Mass v. City of San Diego

HOWARD J. MASS et al., Plaintiffs and Appellants, v. CITY OF SAN DIEGO, Defendant and Respondent.

D077307

California Court of Appeals, Fourth District, First Division

June 24, 2021

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. 37-2018- 00009001-CU-EI-CTL Joel R. Wohlfeil, Judge. Affirmed.

David A. Kay, for Plaintiffs and Appellants.

Mara W. Elliott, City Attorney, George F. Schaefer, Assistant City Attorney, and Tyler L. Krentz, Deputy City Attorney, for Defendant and Respondent.

IRION J.

Plaintiffs Howard J. Mass, Nancy M. Mass, and Jeanine Coffman (together Plaintiffs) appeal from a judgment in favor of defendant City of San Diego (the City), following the grant of the City's motion for summary judgment.

In the underlying complaint, Plaintiffs alleged that the City improperly “approved[, ] designed, constructed maintained, modified, repaired, controlled, and/or caused to be constructed” a “brow ditch”^[1] on their residential properties. Plaintiffs sued the City for damages and injunctive relief when, following a severe rainstorm in 2017, a portion of the brow ditch on their properties was undermined, which washed water, mud, and debris into their backyards.

In granting summary judgment, the trial court ruled that the City met its initial burden of producing a prima facie showing of a complete defense to all the claims-namely, that the brow ditch was not a public improvement-and that Plaintiffs did not meet their responsive burden of establishing a triable issue of material fact. Because, as we explain, Plaintiffs have not shown on appeal that the brow ditch either provides a legally cognizable public benefit or is a public improvement, they did not establish reversible error. Accordingly, we will affirm the judgment.

I. FACTUAL BACKGROUND^[2]

A. The Parties and Plaintiffs' Properties^[3]

In 1963, in approving Subdivision Map No. 5280, the City created the College Valley Subdivision (College Valley) in the College Area of San Diego south of San Diego State University. In their complaint, Plaintiffs allege that they own two properties in College Valley on Maisel Way in San Diego (Plaintiffs' Properties): plaintiffs Mass. own lot 19 with a street address of 5463 Maisel Way (Mass property); and plaintiff Coffman owns lot 18 with a street address of 5455 Maisel Way (Coffman property).

Plaintiffs' Properties are next to each other in the middle of the block on the south side of Maisel Way, a small cul-de-sac with fewer than 10 lots on the south side of the street, with the Mass. property directly to the east of the Coffman property. Both backyards, as well as other backyards on the south side of Maisel Way, have a steep uphill area which contains a concrete brow ditch that runs horizontally near the top of the hill. The flow of the brow ditch is from east to west and runs primarily straight across the hillside, except for a small portion on the Coffman property which curves back and forth. The curved portion of the brow ditch was part of a 1996 repair of the (formerly straight) brow ditch, which the City performed when a City sewer main failed, causing damage to the brow ditch. (See pt. I.C., post.) At the time, the owners of the Coffman property (plaintiff Coffman and her husband) authorized the City to perform the repairs to the property.

Across the southern border of Plaintiffs' Properties on the southern side of Maisel Way (and thus across the southern boundary of College Valley) is the northern boundary of the El Cerrito Heights Unit No. 4 Subdivision (El Cerrito Heights). The City earlier created this subdivision in 1951 by its approval of Map No. 2818. The northern boundary of El Cerrito Heights-which backs up to and is at a higher elevation than Plaintiffs' Properties-is the southern boundary of College Valley. Lots 12 and 13 of El Cerrito Heights, which abut Plaintiffs' Properties in College Valley to the north, are the last two lots on a short cul-de-sac on Redland Place, which contains only six lots on the north side of the street.

B. The February 2017 Incident

On February 28, 2017, during a heavy rainstorm, a part of the concrete brow ditch failed. In their complaint, Plaintiffs allege that this failure of the brow ditch caused damage to each of Plaintiffs' Properties (February 2017 Incident). The part of the brow ditch that failed in the February 2017 Incident is east (upstream) of the portion of the brow ditch that the City repaired in 1996 when its sewer main failed. (See pt. I.C., post.)

C. The History of the Brow Ditch

The brow ditch is located on private property and drains runoff only from private property.^[4] The parties agree that a private party constructed the brow ditch, likely as part of the development of College Valley. According to Plaintiffs' expert, “th[e] brow ditch would have been constructed as part of the improvements for the subdivision, and those are usually done by the private developer.”

There is no evidence that the City ever planned, installed, or regularly maintained the brow ditch. The evidence further establishes that there are no records that the City ever “constructed a concrete brow ditch” in or near Plaintiffs' Properties.

Similarly, the City's Storm Water Division database does not have any records that the City either operated or maintained a concrete brow ditch in or near the backyards of Plaintiffs' Properties. Likewise, the City's Transportation and Storm Water Department does not have a record of any maintenance ever having been scheduled for that brow ditch. This is consistent with the fact that the City has no legal access to reach the brow ditch on Plaintiffs' Properties.

There is no evidence that anyone attempted to dedicate the brow ditch to the City or that the City ever attempted to accept a dedication of the brow ditch.^[5]

El Cerrito Heights (Map No. 2818) contains a four-foot undefined easement which circles the entire subdivision-i.e., not just the northwestern-most lots which abut the southern boundary of College Valley where the brow ditch and Plaintiffs' Properties were built many years later. It is not labeled as a “drainage easement, ” although drainage easements are typically labeled as such, and other easements on the map contain such a label. In short, the brow ditch in College Valley is not located within the four-foot undefined easement in El Cerrito Heights.

College Valley does not have a public easement at the location of the brow ditch. To the extent College Valley benefits from the brow ditch, only a select few lots, including Plaintiffs' Properties, are potentially affected.

The brow ditch does not connect to any upstream public drainage facility or drain water from any public drainage facility.^[6] The only City facility near the brow ditch is an underground sewer main. This sewer main runs north-south and is located between College Valley lots 18 (the Coffman property) and 17 (the lot to the west of the Coffman property).

In 1996, a different City sewer main failed, causing damage to a part of the brow ditch located in the Coffman Property-i.e., to the west (downstream) of the part that failed in the February 2017 Incident. The City hired a contractor both to clean up damage from the failed sewer main and to repair the damaged part of the brow ditch. The City requested, and Coffman gave, written permission to the City's contractor to go onto the Coffman property to effect the clean-up and repairs. The repaired part of the brow ditch curves to the south and back to the north (like a “U”), whereas the rest of the original brow ditch runs in a straight line (downstream from east to west).

On four or five occasions between 1981 and 1987, two to three City workers cleaned out surface debris in that part of the brow ditch that traverses the few lots on the south side of Maisel Way.

Since then, the evidence is that only private property owners, including Plaintiffs and others, cleaned, maintained, and repaired the brow ditch. For example, prior to the February 2017 Incident, one of Plaintiffs cleaned the brow ditch “multiple times”; and another of Plaintiffs and her husband cleaned the brow ditch “about ten to 15 times, ” including hiring a professional company on at least one occasion. Also, “a bunch of times through the years, ” one of Plaintiffs' neighbors hired another neighbor to clean the brow ditch. In the late 1990's or early 2000's, one of Plaintiffs installed a fiberglass bridge to repair a portion of the brow ditch in her yard. Prior to the February 2017 Incident, one of Plaintiffs' neighbors reinforced a section of the brow ditch with more dirt. In addition, “[m]ost likely before the [February] 2017 [I]ncident, ” one of Plaintiffs patched a hole in the brow ditch in her yard with foam and concrete. Finally, approximately two weeks after the February 2017 Incident, another of Plaintiffs installed a 40-foot pipe “into the brow ditch to try to regain some of the drainage.”

At no time did any of Plaintiffs ask the City for permission to clean or repair the brow ditch, seek help from the City with cleaning or repairing the brow ditch, or (prior to the present litigation) complain to the City about cleaning or repairing the brow ditch.

II. PROCEDURAL BACKGROUND

In February 2018, Plaintiffs filed the underlying action. They sued the City for damages and an injunction, alleging causes of action for condemnation, nuisance, trespass, and injunctive relief, ^[7] based on the injuries they alleged they suffered as a result of the February 2017 Incident. All of Plaintiffs' claims are based on the allegations that the City “approved[, ] designed, constructed maintained, modified, repaired, controlled, and/or caused to be constructed said brow ditch, and that the brow ditch...