Johnson v. S. San Joaquin Irrigation Dist.

CLEO DIANE JOHNSON et al., Plaintiffs and Respondents, v. SOUTH SAN JOAQUIN IRRIGATION DISTRICT, Defendant and Appellant.

C079200

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)

December 12, 2018

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 39-2011-00268620-CU-PO-STK)

In December 2010, the South San Joaquin Irrigation District (the District) closed a gate in a storm water drainage system it owned so it could make repairs. The closed gate caused storm water to flood and damage Cleo Johnson's real property, as well as her personal property and the personal property of her son, Richard Johnson, and that of Richard's fiancé, Jessica Marquez. We will collectively refer to the plaintiffs as Johnson unless it is necessary to be more specific.

Johnson sued the District and the County of San Joaquin, alleging inverse condemnation and tort causes of action. The County settled, the trial court found the District liable for inverse condemnation, and a jury found the District liable on the tort causes of action. The trial court amended the jury's damages verdict and entered judgment against the District. The trial court also granted Johnson's request for attorney's fees pursuant to Code of Civil Procedure section 1036, ordering fees based on the number of hours spent on the case and a multiplier of 1.5 under the lodestar method.

The District now contends (1) it cannot be liable because it is not authorized to provide flood control, (2) even if it could be held liable in inverse condemnation for flood control, strict liability would not apply, (3) the trial court erred in limiting the jury's consideration of damages to the full fair market value on the first day of trial, (4) the trial court erred in increasing the jury's damages award for personal property, and (5) the trial court erred in employing the lodestar method without regard to the attorney's fees actually incurred.

We conclude (1) regardless of whether the District has statutory authority to provide flood control, its decision to divert water onto Johnson's property supports inverse condemnation liability; (2) strict liability was the proper standard because the District's project was not a public flood control project that failed as designed, it was instead a repair project that worked as designed, intentionally flooding the Johnson property; (3) the trial court properly limited the evidence and jury instructions to the jury's determination of the full fair market value of the Johnson property on the first day of trial; (4) the trial court properly increased the damages award for personal property to conform to the evidence; and (5) the trial court's award of attorney's fees, using the lodestar method such as is used in some civil rights cases, is contrary to the requirement in Code of Civil Procedure section 1036 that attorney's fees are limited to what the plaintiff actually incurred.

We will affirm the judgment as to liability and damages but reverse the attorney's fee award and remand for further proceedings.

BACKGROUND

In December 2010, Johnson owned a five-acre parcel on Rossier Road in Escalon. She resided there with Richard Johnson and Jessica Marquez. The Rossier Ditch ran along Rossier Road, next to Johnson's property, and drained both irrigation and storm-water run-off. Water in the ditch flowed through a control box owned by the District and into the District's water conveyance system known as the B-15 Line. Inside the controlbox, a gate, called the Ludlow Gate, stopped water from flowing into the B-15 Line if the gate was closed. Until December 2010, the Ludlow Gate had been left open to allow storm water to drain into the B-15 Line every winter since at least 1953, when the District and the County of San Joaquin entered into a written agreement authorizing the county to drain water from the Rossier Ditch into the B-15 Line.

In November 2010, the District began repair work on the B-15 Line. To avoid creating mud and slowing down the repair work, the District closed the Ludlow Gate. The District took no action to reroute water that would normally run through the Ludlow Gate into the B-15 Line; rerouting would have cost about $23,000.

As a result of unexceptional, seasonal rainfall starting in December 2010, water that would have flowed through the Ludlow Gate into the B-15 Line backed up and flooded Johnson's property. The District refused to open the Ludlow Gate, not wanting water to hinder the repair work. As rains continued, Johnson's property essentially became a retention basin for contaminated storm water. Through January and into February 2011, Johnson's property remained flooded. The fire department directed Johnson to vacate the property as it had become a safety hazard. The water damaged the home and personal property in and around the home.

Because the flooding made the residence uninhabitable, Johnson was forced to rent another residence and pay other related expenses. As a result, she was unable to make her mortgage payments on the Rossier Road property and lost it through a short sale in February 2011.

Additional facts and procedure are recounted in the Discussion.

DISCUSSION

I

The District contends it cannot be held liable for failure to drain storm water because (A) the Ludlow Gate and B-15 Line were not designed for flood control, (B) theDistrict is not authorized to provide flood control, and (C) Johnson did not make substantial expenditures in reliance on the District's keeping the Ludlow Gate open.

A

The District claims that its project did not, as a matter of inverse condemnation law, cause the flooding of Johnson's property because its drainage system, including the Ludlow Gate and the B-15 Line, was not designed or built for flood control.

Article I, former section 14 of the California Constitution provided: "Private property shall not be taken or damaged for public use without just compensation . . . ." To recover for inverse condemnation, a private property owner must show that private property was "taken" or "damaged" by the acts of a public agency. (Cal. Const., art. I, § 19.) "[T]here must be an invasion or appropriation of some valuable property right which the landowner possesses and the invasion or appropriation must directly and specially affect the landowner to his injury." (Marina Plaza v. California Coastal Zone Conservation Com. (1977) 73 Cal.App.3d 311, 325.) The state must compensate owners who suffer actual physical injury to their property proximately caused by a public improvement as deliberately designed, constructed, and operated. (Holtz v. Superior Court (1970) 3 Cal.3d 296, 303-304.)

Here, the District must compensate Johnson because it deliberately closed the Ludlow Gate as it repaired the B-15 Line, thus making the Johnson property a retention basin for storm water. Nevertheless, the District argues this conclusion is flawed because drainage of storm water was not the intended use of the Ludlow Gate and the B-15 Line; rather, the sole intended use was for drainage of irrigation water. In support of this argument, the District primarily cites Kambish v. Santa Clara Valley Water Conservation Dist. (1960) 185 Cal.App.2d 107 (Kambish). That case, however, is inapposite.

In Kambish, a water conservation district stored water in a reservoir during the rainy season and released water in the dry season. The district had no flood control function. During a rainy period, water overflowed the banks of a canal downstream fromthe reservoir and damaged the plaintiff's property. The plaintiff, in an inverse condemnation action, alleged that the district could have, but did not, control the flow of water in the canal to avoid flooding the plaintiff's property. A jury awarded damages to the plaintiff. (Kambish, supra, 185 Cal.App.2d at pp. 108-109.) The Court of Appeal reversed, holding that because the district's sole purpose was water conservation and the district did nothing that augmented the flow of water in the canal beyond what would have been the flow without the reservoir, the district could not be held liable on an inverse condemnation theory. (Id. at pp. 110-111.) The Court of Appeal noted: "the charge against the district is only that it failed to divert or spread the flow, not that it in any way augmented the natural flow of the stream." (Id. at p. 111.) The court concluded: "Damage resulting from negligence in routine operation having no relation to the function of the project as conceived is not a taking for public use and thus not a basis for inverse condemnation. [Citation.]" (Ibid.)

The District cites Kambish for the proposition that if a government agency is not responsible for flood control services, there can be no inverse condemnation liability for storm-water flooding caused by the government agency's activities. The District argues: "[J]ust as in Kambish, [the District] was under no duty to provide flood control. Rather, its public purpose was to provide irrigation services, which can only be reliably provided if the system is properly maintained." But, unlike the activities of the district in Kambish which did not worsen the property owner's flooding, the District's maintenance of its system, during which it closed the Ludlow Gate and did not provide for alternative water flow, caused the flooding on Johnson's property. In other words, the way in which the District deliberately designed, constructed, and operated its system caused the flooding. We see no significance in the fact that the particular water that flooded the Johnson property was storm water rather than irrigation run-off because the District's actions prevented water that normally would have flowed away from the...