the community as a whole liability for a loss resulting from a strictly private improvement.” The government is not our insurer of last resort.
The judgment in favor of the Hansches and Insurance Company of North America against the County of Los Angeles is reversed, with directions to enter judgment for the County of Los Angeles. The judgment in favor of Los Angeles County Waterworks No. 29 is affirmed. The orders striking the costs memoranda of the Los Angeles County Flood Control District, Los Angeles County Waterworks No. 29, and the State of California, are reversed, with directions to award costs to those defendants and to the County of Los Angeles. The County of Los Angeles, Los Angeles County Flood Control District, Los Angeles County Waterworks No. 29, and the State of California are to recover their costs in these appellate proceedings.
1. Throughout this opinion, the term “plaintiffs” is used to refer to the Hansches or to all three plaintiffs, as the context dictates.
2. Defendants filed cross-complaints for partial indemnity against numerous Big Rock Mesa homeowners. Trial of those cross-complaints was severed, and the present appeal does not involve the cross-claims.
3. See generally Strickland v. Federal Insurance Co. (1988) 200 Cal.App.3d 792, 794-797, 246 Cal.Rptr. 345.
4. Plaintiffs' evidence consumed 30 trial days between June 14 and September 11, 1985. The reporter's transcript of that portion of the trial comprises 4100 pages.
5. Plaintiffs' claim against the Waterworks District was based on its role in creating and operating what plaintiffs called a system to deliver water to and remove water from Big Rock Mesa; leakage from its water supply mains and pipes; and the theory it was an alter ego of the County.Plaintiffs' claim against the State was based on hillside cuts made by the State in constructing, widening, and maintaining Pacific Coast Highway, which is adjacent to Big Rock Mesa.
6. Plaintiffs were permitted to litigate their tort theories, as well as their inverse condemnation claim, at the trial. On this appeal they do not contend they were deprived of an opportunity to prove their tort claims.
7. The trial court also did not, until after completion of the trial, rule on plaintiffs' theory that the County breached a duty to warn them of the landslide. The trial court ruled against plaintiffs on this theory, and it is not an issue on this appeal.
8. The $2.075 million recovery was allocated $838,291 to the Hansches and $1,236,709 to their insurer. For prejudgment interest, the Hansches were awarded $314,338.61, and their insurer $138,513.12. For legal fees, the Hansches were awarded $345,788.88, and their insurer $258,869.50. For costs, the Hansches were awarded $3,333.33 (the amount of costs the court found they had agreed with their attorneys they would bear), and the insurer $18,802.76.
9. (See Wagner v. Director, Federal Emergency Management Agency (1988) 847 F.2d 515, 517 [second paragraph of opinion].)
10. Because of our disposition of the appeal, it is unnecessary to consider whether these findings were supported by substantial evidence.
11. Article I, § 19, of the California Constitution: “Private property may be taken or damaged for public use only when just compensation ․ has first been paid to ․ the owner․”The Fifth Amendment to the Constitution of the United States: “[N]or shall private property be taken for public use, without just compensation.”
12. The trial court made no finding that the hydraugers caused plaintiffs' damage. Such a finding, however, is probably an implicit implication of the trial court's decision.
13. See, e.g., cases discussed in Part IA of this opinion.
14. Plaintiffs did not appeal from the judgment in favor of the State. Their appeal from the judgment in favor of the Flood Control District was dismissed by stipulation.
15. Although their brief does not specify the tort theory which they pursue on appeal against the Waterworks District to support their emotional distress claim, plaintiffs apparently take the position the Waterworks is liable, as alter ego of the County, for the latter's breach of a statutory duty (discussed infra at pages 822-823).
16. A similar grievance is lodged by the County against an order summarily adjudicating issues tendered by plaintiffs. The County concedes, however, that the trial court's judgment appears not to rest on those adjudications.
17. (Underscored words were added, and lined-through words deleted, by the trial court):“1. Kenneth Putnam and James Rostron [county employees] approved the original design of the water delivery system on Big Rock Mesa.“2. James Rostron and Kenneth Putnam were authorized to approve the original design of the water delivery system on the Big Rock Mesa pursuant to authority delegated to them by John Lambie, the County Engineer, at the time they gave their approval.“3. The design so approved was reasonable in that among other things it contemplated additional residential development on the Big Rock Mesa .”“20. The mere fact of water delivery alone does not in itself constitute a basis for any liability, including inverse condemnation. [¶] a. This order shall not preclude plaintiff from offering evidence of Waterworks' participation and/or knowledge amounting to additional involvement than mere delivery of water which additional involvement might be found to be a substantial cause of the landslide and the injury to the Hansch property.”
18. “4. The Waterworks District is a separate legal, suable entity and is not the formal alter ego of the County of Los Angeles or any other agency or entity. [¶] a. However so as to avoid any confusion from this order, it does not preclude the plaintiff from offering evidence, if available, that the County and the Waterworks acted in concert and/or as joint venturers in a total system for water delivery and removal, or as joint tort feasors in any and all conduct that may be found to be a basis of a finding of liability.”
19. Plaintiffs also assert as error the trial court's revision and adjudication of a sixth issue:“13. A principal cause of the rise in the groundwater level on the Mesa is the homeowners' discharge of their water into the ground through septic disposal systems .”This ruling dealt with causation, an issue on which plaintiffs prevailed at trial. Furthermore, the adjudication was, as reworded by the court, more favorable to plaintiffs than either the formulation tendered by the Waterworks District or no adjudication at all.Plaintiffs also contend the rewording of other summarily adjudicated issues “led to a narrower base for decision and Water District escape,” but they do not specify any such rulings other than the six discussed herein.
20. Section 308(b)(1) reads as follows: “No building or grading permit shall be issued under the provisions of this subsection when the County Engineer finds that property outside the site of the proposed work could be damaged by activation or acceleration of a geologically hazardous condition and such activation or acceleration could be attributed to the proposed work on, or change in use of, the site for which the permit is requested.”
21. This is also plaintiffs' theory (in conjunction with the alter ego theory) in pursuit of a recovery of compensation for emotional distress from the Waterworks District.
22. Had the emotional distress claim progressed to proof of damages, the trier of fact might have found it necessary to savor this rhetorical morsel cum grano salis, in view of the fact plaintiffs had listed the property for sale in 1982 because they were unhappy with both the house and its remote location.
23. The Flood Control District claimed costs in the amount of $101,189; the State, $43,587; and the Waterworks District, $50,757.
24. The trial court also ruled the three prevailing defendants were not liable for plaintiffs' costs.
25. The texts of those clauses are set out in footnote 11, supra.
26. This principle covers only ordinary costs of suit, such as sheriff's, witness, and jury fees, and not litigation expenses such as experts' and attorneys' fees. The latter are recoverable only to the extent provided by statute. (County of Los Angeles v. Ortiz (1971) 6 Cal.3d 141, 98 Cal.Rptr. 454, 490 P.2d 1142; see Holtz v. San Francisco Bay Area Rapid Transit Dist. (1976) 17 Cal.3d 648, 658-659, 131 Cal.Rptr. 646, 552 P.2d 430.)
27. Two courts had already apparently noticed no constitutional problem in requiring an unsuccessful inverse condemnation plaintiff to bear the defendant's costs. (See Vinnicombe v. State of California (1959) 172 Cal.App.2d 54, 58, 341 P.2d 705; Rio Vista Gas Assn. v. State of California (1961) 188 Cal.App.2d 555, 565-566, 10 Cal.Rptr. 559.)
28. These cases may have undermined Oakland v. Pacific Coast Lumber etc. Co. (1916) 172 Cal. 332, 156 P. 468, which held the Constitution does not prevent recovery of appellate costs by the condemning agency after an unsuccessful appeal by the property owner on the issue of damages in an eminent domain case. In dictum, however, that opinion added that when the condemning agency is the appealing party, the property owner is entitled to recover his appeal costs, even if he loses the appeal. This view is on point with the holding of City of Los Angeles v. Ricards, supra, 10 Cal.3d 385, 110 Cal.Rptr. 489, 515 P.2d 585.
29. Blau relied on In re Redevelopment Plan for Bunker Hill, supra, 61 Cal.2d 21, 37 Cal.Rptr. 74, 389 P.2d 538, and on Collier v. Merced Irr. Dist., supra, 213 Cal. 554, 2 P.2d 790. Drennen relied on City of Los Angeles v. Ricards, supra, 10 Cal.3d 385, 110 Cal.Rptr. 489, 515 P.2d 585.The court may have overlooked the crucial distinction between cases in which a property owner is entitled to full compensation because there has been a taking, and cases in which no taking was established. In the alternative, in both instances the court may have assumed, based on the strong evidence at the first trial in each case, that both plaintiffs would succeed on remand in establishing a taking.
30. In Youngblood v. Los Angeles County Flood Control Dist. (1961) 56 Cal.2d 603, 612, 15 Cal.Rptr. 904, 364 P.2d 840, the Supreme Court, without comment, required the parties to bear their respective costs on appeal in an inverse condemnation action in which the Court reversed the plaintiff's judgment and remanded for a determination whether the public work was a cause of plaintiff's damage. Blau v. City of Los Angeles and Drennen v. County of Ventura also cannot be squared with this order.
31. It is impossible to attach significance to the fact that the Supreme Court depublished a decision which, among other holdings, denied costs (citing Ricards) to an inverse condemnation plaintiff who failed to prove a taking. (Bellarmine College Prep. v. City of San Jose (1978) 81 Cal.App.3d 813, 146 Cal.Rptr. 757, 764-765.)
32. The issue was hardly worth raising, since only a modest portion of plaintiffs' costs bill was allowed, and the County was ordered to pay it. (See footnote 8, supra.)
ROTH, P.J., and COMPTON and FUKUTO, JJ., concur.