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Court of Appeal, Fourth District, Division 3, California.

JOHN SEYMOUR AND ASSOCIATES, Realtors, Petitioner, v. SUPERIOR COURT of the State of California in and for the County of Orange, Respondent; CITY OF ANAHEIM, Real Party in Interest.


Decided: August 06, 1984

Ruston & Nance and Lee P. O'Connor, Tustin, for real party in interest.


The superior court sustained a demurrer to a cause of action in inverse condemnation without leave to amend, and plaintiff Seymour brought this proceeding in mandate.


Seymour's Anaheim office building was destroyed in a catastrophic fire on April 21, 1982.   Seymour claims the fire ignited when uninsulated street lighting wires, installed and maintained by the city, came into contact with palm trees also owned and maintained by the city.   The fire was fanned by hot, dry, Santa Ana winds and spread rapidly, destroying several blocks of commercial and residential property.

Seymour brought suit against the city on a variety of theories, including negligence, products liability, failure to discharge a mandatory duty, maintenance of a dangerous condition of public property, and inverse condemnation.1  The city's demurrer to the cause of action based on failure to perform a mandatory duty was overruled, but the court sustained the demurrer to the products liability and inverse condemnation causes of action without leave to amend.   Seymour only seeks review of the inverse condemnation ruling.2


 The Supreme Court established the general rule of liability based on inverse condemnation almost twenty years ago:  “any actual physical injury to real property proximately caused by the improvement as deliberately designed and constructed is compensable under article 1, section [19] of our Constitution whether foreseeable or not.” 3  (Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 263–264, 42 Cal.Rptr. 89, 398 P.2d 129.)   There, a major landslide triggered by county road construction damaged acres of developed and undeveloped property.   The Supreme Court affirmed the judgment against the county on an inverse condemnation theory, observing the property damage was not intentional, negligent, or foreseeable, but was “the proximate result of the construction of a public work deliberately planned and carried out by [the county] ․”  (Id., at p. 262, 42 Cal.Rptr. 89, 398, P.2d 129.)

The Albers holding was reaffirmed five years later in Holtz v. Superior Court, supra, 3 Cal.3d 296, 90 Cal.Rptr. 345, 475 P.2d 441.   In Holtz the court granted a peremptory writ of mandate to compel reinstatement of an inverse condemnation cause of action based on damage caused by excavation for a San Francisco subway.   Petitioners there claimed the construction undermined the lateral support of adjacent property.   The court recognized “physical damages proximately resulting from a public improvement must be considered as direct a ‘cost’ as the property actually condemned or the materials actually utilized in its construction.   Indeed, in most instances a public entity may be able to forestall unintended physical damage by initially employing more protective measures in the actual construction of the project;  in the instant case, for example, defendants could probably have prevented the damage to plaintiffs' property by expending additional funds in shoring up its excavation.   This comment does not imply, however, that defendants would necessarily be negligent in not expending such funds;  the likelihood of the damage may have been so remote and the expense of the additional protection so great that it was reasonable (hence, non-negligent) for defendants to forego supplemental measures initially.   Nevertheless, since the undertaking of the excavation at this lower cost created some risk, however slight, of damage to plaintiffs' property, it is proper to require the public entity to bear the loss when damage does occur.  [Fn. omitted.]”  (Id., at pp. 310–311, 90 Cal.Rptr. 345, 475 P.2d 441.)

The same analysis applies here.   Seymour alleges its property damage “was substantially caused by defendants', and each of their, actions in planning, approving, designing, constructing, installing, owning, maintaining, operating, inspecting and controlling the portion of the said electrical power lines and palm trees ․”  In particular, Seymour complains the power lines were uninsulated and installed too close to the city's trees, thus creating a risk of fire.   These allegations are more than sufficient to withstand attack at the pleading stage.  (Id., at p. 302, 90 Cal.Rptr. 345, 475 P.2d 446.)

 In attempting to distinguish this case from those recognizing a cause of action for inverse condemnation, the city argues article I, section 19 was not “intended to impose liability upon public entities for fire loss caused by broken power lines during heavy winds ․  The purpose of the power line is to carry electricity, not start fires.”   A similar argument by a municipal defendant was found wanting in Yee v. City of Sausalito (1983) 141 Cal.App.3d 917, 190 Cal.Rptr. 595:  “[the city] draws an artificial and, for our purposes, legally irrelevant distinction between the intended use of the public improvements and the unintended or unforeseeable damage which necessarily resulted from the use ․”  (Id., at p. 921, 190 Cal.Rptr. 595.)   The court added, “the public purpose served by the gutter was to collect and convey surface water away from the surrounding residences.   The injury [soil subsidence caused by a ruptured storm drain] occurred while the improvement was operating as intended.   There was no evidence that the injury occurred as a result of the use of the improvement for some purpose unrelated to storm drainage, e.g., as a catch basin for the accumulation of debris․ [¶] ․ [The property owner] should not be made to suffer a disproportionate burden for the benefit of the public as a whole.”  (Id., at p. 922, 190 Cal.Rptr. 595.)   Here, accepting Seymour's allegations as true, the property damage occurred as the power lines were operating as intended, carrying electricity, when they came into contact with nearby trees in high winds.   The city may have defenses to the inverse condemnation claim (Ingram v. City of Redondo Beach (1975) 45 Cal.App.3d 628, 633–634, 119 Cal.Rptr. 688), but they are for the trier of fact to resolve.

 We have received and considered the response to the petition.   Issuance of an alternative writ would add nothing to our review, and a peremptory writ in the first instance is appropriate.  (Code Civ.Proc., § 1088;  Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180, 203 Cal.Rptr. 626, 681 P.2d 893.)   Let a peremptory writ of mandate issue directing the superior court to vacate the order sustaining the demurrer without leave to amend and to enter a new order requiring the city to answer within thirty days.


1.   Numerous other property owners, tenants, and insurers filed similar complaints for loss of real and personal property.   The actions were consolidated and assigned to one judge for all purposes (Code Civ.Proc., § 404.1).

2.   “Where it appears that the trial court has made a ruling which deprives a party of the opportunity to plead his cause of action or defense, relief by mandamus may be appropriate to prevent a needless and expensive trial and reversal.”  (Tate v. Superior Court (1963) 213 Cal.App.3d 238, 251, 28 Cal.Rptr. 548;  quoted with approval in Holtz v. Superior Court (1970) 3 Cal.3d 296, 301, fn. 4, 90 Cal.Rptr. 345, 475 P.2d 441.)

3.   Article 1, section 19 of the California Constitution provides in part, “Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into Court for, the owner․”

CROSBY, Associate Justice.

WALLIN, Acting P.J., and SONENSHINE, J., concur.

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