HomeMy WebLinkAboutCity Council Position on Legislation recommended by the Inte Council/Agency Meeting Held - 19440 (�
Deferred/Continued to
*Approved ❑ Conditionally Approved ❑ Denied City Jerk Signa re
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Council Meeting Date July 19 2010 Department D Number AD10-022
CITY OF HUNTINGTON BEACH
REQUEST FOR CITY COUNCIL ACTION
SUBMITTED TO Honorable Mayor and City Council Members
SUBMITTED BY Mayor Pro Tern Jill Hardy Chair on behalf of the Intergovernmental
Relations Committee Members Council Members Joe Carchio and
Devin Dwyerr
PREPARED BY Fred A Wilson City Administrator
SUBJECT Approval of a City Council Position on Legislation a Regulation or
Budget Issue Pending Before a Federal State or Regional
Government as Recommended by the City Council Intergovernmental
Relations Committee (IRC)
Statement of Issue Approval of a City Council position on legislation a regulation or
budget issue pending before a Federal State or Regional government as recommended by
the City Council Intergovernmental Relations Committee (IRC)
Financial Impact If approved State Budget Item 0250 could have a negative financial
impact on the city
Recommended Action Motion to
A) Approve Opposition to AB 1955 (De La Torre) - Public Officers Incompatible Offices
B) Authorize a letter opposing State Budget Item 0250 which would add a $3 00 surcharge
to all parking-violations
C) Authorize a Letter in Support of a Petition for Writ of Mandamus in Yorba Linda Water
DlstrIct v Supenor Court ►n and for the County of Orange California Court of Appeal
Case No G043854 (Lindholm/Itani v Yorba Linda Water District Superior Court No 30-
2009-00320239-C U-E I-CXC)
Alternative Action(s)
-173- Item 13 a Page 1
REQUEST FOR COUNCIL ACTION
MEETING DATE 7/19/2010 DEPARTMENT ID NUMBER AD10-022
Analysis
OPPOSE AB 1955 (De La Torre) — Public Officers Incompatible Offices
AB 1955 failed passage in the Senate Local Government Committee If approved AB 1955
would have impacted local officials who legitimately serve on the boards of multiple organizations in
conjunction with their elected office Elected officials regularly serve as appointed members of other
local agencies such as transportation commissions joint powers authorities air quality management
districts and metropolitan planning organizations These appointments have long been understood
to be compatible AB 1955 in its current form is written too broadly and could have caused many of
these elected officials to be in violation of serving in an incompatible office
AB 1955 confused current law and would have had serious unintended consequences It could have
forced council members currently serving on other agencies to forfeit their council office even though
many of these positions can only be held by an actively serving City Council Member
Governmental service requires an appropriate separation of powers and the practice of personal
ethics Current law provides adequate protections against cases where elected officials improperly
hold incompatible offices The penalties in this area of the law are severe—forfeiture of office It is
important that these laws be as precise as possible
The Intergovernmental Relations Committee has reviewed AB 1955 and recommended the city
oppose it in its current form Although AB 1955 failed passage in the Senate Local Government
Committee, the City Council may still wish to go on record as opposing the bill
The Intergovernmental Relations Committee has reviewed this bill and is recommending the city
oppose AB 1955 in its current form
Authorize a letter opposing State Budget Item 0250 which would add a $3 00
surcharge to all parking violations
The stated policy goal of this $3 00 surcharge on parking violations is to provide funding so
the State can avoid court closures However such a surcharge on parking citations is no
longer appropriate
Prior to 1992 parking violations were a criminal offense and contested parking citations were
heard in criminal courts As a result parking fine revenues were used to offset the cost for
courthouse construction Parking fine surcharges were never intended to be used for court
operations
Today there is no longer a nexus between local parking enforcement and court operations
When AB 408 (Epple) decriminalized parking offenses it created a civil administrative
procedure outside the court system for the public to contest parking citations Now only
citations that are appealed from our administrative hearings go to court Appealed court
hearings are very rare and all court fees related to the appeal are fully paid by the involved
parties
In 2009, the City of Huntington Beach processed over 72,000 parking citations, but had only
18 administrative hearings appealed to court Based on these 2009 statistics a new $3 00
surcharge would mean the City of Huntington Beach will be have to pay an additional
$216 000 to the courts This is an average of$12 000 per court appealed parking citation
Item 13 - Page 2 -1 T4-
REQUEST FOR COUNCIL ACTION
MEETING DATE 7/19/2010 DEPARTMENT ID NUMBER AD10-022
Given the small number of local parking violations that are appealed up to court a surcharge
on parking citations cannot be justified Its only purpose is to help cover the court's budget
shortfall
At the same time placing the responsibility for administering the new $3 00 surcharge on
local police enforcement agencies will add a real cost to our parking fine process It will add
additional staff time computers will need to be reprogrammed and tickets would require
reprinting The last $3 00 parking fine increase added pursuant to SB 1407 caused a four
to six month conversion lag time Given the city s current budget declines and loss of staff
this problem will be even more acute
The intergovernmental Relations Committee has reviewed this requestand is recommending
that the Mayor send a letter to our local State Legislators asking them to oppose State
Budget Item 0250 which would authorize the $3 00 court surcharge on all parking citations
Because the legislature is currently negotiating the state budget a letter was sent from the
Mayor on June 30
Authorize a Letter in Support of a Petition for Writ of Mandamus in Yorba Linda
Water District v Superior Court in and for the County of Orange, California Court of
Appeal Case No G043854 -
(Lindholm/Itani v Yorba Linda Water District, Superior Court No 30-2009-00320239-
CU-EI-CXC)
The Yorba Linda Water District is requesting support in their petition to the court for a writ of
mandate to correct an order of the Orange County Superior Court overruling the Water
Districts demurrer in an inverse condemnation cause of action for alleged deficiencies of the
Districts distribution system during a firestorm
In a manner without precedent the Respondent Court has ordered the Yorba Linda Water
District to stand trial as an inverse condemnation defendant facing constitutional liability to
dozens of property owners for the results of the catastrophic Freeway Complex Fire of
November 2008 that started in another city and that the Water District had no part in
creating
There is no precedence in California that holds a government agency liable for a physical
inverse condemnation where the agency had no part in the physical act that caused the
property damage Nor is there any appellate case in California that holds a government
agency liable for a physical inverse condemnation for fire damage from a fire that the agency
had no part in creating
Because this case would set a new precedence that could have devastating economic
impact on public agencies throughout the state the Intergovernmental Relations Committee
is recommending that the City Council send a letter of support for the Yorba Linda Water
Districts request for a writ of mandate in this case
Environmental Status N/A
Strategic Plan Goal Improve internal and external communication and
maintain our financial reserves
-175- Item 13 - Page 3
REQUEST FOR COUNCIL ACTION
MEETING DATE 7/19/2010 DEPARTMENT ID NUMBER AD10-022
Attachment(s)
1 AB 1955 (De La Torre) — Public Officers Incompatible Offices
2 AB 1955 Bill Analysis
3 League of California Cities Sample Opposition Letter
4 Letter to State Legislator regarding Budget Item 0250
5 Request for a Amicus Curiae Letter of Support from Yorba Linda Water District
6 Petition by the Yorba Linda Water District to the Fourth Appellate District Division
Three Court
7 Draft Letter of Support from the Association of California Water Agencies
Item 13 - Page 4 -176-
ATTACHMENT # 1
AMENDED IN SENATE JUNE 23, 2010
AMENDED IN ASSEMBLY APRIL 12, 2010
AMENDED IN ASSEMBLY MARCH 18, 2010
CALIFORNIA LEGI SLAT URE-2009-10 REGULAR SESSION
ASSEMBLY BILL No 1955
Introduced by Assembly Member De La Torre
February 17, 2010
An act to amend Section 1099 of the Government Code, and to add
Seetion 33207 to the Health and Safi*Code,relating to public officers
LEGISLATIVE COUNSEL S DIGEST
AB 1955, as amended, De La Torre Public officers incompatible
offices
(1) Existing
Existing law prohibits a public officer, including, but not limited to,
an appointed or elected member of a governmental board,commission
committee or other body from simultaneously holding 2 incompatible
public offices, as specified
This bill would provide additional etfetimstan examples of
situations when 2 public offices are incompatible and specify when a
member holds an office that may exercise powers over another office
as provided
(2) The Community Redevelopment Law authonzes the establishment,
ofbltght in those eommunthes A legislative body that deelares a need
for an ageney may either appoint members of the ageney of deelare
itself to be the ageney
96
Item 13 - Page 6 -178-
AB 1955 —2—
This
stmttltaneously serve on an ageney and the legtslattve body that has
deelared Aself to be the ageney shall not be deemed to be holdtng
Vote majority Appropriation no Fiscal committee no
State-mandated local program no
The people of the State of California do enact as follows
1 SECTION I Section 1099 of the Government Code is amended
2 to read
3 1099 (a) A public officer, including, but not limited to, an
4 appointed or elected member of a governmental board,commission,
5 committee,-or other body,shall not simultaneously hold two public
6 offices that-are incompatible Offices are incompatible when any
7 of the following circumstances are present, unless simultaneous
8 holding of the particular offices is compelled or expressly
9 authorized by law
10 (1) Either-of the offices may audit, overrule, remove members
11 of, dismiss employees of, or exercise supervisory powers over the
12 other office orbody
13 (2) Based on the powers and jurisdiction of the offices, there
14 is a possibility of a significant clash of duties or loyalties between
15 the offices
16 (3) Public policy considerations make it improper for one person
17 to hold both offices
18 (b) Examples of situations in which public offices are
19 incompatible under subdivision (a) include but are not limited to
20 the following
21 (1) An office has the power of eminent domain over property
22 that is under the geographic jurisdiction of the other office
23 (2) An office has the power to set a fee or a rate or to impose a
24 tax or a levy that may directly or indirectly affect the other office
25 (-b)
26 (c) When two public offices are incompatible a public officer
27 shall be deemed to have forfeited the first office upon acceding to
28 the second This provision is enforceable pursuant to Section 803
29 of the Code of Civil Procedure
30 (e)
96
-179- Item 13 - Page 7
—3— AB 1955
1 (d) This section does not apply to a position of employment,
2 including a civil service position
3 (d)
4 (e) This section shall not apply to a governmental body that has
5 only advisory powers
6 (e)
7 (/) For purposes of paragraph (1) of subdivision (a), a member
8 of a multimember body holds an office that may audit, overrule
9 remove members of,dismiss employees of,or exercise supervisory
10 powers over another office when the body has any of these powers
11 over the other office or over a multimember body that includes
12 that other office
13 (g) For purposes of subdivisions (a) and (b) a member of a
14 multimember body holds an office that may exercise powers over
15 another office when the body has power over the other office or
16 over a multimember body that includes the other office
17 (4)
18 (h) This section codifies the common law rule prohibiting an
19 individual from holding incompatible public offices
20 SECTION I Seetion 1 099 o fthe G__-__.-_--_nt Code_ amended
21 to read
22 , an
23
24 eommAtee,of other bodr,shall.not snntAtaneously hold two pub4te
25
26 of the following eifeumstanees an., ,
27
28 authortzed by law
29 , femove members
30 of,dtsmtss employees of;
31 other offiee of body
32
33
34 the-offiees
35
36 to hold both offlees
37
38 of emment domain in an area in whteh the geographie jurtsdietions
39 of eaeb offiee or body overlap
96
Item 13 - Page 8 -180-
AB 1955 —4—
1
2
3 or indtreetly aff�et the other offiee or body
4
5 to investtgate, monitor, or sue the other offiee or bo4r
6 ,
7 shall be deemed to have f6rfetted the first offiee upon aeeedtng to
8
9 of the Code of C-fvtl Proeedtfe
10 ,
11
12 (d) Thts seetion shall not apply to a goventmet-Aal body that has
13 only advtsory powers
14 , a me
15 of a muittmember body holds ati offiee that may attdtt, overrd4e,-
16 ,
17 powers ovef another offiee when the body has any ofthese powers
18
19 that ,.thef o ffie.
20
21
22 ,
23 tofead
24
25
26
27
O
96
-181- Item 13 - Page 9
Item 13 - Page 10 -182-
SENATE LOCAL GOVERNMENT COMMITTEE
S net Il v C Ch
BILL NO AB 1955 HEARING 6/30/10
AUTHOR De La T e FISCAL N
VERSION 6/23/10 CONSULTANT Detw 1
INCOMPATIBLE OFFICES
B kg und_ _d Ex t ng L w
In 1850 the Leg 1 to e d pt d th Engl h = n l w t
g de th C l f n c u t t th t nt th t the mm
law n t n n to t w th th Un t d States C t tut
th C 1 f n C n t tut n t t t tut y 1 w M y
ou t d nd Atto ney G als p n t p t d
the mm law b n hold g n mp t ble ff A
p n wh um s the dot f nd n mp t bl
ff ce t m t lly f rfe t th f r t If
F t t d by 1 1 If I wh g d the b o
n mp t bl ff the L g I t e d f ed th mm n
1 w d ct (SB 279 R m 2005) W tten w th th
Att n y G 1 h 1p th t t t d l e th t. publ
ff 1 h 11 t mint ly h Id tw publ ff
th t e mpat b1 St t l w p 11 t th
cum t whe e ff n mp t bl
E th ff n d t v u1 m0v memb
f d m mpl ye f p v e the othe
ff b dy
A g f nt I h f d t l y It betw
the ff po bl
Publ p 1 y n d t ns m k t mp op t
h Id b th ff e
R g d ng th f t um t t t 1 w y th t
m mbe of a mint membe body h ld ff e th t m y
ud t v 1 m ve m mb f d m mp1 Yee f
Re v se n the off wh th mule memb b dy h
ny f th p we v th th ff v a
mult m mb b dy th t l d th t th If
The b ag n t h Id ng n mp t b1e ff c d e n t pply
Wh n t to law mp 1 11 w molt u
If e h Id ng
T g ve nme t empl ym t 1 d g v l e v e
p t n
I
AB 1955 6/23/10 Pag 2
To dv s y b d
When tw publ ff e e mp t bl publ If
d an d t h ve f f t d th f t ff e when um q
th nd off e Th Att y G 1 n fo th
b n
Th L A gel C —ty D t t Att ney p o e ut. ng th
f t known e d th 2005 R m b 11 Se g
C lde w n le t n t th M yw d ty u I n 2005
d 2006 w n le t n t th W t R plen hment
D t t f S uth C 1 f b d f d t In
2008 th D t t Att n y d t mov C ld o f m
h ty un l e t C Id n w se nd t m th
M yw d ty un 1 N vemb 2009 but gned f m
h u e p red f t t m l t th t m th H w t
w o f the e d t m but th c e g n t C Id
t 11 Rend ng Th D t t Att y w nt the t tut
t b m e p f Pell ng t th m t wh e
p bl If mp t bl
P p d L w
A mbly B 11 1955 dd tw mpl f to t n wh h
p bl ff e e mp t bl
Wh ff h m t d m p w v
p p ty that und th th ff
lu d t n
Wh n ff h th p w t et fee t
mp t 1 vy th t m y d tly
d tly ffe t th th ff
AB 1955 del t the u t d 1 t o th t m mb f
mull m mbe b dy h Id ff th t m y ud t v 1
M m mb f d m mpl y f p v
th If wh n the m It m mb b dy h ny f th
p w v th th If v mulr m mb b dy
th t 1 d th t th ff In t d the b l y
th t m mb f m 1t m mb b dy h Id n ff th t
m y p w v the If wh th
mult m mb b dy h p w th th ff e v
It m mb b dv th t lud th th ff
C mm t
AB i955 6/23/10 P g 3 -183- Item 13 - Page 11
n omp t bl p bl ff s el a pe fectly
unde t ndable p m e One pe son cannot e v two
mpet ng me t v t bly th the w 11 b - -
mp om d Th publ t ust n state nd 1 cal
ff 1 t k w ng th t l de w 11 dv u th
st tue t me e is T y g t p m t tw c mpet ng
gen e nfl t g go 1 lw y e ults n a nfl t of
Le t d m n g nteg ty nd publ t ust AB 1955
bu ld th p m s by I t ng tw e mpl f
to t n wh h publ c off e mpat bl Th
lea e the t tuto y 1 ng ag the e s e t f p bl c
off I t t p t a d av d mp pe behav
St tut y l ty 1 m ke t o t dep e ff 1
who c n p bl c nteq ty
2 T ead 1 ghtly_ Th language of the 2005 cod f cat n
of the mm l w d t ne w the p duct f leg 1
e pe t a ful dr ft ng The Atto ney Ge 1 sh ped th
f n l l gu g b ed n deep knowledge f ase l w and
p f mal leg 1 p ns The t t t pe ly de la e
th t t d f e th comm l w ule as d d ep at
de 1 t n the 2005 R me o b 11 Th x mple e ted
by AB 1955 we e of p t f the Leg slatu 2005
cod f at o f the mm n law ul The C — tte may
w h t d h w AB 1955 can add ex mpl b t t 11
to n th 1 m th t t d f e th MM l w E the
the 2005 1 g 1 t on was n mplete a d w gly la med to
d fy th omm n 1 w AB 1955 g bey d th to mer
mmon law nd w ngly 1 m to cod fy th t ule Whe
w t ng state-law th t lead to th ut m t to fe to e of
publ c ff 1 tatu leg I t m t p o e d
c f lly
3 Re p f on nt nded on equ_ e_ _ Wh le leg 1
h 1 s 7udg nd publ lawye s k w nd nde t od
th omm law d ct n th t b ed n mp t hle ff e
1 s ph t t d elect d ff c als occas lly stumbled
n that p h b t w thout know no wh t th y we do g
Othe m y h v d l be ately v l ted the b h p ng t
t get caught By w t ng the ule nt th statute the
Leg 1 to m v d th excu e f n t know g B t t 1
1 ft pla e th ed t duct gen y by ag n y
n ly AB-1955 m y h ve the u nt nded q en o f
t pp g p p bl ff al by 1 t g tw fa ly —0
AB 1955 6/23/10 P ge 4
to t o ut m t mple f n mp t ble ff e
Be u e m y t o w to d t cts no s w agent e
et t 1 ty t nd h ge to v th ff
p b bly t h ld m ny th p bl ff ces d AB
1955 On q y monthly w t s we I t ty
b lls m y d e tly nd e tly ffe t the 1 1
g v me t op t o Th C mm tt m y w h to
n de wheth b a d . mbe of a m n p l ut 1 ty
d st t that 11 t l ele t ty uld be n
m qu t b t m nt d st t gove g b a d In to d f
th g n y by age y ly u ed unde e t 1 w AB
1955 may g t f Whe th t tut s th t b d wh h
ff e t mpat bl
4 _C t me out Eve when pe s n h ld two ff ce
th t uld b mp t ble unde th u e t t t t the
b n q t h ld ng n mp t bl ff c d t pply whe
t to 1 w 11 w mpel du 1 off ce h ld g Seve 1
t to laws eq e 11 w l c l ff l t s v n
the p bl ge e Th Co to e K He t b g A t f
ex mple q tw u ty upe v so s d tw c ty
n 1 m mb ( m yo ) t e ve LAFCO
mm Ab ut half f th LAFCO b y p 1
d t t p t t ve wh 1 m mb f d st t
g ve n q be ds Th C mmu ty Red v l pm nt L w all w a
ty u 1 u ty bo d f supe v s t o the
pp nt d vel pm t g y 0 decl e t elf to be the
agency M th 90 f th c t es a d nt es th t us
edevel pm t h v de 1 d th m elv t b th gen e
By dd g t ampl t the statute AB 1955 w 11 au
m 1 1 g v ment t ek pe f 1 f t th t
du 1 off h ld g n t p oh b ted L g I t ho ld
get e dy f m e qu t
A sembly A t
A mbly L 1 G m nt Comm tt 8 0
A embly F1 72 0
Supp t d Opp_ t (6/24/10)
Supp t L s Angel C unty D at t Att y Off
Opp t A t n f C 1 f n w t Ag n es
C i f St t As t n f C unt C l f
AB 1955 6/23/10 P q 5
T t o t n L gu f C 1 f C t Al an d
Cou ty C ge t M geme t Ag y E t n M n p l
u K Item 13 - Page 12 Gid L ty F th 11 E t -184-
a
Met op 1 to T ri t D t t South Co st A Qual ty
M nagement D st ct. Southe n C 1 fo n A a at on f
G ve nm t St kt n Ea t W to D t t Th ee Valley
Mun pa1—W t D t t V lley Ag W t C al t w t
Replen shm nt D t ct f S uthe n C l f n Me le J
Al h re Ph D
-185- Item 13 - Page 13
Item 13 m Page 14 -186-
DATE
Assembly Member Hector De La Torre
State Capitol Building, Room 4016
Sacramento, CA 95814
RE AB 1955 (De La Torre) Public Offices Incompatible Offices
NOTICE OF OPPOSITION (As Amended 612412010)
Dear Assembly Member De La Torre,
The city/town of opposes your AB 1955 which attempts to clarify what constitutes an
incompatible office
In practice, AB 1955 would impact local officials who legitimately serve on the boards of
multiple organizations in conjunction with their elected office Elected-officials frequently serve
as appointed members of other local agencies such as transportation commissions,joint powers
authorities, air quality management districts, and metropolitan planning organizations This bill
would cause many of those elected officials to be in violation of serving in an incompatible
office We are particularly concerned for the following reasons
• AB 1955 is written too broadly and likely captures offices that have been long understood to
be compatible
• Should this bill become law it may force council members currently holding dual offices to
forfeit their council office, where they would not have to otherwise
• Local public officials will face uncertainty and unfounded accusations that they are serving
on incompatible offices AB 1955 confuses current law and would have serious unintended
consequences for local elected officials
Governmental service requires an appropriate separation of powers and the practice of personal
ethics Current law provides adequate protection against cases where officials improperly hold
incompatible offices The penalties in this area of the law are severe—forfeiture of office It is
important that the laws in this area be precise as possible
For these reasons, the city/town of opposes AB 1955
Sincerely,
Name, Title
cc Chair and Members, Senate Local Government Committee
Peter Detwiler, Chief Consultant, Senate Local Government Committee
Natasha Karl, Legislative Representative, League of California Cities
-1 g7- Item 13 - Page 15
RNALLY
LEFT
BLANK
Item 13 - Page 16 -188-
-189- Item 13 a Page 17
June 22 2010
Senator Tom Harman
California State Senate
State Capitol
Room 3070
Sacramento CA 94248-0001
RE Budget Item 0250 Judicial Branch - $3 00 Local Parking Surcharge
Dear Senator Harman
The Huntington Beach Police Department respectfully opposes the $3 00 parking fee
surcharge adopted by the respective budget subcommittees of the California State
Senate and Assembly While we agree with the stated policy goal of avoiding court
closures it is inappropriate to impose a $3 00 parking fee surcharge on local
governments (and others) to fund this goal
Prior to 1992 parking violations were a criminal offense and contested parking citations
were heard in criminal courts As a result parking fine revenues were used to
underwrite courthouse construction Parking fine surcharges were never intended to be
used for court operations
Today there is no nexus between local parking enforcement and court operations
When AB 408 (Epple) decriminalized parking offenses it created a civil administrative
procedure outside the court system for the public to contest parking citations Now
only citations that are appealed from administrative hearings go to court Appealed
court hearings are very rare and all court fees related to the appeal are fully paid by the
involved parties For example in 2009 the City of Huntington Beach processed over
72 000 parking citations but had only 18 administrative hearings were appealed to
court By adding a new $3 00 surcharge and using the statistics from 2009 the City of
Huntington Beach will be forced to pay an additional $216 000 to the courts This is an
average of $12 000 per court appealed parking citation
The main goal of a parking enforcement program is voluntary compliance to parking
control ordinances However parking fines are an important source of local revenue
and being required to fund court operations via parking fines is simply a financial take-
away from local governments This is a loss of funding that could be used to underwrite
essential public safety and other much needed local services
Stem 13 - Page 18 -190-
There are other problems with this proposal as well Administratively it will take some
time for the Police Department to add a new surcharge to the parking fine process
Computers will have to be reprogrammed tickets reprinted and so forth The last $3 00
parking fine increase added pursuant to SB 1407 caused a four to six month conversion
lag time This problem would be more acute today due to staffing shortages
The Huntington Beach Police Department strongly opposes the proposed $3 00 court
surcharge on local parking citations to help pay the court s shortfall We request this
item be reconsidered in sub-committee and another revenue source with a nexus to
court activity be used to backfill the shortfall However if the budget committees and
the legislature determine a surcharge must be imposed we request those affected by
the surcharge be permitted a four month grace period from the beginning date of the
enactment of the budget bill to make the needed administrative changes, before the
revenue collections begin Further a three-year sunset clause should be placed on the
new parking fine surcharge as it should address only a temporary not a permanent
situation for the courts
As always I thank you for your consideration of our request and would be pleased to
discuss this matter further with you
Sincerely,
Kenneth W Small
Chief of Police
-191- Item 13 - Page 19
Item 13 - Page 20 -192-
Page 1 of 2
Johnson, Howard
From Pat Grady Ipgrady@ylwd corn)
Sent Friday June 25 2010 4 02 PM
To jbyerrum@cdwc com ronkr@ci brea ca us rudyc@ci brea ca us
bjones@buenapark corn cfowler@b uena park corn jbiery@buenapark corn
'jlyle@buenapark corn mark lewis@fountainvalley org mike green @fo untainval ley org
daviden@ci garden-grove ca us zackb@ci garden-grove ca us carton@lahabracity corn
'daveh@lahabracity corn thomc@lahabracity corn jamest@cityoflapalma org
jeffm@cityoflapalma org cjustice@newportbeachca gov gmurdoch@city newport-
beach ca us jackerman@city newport beach ca us bbaehner@cityoforange org
jdefrancesco@cityoforange org jscudellan@cityoforange org mwolfe@cityoforange org
howarda@san-Clemente org lussierk@san Clemente org rebensdorfd@san-Clemente org
ccasper@sanjuancapistrano org ebauman@sanjuancapistrano org'
jtait@sanjuancapistrano org mperea@sanjuancapistrano org
smontano@sanjuancapistrano org jwatson@ci seal beach ca us mho@ci-seal-
beach ca us scrumby@cr seal-beach ca us tteichman@tcwd ca gov'
avalenzuela@tustinca org dstack@tustinca org glenb@ci westminster ca us
scottm@ci westminster ca us' jmendzer@eocwd corn lohlund@eocwd corn
badl@etwd corn mgrandy@etwd corn pwelsch@etwd corn do@ebca net is@ebca net
rhanford@gswater corn' robe rL ha nford @gswater corn tobymoore@gswater com
bonkowsl@irwd com cook@irwd com' Jones@irwd cam mourant@irwd com'
'weghorst@irwd com cregan@Ibcwd org rhinchey@Ibcwd org rmathis@Ibcwd org
amiller@Ibcwd org bobm@mesawater org deniseg@mesawater org
jerryv@mesawater org' pauls@mesawater org bgumerman@mnwd com
drain@mnwd com kroy@mnwd cam Igray@mnwd com klyon@mwdoc com
pmeszaros@mwdoc com marilyn thoms@rdmd ocgov com' 'etorres@ocwd com
jkennedy@ocwd com mmarkus@ocwd com bettym@smwd cam johns@smwd com
swdgm@aol corn bburnett@scwd org jbrennan@scwd org Ihomscheid@scwd org
mdunbar@scwd org 'rbarnes@scwd org dchadd@tcwd ca gov Johnson Howard
4swdgm@gmail com dianasport@earthlink net jvfoley@cox net
Cc Ken Vecchiarelli Art Kidman (akidman@mkblawyers com) Laurie Ellen Park
Subject Follow up Request for Amicus Curiae Letter-Inverse Condemnation Action against Yorba
Linda Water District
Importance High
Attachments Correspondence from Kidman pdf
Hello All
For those of you at the MWDOC managers meeting yesterday, I am once again soliciting your assistance for an
Amicus Curiae letter ideally on the behalf of the OC water agencies and municipalities After communicating
with John Kennedy of OCWD he is not able to assist after all as he needs Board approval before authorizing his
legal counsel to proceed with this task
Unfor4atten
the timin s critical and I apologize for the short ;fevv ver, t deadline for filing the
letter2010 and case number will not be assigned u til June 30 2010, t day the writ is filed If
anothy or icipality is able to assist with this request ertainly be appreciated For those
not innte yesterday, below is the summary and background related to our request for an Amicus Curiae
letter Thank you all again for your consideration
Pat Grady
Assistant General Manager
Yorba Linda Water District
6/28/2010 -193- Item 13 - Page 21
Page 2 of 2
1717 E Miraloma Ave
Placentia CA 92870
Tel (714)701-3000
Email pgrady�'1a ylwd cam
Summary
cliet.
Back in November 2008,the Yorba Linda area experienced a fire storm known as
destroyed 118 homes and damaged 60 others It is alleged that during the blaze,water supply to an area known
as Hidden Hills had become limited as the fire storm had temporarily disabled pumps within a pump station that
normally provides water to that particular area
As a result in December 2008 the District started receiving claims alleging inverse condemnation,dangerous
condition of public property, nuisance and misrepresentation Shortly after these claims were denied and
rejected by the District,formal legal action in the Orange County Superior Court followed the Court ruled in
favor of the District relative to the liability related issues pursuant to the Government Code firefighting
immunities However the Court ruled against the District and the demurrers relative to the inverse
condemnation issue allowing those claims to proceed to trial'}
Should an inverse condemnatio cause of action be sustained as a result of an alleged water system deficiency
then any water agency providr g retail water for fire suppression may be potentially liable without proof of
fault on the part of the agency for loss of structures other property,and lives in any fire
We are currently in the process of petitioning for a writ of mandate to the Court to correct the order from the
Orange County Superior Court related to the inverse condemnation cause of action The filing is to occur on June
30 2010 Our legal counsel is recommending we obtain an Amicus Curiae letter representing the Orange County
agencies and municipalities The letter would need to be drafted by an attorney and filed no later than July 1
2010 with the Fourth District Court of Appeal supporting the Yorba Linda Water District s writ of mandate
Attached is additional detail information in a form submitted to ACWA Legal Affairs Committee requesting their
assistance as well As of Wednesday ACWA will also be filing an Amicus Curiae letter on behalf of its member
agencies Below is the contact information of YLWD s legal counsel
Arthur Kidman
McCormick, Kidman &Behrens LLP
650 Town Center Drive Suite 100
Costa Mesa, CA 92626 7187
Tel (714)755 3100
Item 13 - Page 22 -194-
"IAMO Kar MOCORMICH HIDMAN&BEIMEN'S LLP
AVM C-XVMAR• LAWYERS
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UMAMM M TAWA-4 SL34TE i00
DAVID D.ENS.
D10 MIPAMr CDMMB&kCAi,MEa"9262&/187
MAN)MINETT TKNIMMc7M2550100
OWILM'r*Att CW0755.3 25
TRea,rT TNAH�,rAcra FAX 014)7553110
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uuaa�MO PAW www MkW C*M
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4AMFUMMEORNMON
+CMIFIEp SP83AUST-9fV.tSM
ESTATE KAti M9AWST WW
THE MTE MROF CMIFt M
DWXD OF t"Sp6Q0.tAATM
"C"MEi
June 8,2010
W Wbitine Hertderso n
Legal Counsel l eglslst ve Advocate
Association of California Wager Agencies
910 R Street,Suite 100
Sacramento CA 95814
Re Request for ACWA Assistance writln Anucus Curiae Letter,In the matter of
Imi v Yorba Linda Water District an inverse eonde i ation cause of action
for property loss against the Yorba Linda Water District alleging failure ofthe
District's water system to provide adequate fine suppression flows during a
wddland fire
Dear Whitnie
The Yorba Linda'hater District,in conjunction vnth the ACWA 7PLk,requests that
ACWA provide assistance by subratting au Amicus Curiae letter to the Fourth District Court of
Appeal The ACWA letter would support the District's petition for writ of mandate to correct an
order of the Orange County Superior Count oven-ulmg the District's demurm to an inverse
condemnation cause of action for allcged deficiencies of the District's chanbutwa system dunng
a firestorm along with the wild land/urban mtedace
As detailed in the attached ACWA Request for Assistance,Pus is a matter of par MgMU,1
3Mportance Should an inverse coademnation cause of action be sustained,as a result of atle��
water system defjcT=cies,tb any water agency Mviding retail water fclrfire ession
purposes maybe potentl y i e,v nt proof of thult an the part of fe agency,for the loss
a structures o ex ropezty,-=-a ves in ati re
-195- Item 13 Page 23
Ms Whitnue Henderson
June 8,2a10
Page 2
Should ACWA approve dus request,Robert B Maddow of Bold,Pohsner,Maddow,
Nelson&Judson,P C,bas agreed to prepare am Anneus Cunae letter ran behalf of ACWA The
Distnot and,ACWA-JPfA have agreed to pay for the cost quoted to prepare the ACWA Anuem
Cvnae letter
Tunmg in fts maner is of the utmost=9=M
hav ed gff LoL it must be submitted ft da f-WIpmMb wrst r n
wbich has been targeted for June 30,2010
Fide feel free to contact me with any questuons Thank you rn advance for your prompt
consideration of tins request
Very Truly Yours, --
McCORNIIM IGDMAN&BEHRENS,LLP
ARIMUR G RIDMAN
AGKfddb
Item 13 - Page 24 -1 g6-
A socIATION OF CALIFORNIA WATER AGENCIES
LEGAL AFFAIRS COMMITTEE
I EST FOR ASSISTANCE
Date June 8, 2010
I Requesting Agency/Party
Name Yorba Linda Water Distnct, in conjunction with ACWA-JPIA, 1717 B
Miraloma Ave Placentia,CA 92870, Ken Vecchiarelli,General Manager
Contact Person Arthur G Kidman McCormick Kidman, &Behrens LLP General
Counsel to Yorba Linda Water District
Address 650 Town Center Drive, Suite 100,Costa Mesa CA 92626
Telephone (714)755-3100
Fax (71 4)755-3114
Email akidman@mkblawyers com
11 Case Information
Case Name Itani v Yorba Linda Water District
Trial Court and Case No Orange County Superior Court-Complex Division (CX103)
30-2009-00124906
Appellate Court and Case No N/A
Litigation Counsel Linda Bouerrrieister of the Law Offices of Bauer& Bauermeister-trial
counsel Michael M Berger of Manatt Phelps & Phillips, L L P - appellate counsel
Estimated deadline for assistance June 30, 2010
Brief statement of major issue or problem requiring assistance
Plaintiffs who suffered property losses in a wildland fire have asserted claims in inverse
condemnation against the Yorba Linda Water District alleging failure of the Districts
water system to provide adequate fire suppression An assertion of inverse
condemnation in this context is a case of first impression The District and the ACWA-
JPIA request assistance with an Amicus Curiae Letter to be fled concurrently with a
petition for writ of mandamus to be taken to the Fourth District Court of Appeal This
matter is of paramount importance Litigation against the district was prompted by an
extra-ordinary fire event, termed a 'firestorm' and 'mega-fire by the Orange County Fire
Authority If plaintiffs succeed in asserting a cause of action for inverse condemnation
any and all retail water agencies and the ACWAAPIA may face liability for the loss of
Apni 2010
-197- Item 13 - Page 25
structures, other property, and lives in any fire The Orange County Superior Court has
overruled the demurrers to the inverse condemnation claims The District, with the
urging and support of the ACWA-JPIA, will file a writ of mandate attempting to limit the
cases from going to trial on the ments
III Type of Assistance Requested
❑ Amicus Curiae Brief
❑ Informal Assistance in Pending Action
® Other Assistance (i e, Amicus Curiae letter in support of pebtion for
review by Calrforrna Supreme Court) indicate nature of assistance
Amicus Curiae Letter-Yorba Linda Water District and ACWA-JPIA will
seek a writ of mandate to reverse the trail court decision to overrule
the demurrer on the inverse condemnation claims against the
District ACWNs assistance with an Amicus Curiae letter is needed
immediately and to be timed to closely follow the fling of the writ
® Funding for assistance (maximum ACWA contribution is$5 000)
• Mow much is requesting agency willing to contribute toward
costs
• Robert B Maddow of Bold, Polisner, Maddow Nelson, &
Judson P C has agreed to prepare the Amicus Curiae
letter for$3 000 00
• The Yorba Linda Water District and the ACWA-JPIA have
agreed to pay this amount
IV CRITERIA FOR ACWA INVOLVEMENT
Impacts on ACWA Member Agencies Affected by or Interested in Matter
A ACWA Membership in General Should an action for inverse
condemnation he against the Yorba Linda Water District as a result of
alleged failure of the water system to provide adequate fire suppression
flows agencies which provide water for fire suppression purposes and the
ACWA-JPIA will be potentially liable for structures other property and
even lives lost as a result of a fire Although this case arises out of a
wildfire there is nothing about the allegations that would limit liability to
wildfire Should the plaintiffs on this action prevail in the future should
facts be alleged that a water system did not perform adequately in the
face of a fire of any kind or ongn, the water supply agency may face
liability in inverse condemnation, an action that does not require proof of
fault
B Particular Types of Agencies within ACWA Any water agency or
water company providing retail water services for fire suppression By
extension the ACWA-JPIA would be affected
April 2010
Item 13 - Page 26 -198-
C Particular Member Agencies within ACWA Any water agency or water
company providing retail water services for fire suppression By extension
the ACWA-JPIA would be affected
V Fact Summary
Can November 15 2008, the Freeway Complex Fire was ignited by a car on the side of
the westbound 91 Freeway and Green River in the City of Corona Referring to the fire
as a firestorm' and a mega-fire' the Orange County Fire Department in its After Action
Report on the Freeway Complex Fire states that the fire burned 30,305 acres The fire
was exceptionally fast bum mg, in the first twenty four hours it burned at a rate of 1,000
acres per hour While it Mimed for less than 36 hours it burned across a 10 mile front of
wild Ian dlurban interface Additionally it Jumped the Santa Ana River twice and also
lumped a 16 lane freeway going on to burn 100 apartments on the other side of the
freeway In total the:fire threatened 9,500 homes, destroyed 118, damaged another 60
within Yorba Linda alone and forced 40,000 people to evacuate their homes The
Orange County Fire Authority's report reagarding the fire states that"[dInven by hot
Santa Ana winds in excess of 60 mph combined with 8 percent humidity and long-
range spotting of one mite or greater th[e)fire-[ ]cause[d]the most catastrophic loss
of homes in Orange County since the Laguna Fire in 1993"and the largest fire in
Orange County since the Green River Fire of 1948 The fire caused damage to the
cities of Yorba Linda, Anaheim, Corona, and the Chino Hills State Park and impacted
the counties of Orange Los Angeles, Riverside and San Bernardino The Fire
Authority report also states that this was a historic fire corridor The topography of
Hidden Hills the east-west alignment of the Santa Ana Canyon and the winds created
the perfect firestorm
During the Freeway Complex Fire allegations emerged that the water supply to homes
in the Hidden Hills area had become limited as the fire had allegedly destroyed the
capacity of the pumps The water system in the immediate area was reliant on pumps,
as opposed to being fed by a gravity from a reservoir at the ridge top In addition there
is some indication that the fire itself damaged the pumping station As a result of these
allegations the District was sued by many parties many of whom have homes located
outside of the area of the alleged failure In December of 2008 the first of these claims
were lodged against the District The claims alleged inverse condemnation dangerous
condition of public property nuisance, and misrepresentation These claims were
denied and formal legal action followed in the form of complaints filed with the Grange
County Superior Court Judge Bauer in the Complex Division of OCSC heard the
District's demurrers on the complaints and ruled in favor of the Yorba Linda Water
District with regard to dangerous condition of public property nuisance and
misrepresentation The court found that the Government Code immunities relative to
firefighting immunized the District for liability on these:claims However with regard to
inverse condemnation the court overruled the demurrers, ruling that the Government
Code immunities relative to firefighting did not apply, and allowed those claims to
proceed to tort trial Please see Minute Order attached
April 2010
-199- Item 13 = Page 27
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF ORANGE
CIVIL COMPLEX CENTER
MINUTE ORDER
Date 0511712010 Time 09 37 00 AEI Dept CX103
Judicial Officer Presiding Ronald L.Bauer
Clerk Mary White
RepoderlERM None
Bailrff/Court Attendant:Date
Case No 30-2009-00320239-CU-Ei-CXC Case Ind date 1111312009
Case Title Lindholm vs Yorba Linda Water District
Case Category Civil-Unlimited Case Type Eminent domaintinverse condemnation
EVENT iD/130CUMENT 1D 709851€8 l
EVENT TYPE Chambers Work
APPEARANCES -- — - --
There are no appearances by any party
The Court having taken the above-entilled matters under submission on 0212212010, not makes the
following ruling
Several separate related complaints have pleaded various causes of action allegedly arising from the
November 16, 2005 fire generally known as the Freeway Complex Pyre("the fire") Because so marry of }
these causes of action appear In essentially the saute farm In multiple complaints each of these causes
of action will be discussed below That analysis can then be applied to those suits where each such
cause of action is alleged
INVERSE CONDEMNATION CLAIM AGAINST DISTRICT
A cause of action for inverse condemnation is common to many of th se complaints Because that claim
is based upon the coristitutional prohibition upon the taking of private property without the giving of just
compensation a defense regularly interposed oy the Yorba Linda Water District("District")is unavailing
The Govornment Code sections that immunize the District for mishaps resulting from the malfunction of
its fire suppression eqihiipment mwat yield to the state constitution See Aacillc Bell v City of San Diego
(2000) 81 Cal App 4 590 602-03, where the, court stated that"the constitutional provisions requiring �
compensation for property taken or damaged by a public use overrides [sic] the Tort Claims Act and its
statutory immunities" The argument advanced by defendant in the Pactlic Bell case is essentially the
some as that presented by the District here
Once we conclude that the special Government Code immunities for fire suppression activities cannof
be invoked in the face of a claim for inverse condemnation we are left with the question of whether or
not that cause of action has been adequately pleaded in these cases The parties are in basic
agreement about the required elements c such a claim They disagree vigorous) about whether the
DfstaoVs actions (or fnaction) caused the damages aWged by the several plaintiffs Counsel for the
District expresses this argument thuslgr"It s the causation element that is the most problematic for State
Date 05117/2010 MINUTE ORDER Page 1
Dept CX103 Calendar No
Rein 13 a Page 28 -200-
Case Title Und€totm vs Yorba Linda Water ®isti ict Cass No 30a2009-€0320239-CLI-Ei-CXC
Farm Fire & Casualty Company and the other plaintiffs who are attempting to state claims against the i
Water district for inverse condemnation" Demurrer page 7 lines 17-19 Counsel may have correctly
described the Ivey issue, but the result she urges does not necessarily follow The pnncipat case
advanced in suppon of the argument chat the € istnet old not cause damage to any plainflif is Bunch v
Coachella Valley Water Dist (1997) 15 Cal 4th 432 A critical aspect of that decision is that it followed a
trial (in fact, two trials) at which the court determined that the defendants water diversion activities had
been reasonable under all the circumstances of that case In apply,ng t e Supreme Courts earlier
decision in Belair v Rwerslde County Mad Control Dist (IW8) 47 Cat 311, 550, 565 the court stated
that "when a public flood control improvement fails to function as intended and properties historically
sAect to flooding are damaged as a proximate result thereof plaintiffs' recovery in inverse
condemnation requires proof that the failure was attributable to some unreasonable conduct on the part
of the defendant public entities" (There is no rbason why a flood case should not be applied to a fire
case for Inverse condemnation through the simple substitution: of appropriate nouns in the foregoing
quotation ) Defendant suggests that the plaintiffs cannot meet this challenge largely because the fire
was massive m scope and had its origin miles away from Yorba Linda However,today s issue is not one ;
of proof but of pleading and these plaintiffs have passed that test. Perhaps these plaintiffs,41 rail for
the same reason that the Belair plaintiffs failed but that was a matter of proof at Trial The plaintiffs I
complaints vary in their wording, but they are all adequate for present purposes
OTHER CLAIMS AGAINST DISTRICT �
Several of these winplaints have included causes of action against the tistrict for nuisance
misrepresentation, and dangerous condition of public property These claims do not have the '
constitutional basis as does one for inverse condemnation so they do face the immunities of the j
Government Code To some extent, these added causes of action repeat the principal elements of the
claim for inverse condemnation as such they may be superfluous More importantly the essence of
these claims seems to be that the District mishandled its fire suppression equipment and activities As
such the claims would be barred by the Districfs statutory immuroties The court will therefore sustain
the demurrers to these causes of action and gitre those plaintiffs thirty days to amend their pleadings if
they so desire to state their nest case for a cause of action (other than inverse condemnation) that
would not be barred by the Government Code
INVERSE CONDEMNATION AGAINST CITY
Some plaintiffs may have intended to sue the City of Yorba Linda ("the City")for inverse condemnation
This is by no means clear Although this cause of action is describer) in sorne of these complaints, as
being alleged "against all defendants"the pleadings hardly match that caption In some instances, the
cause of action for inverse condemnation says noshing at all about the City; in others there is a bare
allegation that the City acted irnpropetiy to no instance could the court find a well-pleaded claim of
inverse condemnation against the City The court midst therefore sustain each demurrer to any such
alaimn against the City Those plamtiffs who cap*mad such a claim as"against all defendants" may have
thirty days to amend that cruse of action If they so desire
OTHER CAUSES OF ACTION!AGAINST CITY
The most viable claim against the City may be based upon the allegations that maintenance of
greenbelts in the fire area was neglected the greenery was allowed to dry to a tinder status and that fire
hazard was never remgved by the City Calling this claim[ "mast viable"is simply a comparison wath other
causes of action alleged against the CI In reality as the plaintiffs surer recognize they face the task
of establishing that a dry greenbelts�erhaps a misnomer)were a substantial factor in causing their
injuries under the circumstances of a re that started irides away and had already reached massive
proportions by the time it reached Yorba Linda Provability of this Oalm is not todao issue, however
and the court has concluded that this cause of action has been adequately pleaded The same would be
true of other claims(except for Inver condemnation)against the City
Date t3511712010 MINUTE ORDER - — - Page 2
Dept CX103 Calendar No
-201- Item 13 - Page 29
Ca-se Title Lindhal mvs Yorba Linda District Case No 30-2009-O0320239 CU E1-CXC
On those complaints where the court has granted leave to amend a claim against any defendant, no
further responsive pleading will be required until all such amendments In that case have been filed and
served If plaintiff elects not to amend counsel should so notify defense counsel, who will then answer
the remaining causes of action
The court has tried to address every cause of action pleaded in these many complaints However if any
question remains about the court's ruling on any particular cause of action, and counsel are Finable to
resolve It after meeting face-to-face or conducting a teleconference vnth the responsible lead counsel,
the matter cars then be brought to the court's aatterdion via an ex parte hearing
Court orders Clerk to give notice
CLERKS CERTIFICATE OF MAILING I certify I am not a party to this cause over age 18-and a copy of
this document was mailed first class postage prepaid in a sealed envelope addressed as shown, on
17--MAY-2010 at Santa Ana Califomis Alan S Carlson/Executive Of9cer& clerk of Superior Court, by
M White Deputy
ERIC V TRAUT
PARK TOWER STE 900
2009 WEST SANTA ANA BLVD
SANT ANA, CA 92701
ROBERT J WOLFEw
ENGSTROM LIPSCOMB& LACK
10100 SANTA MONICA BLVD 12TH FLOOR
LOS ANGELES CA 90067-4107
JOSEPH A SCHWAR
PETERSON LAW GROUP
STE 6270
707 WILSHIRE BLVD
LOS ANGELES, CA 90017
BEST BEST&KRIEGER
CHRISTOPHER M POSANO
300 SOUTH GRAND AVE
25TH FLOOR
LDS ANGELES,CA 90071
LINDA S BAUERMEISTER
LAW OFFICES OF BARBER&BAURMEESTER
1551 N TUSTIN AVE
STE 720
SANTA ANA CA 92708-8637
f
GE"RAL.DINE LY
REAL HERNANDEZ&L,Y
1200 N MAIN STREET STE 810 �
SANT ANA CA 92701
GARY HAMBLET
MORRIS,POLICH &PURDY, LLP
1055 WEST SEVENTH STREET 24TH FLOOR
LOS ANGELES, CA 90017
Bate 06/1712010 MINUTE ORDER Page 3
Dept CX103 Calendar No
Item 13 - Page 30 -2®2-
Case Tide Lindholm vs Yorba Linda Water District Case No 30 2009-00320239-Cll-EI-CXC
RICHARD A JONES
LAW OFFICES OF RICHARD A JOKES
1820 E 17TH STREET
SANTA ANA,CA 92705
1
i
r
Date 05/17/2010 MINUTE ORDER �� Page 4
Dept CX103 Calendar No
{
1
-203- Item 13 a Page 31
Item 13 - Page 32 -204-
No G
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT,DIVISION THREE
Yorba Linda Water District,Defendant and Petitioner
vs
Superior Court of the State of California for the County of Orange,
Respondent
[ADD LIST],Plaintiffs and Real Parties in Interest
PETITION FOR WRIT OF MANDATE
From an Order of the Superior Court of the State of California for the
County of Orange, Hon Richard L Bauer
OCSC No 30-2009-00311353, Treated as Related to
30-2009-00124906, 30-2009-00311353, 30-2009-00319080,
30-2009-00320239, 30-2009-00320254, 30-2009-00319080,
30-2009-00332968, 30-2009-00333938, 30-2009-00125994
NIANATT, PHELPS &PHILLIPS, LLP BARBER & BAUERMEISTER
MICHAEL M BERGER (No 043228) LINDA BAUERMEISTER (No 113321)
11355 West Olympic Boulevard 1551 N Tustin Avenue, Suite 720
Los Angeles, CA 90064-1614 Santa Ana, CA 92705
Telephone (310) 312-4000 Telephone (714) 973-1075
Fax (310) 312-4224 Fax (714) 973-1670
Attorneys for Petitioner Yorba Linda Water District
-205- Item 13 - Page 33
INTRODUCTION
In a manner without precedent, the Respondent Court has
ordered Petitioner Yorba Linda Water District to stand trial as an inverse
condemnation defendant, facing constitutional liability to dozens of
property owners for the results of the catastrophic Freeway Complex Fire
of November 2008 that started in another city and that the Water District
had no part in creating
This needs to be said plainly There is no appellate case in
California that holds a government agency liable for a physical inverse
condemnation where the agency had no part in the physical act that caused
the property damage None
Nor is there any appellate case in California that holds a
government agency liable for a physical inverse condemnation for fire
damage from a fire that the agency had no part in creating None
At most, the plaintiffs have alleged common law tort
theories, sounding primarily in negligence As Respondent Court properly
held, however, the Legislature made a policy decision to immunize
government agencies from the torts plaintiffs charge In an effort to plead
around that legislative policy decision, plaintiffs claim the same acts as
constitutional violations They are wrong As a matter of law
"Not every tort committed by [a] governmental entity that
results in property damage gives rise to an action in inverse
Item 13 - Page 34 -206-
condemnation " (Air Quality Products Inc v State [1979]
96CalApp3d340, 351, n 7 )
A public entity cannot be subject to "general tort liability
under the theory of eminent domain " {Customer Co v City
of Sacramento [1995] 10 Cal4th 368, 382 [quoting with
approval] )
As we will show, all physical inverse condemnations fit a
pattern for inverse condemnation liability to attach, the agency must have
participated in creating the hazard There is nothing in the complaints
below to satisfy that requirement When the Respondent Court overruled
the Water District's demurrers to the inverse condemnation claim in each
of the attached complaints, it acted in excess of its jurisdiction
This Petition presents a dispositive issue of law for de novo
review If this Court agrees with the Water District, then there will be no
trial The case will be over In such circumstances, the propriety of an
extraordinary appellate wnt is established (E g , Rotolo Chevrolet v
Super for Court [2003] 105 Cal App 4th 242, 245, n 1 ["a speedy
resolution of the issue may obviate the need for trial"], City of Huntington
Beach v Superior Court [1978] 78 Cal App 3d 333, 339 [writ proper to
"prevent a needless, expensive trial and an ultimate reversal"] )
PETITION
Petitioner and Defendant Yorba Linda Water District, by tlus
venfied Petition respectfully shows
1 Petitioner Yorba Linda Water District is the defendant in
-207- Item 13 - Page 35
ten matters pending in the Respondent Court The complaints are filed
herewith as Exhibits 1-10 These related matters are being considered as a
group by the Respondent Court for pre-trial proceedings
2 Real Parties in Interest are the plaintiffs in those ten
matters They are property owners (or their insurers) whose homes in
Yorba Linda were burned in November 2008 in the calamitous multi-city
firestorm known as the Freeway Complex Fire Each of the complaints
contains a cause of action against the Water District seeking compensation
in inverse condemnation allegedly because the water supplied by the Water
District was not adequate to allow fire crews to put out the blaze
3 On Feb 22, 2010 and May 17, 2010, the Respondent
Court held hearings in these related cases on demurrers filed by the Water
District and its co-defendant the City of Yorba Linda Exhibits --- are the
Water District's demurrers, exhibits --- are the plaintiffs' oppositions,
exhibits ---- are the Water District's replies, exhibits ---- are the Reporter's
Transcripts of the hearings
4 On May 17, 2010, the Respondent Court issued its Order
overruling the Water District's demurrers as to inverse condemnation and
sustaining the Water District's demurrers as to tort causes of action The
Order is Exhibit --
5 The Water District has no plain, speedy and adequate
remedy other than this writ petition Without this Court's intervention now
Item 13 - Page 36 -208-
the Respondent Court will move these cases through discovery towards
eventual trials As the inverse condemnation claims of all Real Parties in
Interest are legally invalid, the Water District will be damaged by being
forced to undergo that process for no legal purpose It will also waste the
time of an already overburdened judicial system
WHEREFORE PETITIONER PRAYS THAT THIS
COURT
1 issue a peremptory writ in the first instance, after
appropriate notice under Palma v US Industrial Fasteners Inc (1984) 36
Cal 3d 171, ordering the Respondent Court to vacate its order to the extent
that it overrules the demurrers to the inverse condemnation claims and
enter a new order sustaining the demurrers as to those claims, or
2 issue an alternative writ, ordering the Respondent
Court either to vacate its order to the extent that it overrules the demurrers
to the inverse condemnation claims and enter a new order sustaining the
demurrers as to those claims, or to show cause why this Court should not
order it to do so, and thereafter issuing a peremptory writ so ordering, and
3 award Petitioner its costs incurred, and
4 grant such other relief as justified in the prenuses
Respectfully submitted,
Manatt, Phelps & Phillips
Michael M Berger
-209- Item 13 - Page 37
Barber& Bauermeister
Linda Bauermeister
by Michael M Berger
Attorneys for Petitioner'Yorba Linda Water District
Item 13 - Page 38 -210-
VERIFICATION
-211- Item 13 - Page 39
I
FACTUAL AND PROCEDURAL SUMMARY
This case arises out of the tragic sequence of events on
November 15, 2008 that has become known as the Freeway Complex Fire
The conflagration began as two fires (one near the 91 Freeway in Corona
and the other near the 57 Freeway) which merged into a raging firestorm
that consumed 14 acres (roughly 14 football fields) every minute The
largest fire in Orange County in half a century, the Freeway Complex Fire
affected six cities in four counties, covering more than 30,000 acres and
damaging or destroying 3 81 structures
The plaintiffs seek to hold the Water District responsible for
their losses, essentially making the Water District the insurer of last resort,
even though it — like all other government agencies — has no duty to
provide fire protection (See Govt Code §§ 850, 850 2, 850 4 ) Their
complaints essentially charge the Water District with vanous acts and
omissions of a negligence variety The Respondent Court held that the
immunities consciously created by the Legislature in the Tort Claims Act
precluded claims sounding in negligence, nuisance and dangerous
condition of public property (----) However, the Respondent Court held
that those same facts would suffice to maintain an inverse condemnation
cause of action against the Water District {----) The error in the latter
ruling prompts this petition
Item 13 - Page 40 -212-
II
THERE CAN BE NO INVERSE CONDEMNATION LIABILITY
WITHOUT ACTIVE PARTICIPATION BY THE GOVERNMENT
IN CREATING THE SITUATION THAT CAUSED A TAKING OF
PRIVATE PROPERLY FOR PUBLIC USE
The law is settled — and it is contrary to the ruling of the
Respondent Court
"To state a cause of action for inverse condemnation,
the plaintiff must allege the defendant substantially
participated in the planning, approval, construction or
operation of a public project or improvement which
proximately caused injury to plaintiff's property"
(Wildensten v East Bay Reg Park Dist [1991] 231
Cal App 3d 976, 979-980 [emphasis added] )
In this case, there is no allegation that the Water District's
public project proximately caused the injuries suffered by Plaintiffs Nor
could there be
A
For A Government Agency To Be Liable For Physical Inverse
Condemnation, The Agency Must Have Substantially Contributed To
Creating The Public Project Alleged To Have Caused The Taking
Inverse condemnation cases involving physical damage to
property all have this common feature the agency was an active
participant in creating the project that actually caused the damage It
matters not what kind of damage or what kind of project was involved All
of them involved government participation in creating a project which
itself caused the damage (E g , Holtz v Superior Court [1970] 3 Cal 3d
-213- Item 13 - Page 41
296, 302-304 [land subsidence caused by excavation for BART line],
Albers v County of Los Angeles [1965] 62 Cal 2d 250, 254-255 [landslide
caused by road construction], Yee v City of Sausalito [1983] 141
Cal App 3d 917, --- [subsidence caused by ruptured storm drain], Smith v
County of Los Angeles [1989] 214 Cal App 3d 266, ---- [landslide
reactivated when slide debris removed without stabilizing lull], Los Osos
Valley Assoc v City of San Luis Obispo [1994] 30 Cal App 4th 1670, ---
[subsidence caused by groundwater pumping program], City of Los
Angeles v Ricards [----] 10 Cal 3d 385, --- [construction of building pad in
waterway redirected water, destroying bridge],
There is no California appellate case holding a water district
liable in inverse condemnation due to weak, low, or no water pressure or
inadequate water supply to fight a fire, i e , the core allegations below (---
-------) In all cases of fire damage where inverse condemnation claims
were allowed, there was definite action by the defendant agency that was a
direct cause of the fire and hence the damage (Barham v Southern Cal
Edison Co [1999] 74 Cal App 4th 744, --- [power lines came in contact,
causing a power surge that started a fire],Marshall v Department of Water
& Power [1990] 219 Cal App 3d 1124, ---- [downed power lines started
brush fire], Aetna Life & Cas Cc v City of Los Angeles [1985] 170
Cal App 3d 865, --- [sparks from electrical power lines started fire],
Vedder v County of Imperial [1974] 36 Cal App 3d 654, --- [gasoline and
Item 13 - Page 42 -214-
chemicals stored at county facility ignited] )
The focus in the physical inverse condemnation cases has
largely been on the defendant agency's participation in the construction of
the project and the project's cause of the damage
"[T]he destruction or damaging of property is sufficiently
connected with `public use' as required by the Constitution,
if the mjury is a result of dangers inherent in the construction
of the public improvement as distinguished from dangers
arising from the negligent operation of the improvement "
(Customer Co v City of Sacramento [----] 10 Cal 4th ---, ----
quoting with approval, emphasis, the Court's)
Although there have been a few cases involving improper
maintenance, liability was imposed only if delayed maintenance had been
adopted as a policy by the agency (McMahan s of Santa Monica v City of
Santa Monica [1983] 146 Cal App 3d 683, 696-698, Pacific Bell v City of
San Diego [2000] 81 Cal App 4th 596, 607 [in both cases, cities adopted a
non-maintenance plan to fix pipes when they broke, knowing that they
would break and cause damage]) or were the equivalent of doing new
construction (Bauer v County of Ventura [1955] 45 Cal 2d 276, 285
[maintenance altered the ditch by raising one of its banks], Arreola v
County of Monterey [2002] 99 Cal App 4th 722 [allowing trees and sand
bars to grow in flood control channel, reducing capacity])
Thus, the cases that are out of the mold of the defendant
actually constructing the improvement involve either additional
construction later on that caused the damage, or a policy decision to do no
-215- Item 13 - Page 43
maintenance on pipes that the agencies knew would decay and burst
without additional work
None of these cases fits the allegations in the complaints in
this case Moreover, there is no dispute that the Water District did nothing
to start the fire, thus distinguishing this case from all-of the prior fire
damage cases, each of which was based on government action triggering
the blaze
B
The Law Developed In Flood Control Cases hoes Not Translate To
Other Claims Of Physical Inverse Condemnation
The Respondent Court sought to marginalize the obvious fact
that the Water District did not cause the fire by analogizing to flood control
cases In the Respondent Court's words, some "flood control cases have
resulted in viable claims for inverse condemnation, although none of those
districts caused it to rain " (-------- [RT 8, emphasis added]) Thus, the
Respondent Court concluded (adopting the argument of one of Plaintiffs'
counsel [2d RT 15]) that "[t]here is no reason why a flood case should not
be applied to a fire case for inverse condemnation through the simple
substitution of appropriate nouns ' (----------------)
Wrong, there is a reason for compartmentalizing the flood
control cases that is what the Supreme Court has consistently done
Those cases have troubled the judiciary for years, with the Supreme Court
Item 13 - Page 44 -216-
finally dealing with many (although concededly not all) of the issues in
Belair v Riverside County Flood Control Dist (1988) 47 Cal3d 550,
Locklin v City of Lafayette (1994) 7 Cal 4th 327, and Bunch v Coachella
Valley Water Dist (1997) 15 Cal 4th 432 The Supreme Court's analysis
in those cases of what it repeatedly called "the arcane area of water law"
(Locklin, 7 Cal 4th at 344, see also id at 362), shows why the flood control
cases provide no support for the decision below (See also Belair, 47
Cal 3d at 564 ["the-complex and unique province of water law"] ) In a
nutshell, the reason that "flood" and "fire" cannot simply be transposed is
that the flood cases have a different historic origin and have always been
treated differently
The difference is of ancient lineage and was summarized in
Keys v Romley (1966) 64 Cal 2d 396, California's classic explanation of
the "common enemy" doctrine, by which riparian owners are allowed to
take steps to combat the common enemy of floodwaters, and reorganized it
into a rule of reasonableness— a concept that the Court would adapt in the
flood control cases
In Bunch, the Supreme Court expressly explained why one
cannot simply switch nouns and apply flood cases to other physical inverse
condemnation cases The Court first acknowledged its landmark inverse
condemnation case of Albers, 62 Cal 2d at 263-264, that aligned physical
taking cases with the Constitution by eliminating common law concepts of
-217- Item 13 - Page 45
fault and making the test one of substantial causation (Bunch, 15 Cal 4th
at 440 ) As the Court explained, there were two exceptions to Albers'
general Lability rule, one of which is directly applicable here
"The second exception to the strict liability doctrine
occurred in the unique context of water law and derived
from upper riparian private landowners' limited common law
privilege to defend themselves against the `common enemy'
of floodwaters " (Bunch, 15 Cal 4th at 441, emphasis
added)
Thereafter, the Supreme Court continued to refine the law
"Belair reexamined the traditional distinctions in flood
control law and attempted to reconcile the constitutional
principles of Albers with the unique problems ,flood
control litigation created in an increasingly urbanized
society" (Bunch 15 Cal 4th at 442, emphasis added )
See also Locklin, 7 Cal 4th at 364, noting that Albers dealt
with the general situation but, as "it did not invoke any water law
principles," the lack of congruence between general inverse condemnation
law and water cases of any kind need not be dealt with
Thus, when the Court reached Bunch, the third of its water
law triumvirate, it continued by emphasizing the special rules applicable to
water cases
"The BelairlLocklin reasonableness test applies to
cases involving public food control works that cause
physical damage to private property" (Bunch, 15 Cal 4th at
454, emphasis added)
Bluntly drawing a line between water cases and the
remainder of inverse condemnation cases, the Supreme Court held
Item 13 - Page 46 -218-
"The rule of strict liability generally followed in inverse
condemnation (see Albers ) is not applicable an this
context" (Locklan, 7 Cal 4th at 367, emphasis added )
The Respondent Court was wrong to believe that it could
transfer rules developed in flood control cases to this unique fire case
simply because the flood control creator no more created the rain than the
Water District created the fire What they created was their own public
works But the rules applied are as different as are their facilities ' The
flood control projects directly caused damage The Water District's protect
here did not The complaints fail to allege facts showing causation At
most, they allege negligence and failure to add to its system, claims beyond
the bounds of inverse condemnation and precluded by the Tort Claims Act
By trying to adapt rules developed in flood control cases,
winch involve a "conditional privilege" to divert the flow of water "as
modified by a rule of reasonableness" (Locklan, 7 Cal4th at 367), the
Respondent Court transmogrified this inverse condemnation case into a
type of tort/neghgence case in winch the "reasonableness" of the Water
District's actions would be central to the liability determination That is
not what any of the Supreme Court's decisions has held, nor as it consistent
with general inverse condemnation cases or the Tort Claims Act, which is
' Even in the flood control context, the Supreme Court has said that
"an extraordinary storm would constitute an intervening cause which
supersedes the public improvement in the chain of causation " (Belaar, 47
Cal 3d at 560 ) If any adjective could be applied to the Freeway Complex
-219- Item 13 - Page 47
the proper avenue for attacking the reasonableness of the Water District's
conduct
As will be seen, each of those cases involved public works
created by the defendant agency which, in some direct way, caused the
release or redirection of collected water It was the action of the agency in
setting that sequence in motion that led to liability
C
For A Government Agency To Be Liable For Physical Inverse
Condemnation, The Defendant Agency's Project Must Be Causally
Linked To The Taking Of Private Property
Flood control works are inherently dangerous (as opposed to
the Water District's works, which are inherently benign) (Compare
Belau, 47 Cal 3d at 565 ["the damage potential of a defective public flood
control project is enormous"] ) Flood control works gather water in
discrete locations, either channeling it at high speed or impounding it in
great quantities but, in any event, concentrating both its force and its
volume One court put it colorfully but accurately several decades ago in a
flood damage case
"When the cougar roams the mountains it is every man for
himself, but certainly that does not mean that one may
capture the beast, bring him to the city, then unleash him in
the city park " (Beckley v State Reclamation Bd [1962] 205
Cal App 2d 734, 752 )
Flood control works, to continue the metaphor, "capture the
Fire that swept through four cities, "extraordinary" would seem to fit
Otero 13 - Page 48 -220-
beast" — and then some they bring the beast to a specified area and
impound it If the public works fail—i e , if they do not contain or control
the impounded water — they are capable of causing what Belair called
"enormous" damage precisely because they were designed to collect and
concentrate water When such public works fail, they unleash the specific
event (the "cougar," to continue Beckley's colorful metaphor) that caused
the damage
Had this case involved the rupture of a Water District
reservoir, loosing a flood on homes downhill, the flood control cases may
have been relevant But that is not what happened here Unlike the flood
control cases, the Water District did nothing to trigger this firestorm
In short, there is no allegation in the complaints explaining
how the Water District's "public project proximately caused injury" to
plaintiffs' property Nor could there be The Water District's water
facilities did not cause the damage complained of There are some
generalized legal conclusions about causation, but they cannot be
sufficient First, they charge negligence and failure to take action (e g , ----
----------------), tort claims that the Respondent Court rightly held were the
subject of specific immunity statutes (------------) Second, legal
conclusions do not establish facts on demurrer (Wildensten, 231
Cal App 3d at 980, Blank v Kirwan [1985] 39 Cal 3d 311, 318 )
The cases are clear that the challenged public project itself
-221- Item 13 - Page 49
must have been a cause of the taking and that the defendant public entity
must have taken action that fits the causation matrix This has been clear
since Albers, 62 Cal 2d at 304, with its emphasis on the necessity that the
public project must have proximately caused the property owner's damage,
tamed through in the more recent cases like Belair, 47 Cal 3d at 559
clarifying the language by substituting the phrase "substantial cause," but
without changing the necessity of such a finding
Here, the complaints merely allege that the Water District
built a water system and that the water system was not adequate to snuff
out the firestorm that surged through Yorba Linda (and three other cities
whose water flow has not been challenged but where homes burned
anyway) The remaining allegations all sound in tort, they allege
negligence, not inverse condemnation
III
THIS IS A CASE OF FIRST IMPRESSION THE POLICY
UNDERLYING INVERSE CONDEMNATION SHOWS NO
REASON TO EXTEND SUCH LIABILITY HERE
Our Supreme Court succinctly explained the underlying
policy basis for inverse condemnation liability in Holtz v Superior Court
(1970) 3 Cal 3d 296, 303
"The decisive consideration is whether the owner of the
damaged property if uncompensated would contribute more
than his proper share to the public undertaking "
The mere statement of that precept shows that inverse
Item 13 - Page 50 -222-
condemnation is not appropriate here The only "public undertaking" in
which the Water District was involved was the creation of water service
facilities The damage was caused by a firestorm What is the "public
undertaking?" In Holtz, the public undertaking was excavation of land for
a BART tunnel Neighboring land subsided Both the damaged land and
the "public undertaking" are clear Other inverse condemnation cases
discussed ante, p --- are similar
The concept was explained and illustrated in Akins v State
(1998) 61 Cal App 4th 1, 30-31 Although Akins was a flood control case,
this part of its discussion- was "not based on any arcane distinctions
peculiar to water law but rather on commonsense application of inverse
condemnation principles " (61 Cal App 4th at 30 ) There, the flood
control works diverted water from its normal path onto property that would
not otherwise have flooded, turning that property mto what the court called
"a retention basin in order to protect other property " (61 Cal App 4th
at 30 ) Both the public project and the enforced contribution of some select
property owners to the public good was clear Not so here
In all the reported cases, there is a clearly defined "public
undertaking" and a clear Ime of causation from government action in that
undertaking and the damage that triggered the litigation
Here, however, that link is missing It cannot be said here (as
it can in the other inverse condemnation cases) that the plaintiffs here are
-223- Items 13 - Page 51
"contnbut[mg]" anything to the project Their homes were destroyed by
fire, not by the Water District's facilities
Moreover, as noted earlier (and as conceded by at least one
plaintiff's attorney below [------------]) the Water District had no duty to
provide water for firefighting in the first place The decision to do so was a
legislative determination To the extent that the complaints are based on an
asserted failure to expand the water facilities by, for example, building
another reservoir (-------------------), that is beyond the control of the courts
"It would be an unwarranted usurpation of power for a judge
to impose liability for the failure to upgrade a project, rather
than for a defect in the project planned by the executive and
legislative branches " (Paterno, 74 Cal App 4th at 96,
emphasis, the Court's )
CONCLUSION
Like the firestorm that spawned it, this litigation is unique
There are no reported California cases that impose inverse condemnation
liability in a situation like this, i e, where the defendant agency did not
create the engine of destruction (here, the fire) nor did its deliberately
constructed works cause the damage
Although one can sympathize with homeowners whose
homes were destroyed by a massive fire, raging across city and county
boundaries at incredible speed, and while one can understand their insurers
seekmg someone to make them whole after they paid the losses for which
their insureds had paid premiums for years, the order below was simply out
Item 13 Page 52 -224-
of bounds It is not supported by existing law If the law is to change, it
ought to come from an appellate court, not a trial court forcing a trial that
is, at this time, legally unsupported
Yorba Linda Water District prays that a writ be granted
Respectfully submitted,
MANATT, PHELPS & PHILLIPS, LLP
MICHAEL M BERGER
By
MICHAEL M BERGER -
Attorneys for Petitioner
Yorba Linda Water Distract
-225- Item 13 - Page 53
CERTIFICATE OF APPELLATE COUNSEL
[CRC 8 2041
The foregoing Petition for Extraordinary Writ was produced
on a computer According to the word count of the computer program used
to prepare the brief, it contains words, including footnotes but
excluding tables and this certificate
MANATT, PHELPS & PHILLIPS, LLP
MICHAEL M BERGER
By
MICHAEL M BERGER
Item 13 - Page 54 -226-
-227- Item 13 - Page 55
[ACWA LETTERHEAD]
REQUEST FOR LEAVE TO FILE AMICUS LETTER
June 28, 2010
The Honorable Associate Justices of the Court of Appeal
Fourth Appellate District, Division Three
601 W Santa Ana Blvd
Santa Ana, CA 92701
Subject Letter in Support of Petition for Writ of Mandamus in Yorba Linda Water
District v Superior Court in and for the County of Orange, California Court of
Appeal Case No Gxxxxxx
(Lindholm/Itani v Yorba Linda Water District, Superior Court No 30-2009-
00320239-CU-EI-CXC)
Honorable Justices
The Association of California Water Agencies (ACWA) seeks leave of court to submit this letter
as amicus curiae in support of the Petition for Writ of Mandamus/Prohibition filed by Petitioner
Yorba Linda Water District in the matter of Yorba Linda Water District v Superior Court in and
for the County of Orange, and respectfully urges the Court to grant the Petition and direct the
Superior Court to vacate the decision rendered below overruling the demurrer to the cause of
action in inverse condemnation against Petitioner for damages suffered by homeowners in the
Freeway Complex Fire, a firestorm of epic proportions
ACWA is a voluntary, statewide nonprofit association comprised of nearly 450 public water
agencies that was founded in 1910 Together these agencies are responsible for more than 90%
of the water delivered in the state ACWA also represents 28 affiliate members consisting of
mutual water companies and other non public, nonprofit water related entities ACWA member
agencies range in size from small irrigation districts to the largest urban water wholesalers in the
country ACWA member agencies manage, treat and distribute water to rural communities,
farms industries, and cities ACWA represents its members before the state Legislature, the
United States Congress and numerous regulatory bodies as well as supporting these agencies as
amicus curiae in matters before California and Federal courts
ACWA's members obtain water supplies and construct infrastructure necessary to serve
residential, commercial, and industrial developments approved by cities and counties who have
authority to render land use decisions The vast majority of ACWA s members do not approve
land use applications for developments, and those that do typically have quasi-separate sub-
entities that comprise the water enterprise or utility Under Proposition 218, such water
enterprises may not lawfully contribute revenues to the general fund of the city or county of
which they are a part except to reimburse costs of services provided or to repay a loan to the
enterprise (See Howard Jarvis Taxpayers Assn v City of Fresno (2005) 127 Cal App 4th 914 )
The infrastructure constructed and operated by ACWA s members also provides water to
firefighting entities throughout the state Typically, fire departments and districts the agencies
Item 13 - Page 56 -228-
charged with firefighting responsibilities, determine the flows that are anticipated to be necessary
to fight fires, these requirements commonly dictate the capacity and redundancy of facilities used
to provide such flows Thus, in a typical situation, ACWA's members make substantial
investments in water system infrastructure in reliance on the flows determined to be necessary by
the department or district responsible for fighting fires within their respective service areas
Under these circumstances, as explained below, it would be unconscionable to hold water
purveyors responsible in inverse condemnation for damages caused by fires that they did not
start, and could not put out
By overruling the District's demurrer below, the trial court effectively expanded the scope of
inverse condemnation Research has revealed only three cases in which owners of real property
damaged by fire were held to have a cause of action in inverse condemnation against public
entities In each of those cases, the fire was started by the facilities owned and operated by the
public entities Thus, none of these cases support the decision below
In Aetna Life and Casualty Company v City of Los Angeles (Aetna) (1985) 170 Cal App 3d 865,
California courts first recognized a remedy of inverse condemnation following a fire In that
case, defendant city strung several electrical wires between poles closely together, so that when
the wires swung in a high wind, the lines came into contact, arcing and igniting a brush fire
which eventually burned into a residential area (Id at 873 ) As characterized by the court in
Aetna,
Defendants' only contention in this regard is that the extension of the remedy of
inverse condemnation to fire damage is unprecedented and undesirable They
point out that most California inverse condemnation cases involve damage not
normally covered by insurance, such as flooding, land subsidence, and aircraft
overflight Defendants argue that because fire insurance is readily available and
frequently purchased by prudent property owners, such owners should not be
permitted to recover in inverse condemnation and more specifically that insurance
carriers should not be permitted to subrogate to a property owner's claim for
inverse condemnation
(Aetna, supra, 170 Cal App 3d at 873 ) The court's response was to correctly note that the
California constitution "makes no exception for fire damage, (id at 873), to state "All that is
required is a deliberate act by a public entity which has as its object the direct or indirect
accomplishment of the purpose for which the improvement was constructed and which causes a
taking or damaging of private property, and to note the simple truth that defendants' acts
caused the fire (id at 874) In comparing the equities between the plaintiffs insurers and the
power utility, the court applied the following analysis
Defendants equities are inferior to those of plaintiff insurers because, whether
negligent or not, defendants actions caused the damage Furthermore, defendants
are at least equally capable of spreading the cost of the loss among the larger
population by raising rates for delivery of electric power or by passing the cost
along to their insurer (See Helfend v Southern Cal Rapid Transit Dist (1970) 2
Cal 3d 1, 14, 84 Cal Rptr 173, 465 P 2d 61 ) Proximately causing damage,
whether or not foreseeable, constitutes a kind of"fault, and thus a more logical
basis for liability, than simply undertaking to indemnify against future hazards
-229- Item 13 - Page 57
(Aetna,supra, 170 Cal App 3d at 875 )
The next case that has held a public agency liable in inverse condemnation for starting a fire was
Marshall v Department of Water and Power(1990) 219 Cal App 3d 1124 In Marshall, the trial
court found that the fire was caused by electrical sparks emanating from downed electrical
lines," which ignited nearby dry brush (Marshall, supra, 219 Cal App 3d at 1136 ) 1 The court
reasoned, citing Aetna, that inverse condemnation liability was appropriate for the damage
caused by the fire because the downed electrical lines were owned by the public entity, and, 'a
governmental entity may be held strictly liable, irrespective of fault, where a public improvement
constitutes a substantial cause of the plaintiffs damages even if only one of several concurrent
causes (Marshall,supra, 219 Cal App 3d at 1138-1139 ) 2
The third case to held a public agency liable in inverse condemnation for starting a fire was
Barham v Southern Cal Edison Co (1999) 74 Cal App 4th 744 In Barham, a section of
SCE s 12,000-volt (12kv) power line [broke], contact[ing] an umnsulated 33,000-volt(33kv)
line suspended above it, sending 33kv of power down the 12kv line When that extra voltage hit
a 15,000-volt rated lightning arrester(AR-182) on a pole three-quarters of a mile away, the
arrester failed, causing superheated components to fall to the ground, igniting a brush fire (Id,
at 748 ) Given that the public improvement had proximately caused the fire to start, it was easy
for the court to conclude, citing Albers v County of Los Angeles (1965) 62 Cal 2d 250, 263-264,
that that the property damage was proximately caused by the improvement and therefore
compensable (Barham, supra, at 751 ) 3
In Aetna, Marshall, and Barham, the fire was started by the public improvements owned and
operated by the defendants In the instant case, of course, there is no such claim nor could there
be The gravamen of the plaintiffs claims in this case is that the public improvement owned and
operated by the defendant, Yorba Linda Water District,failed to stop the spread of the fire that
had previously been caused by other instrumentalities Not surprisingly, there are no cases
imposing liability in inverse condemnation against a public entity whose water system failed to
stop the spread of a fire Indeed, recognizing such liability would put each water purveyor
throughout the State in the position of being an insurer for any property damage caused by a fire
where, with hindsight, one could argue that the spread of the fire could have been prevented had
the water system only been designed to store and convey more water
The public policy serving as the foundation of inverse condemnation liability was described in
Holtz v Superior Court (1970) 3 Cal 3d 296 303
The relevant policy' basis of article I, section 14, was succinctly defined in
Clement v State Reclamation Board (1950) 35 Cal 2d 628, 642 The decisive
consideration is whether the owner of the damaged property if uncompensated
would contribute more than his proper share to the public undertaking ' In other
words, the underlying purpose of our constitutional provision in inverse as well
1 The court also relied upon an investigation that conclude[d]that there[was]no other cause of that fire (Ibid)
2 On the latter point the court cited Belair v Riverside County Flood Control Dist (1988)47 Cal 3d 550 a case
evaluating inverse condemnation in the context of a flood control project
3 The more difficult question was whether the defendant utility was a public agency that damaged the
Barhams property for a public use (Id at 751 752 ) Because the court was not convinced that any significant
differences exist regarding the operation of publicly versus privately owned electric utilities as applied to the facts in
this case and there is no rational basis upon which to found such a distinction the court concluded that the
defendant utility was be liable in inverse condemnation as a public entity (Id at 753 )
Item 13 - Page 58 -230-
as ordinary - condemnation is to distribute throughout the community the loss
inflicted upon the individual by the making of the public improvements (Bacich
v Board of Control (1943) 23 Cal2d 343, 350) to socialize the burden to
afford relief to the landowner in cases in which it is unfair to ask him to bear a
burden that should be assumed by society" (Mandelker, Inverse Condemnation
The Constitutional Limits of Public Responsibility, 1966 Wis L Rev 3, 8)
The California Supreme Court in Holtz identified a countervailing public policy that was an
equally important part of the determination of whether to further expand liability in inverse
condemnation
In announcing our holding in Albers we did not overlook the competing
considerations which caution against an open-ended, `absolute liability rule of
inverse condemnation Recognizing that fears have been expressed that
compensation, allowed too liberally, will seriously impede, if not stop, beneficial
public improvements because of the greatly increased cost, we deemed it prudent
to focus our policy inquiry on situations which shared a general factual similarity
with that present in Albers Thus, we limited our holding of inverse
condemnation liability, absent fault, to physical injuries of real property that were
proximately caused by the improvement as deliberately constructed and planned
(Holtz supra, at 304 ) In Varjabedian v City of Madera(1977) 20 Cal 3d 285, 298, the court
analyzed the question of whether inverse condemnation liability should arise from the recurring
violation of their property by a gaseous effluent ' (Id, at 297 ) After concluding that an
allegation that the plaintiffs' land was 'made untenantable for residential purposes sufficed to
allege a permanent and substantial impairment' in their use of the land," the court turned to the
second part of the policy analysis that is required in order to expand inverse condemnation
liability into a new area
At the same time, fears that compensation will seriously impede, if not stop'
the beneficial construction of sewage treatment plants might be realized if courts
were to award compensation for every objectionable odor, however insubstantial
or widely disbursed, produced by such facilities [¶] If a plaintiff can
establish that his property has suffered a "direct and peculiar and substantial"
burden as a result of recurring odors produced by a sewage facility—that he has,
as in Ricards, been in effect'singled out" to suffer the detrimental environmental
effects of the enterprise—then the policy favoring distribution of the resulting loss
of market value is strong (Holtz I,supra, 3 Cal 3d at pp 303-304) and the
likelihood that compensation will impeded necessary public construction is
relatively slight In these circumstances, the necessity of breathing noxious
sewage fumes may be a burden unfairly and unconstitutionally imposed on the
individual landowner
(Id, at 297-298 )
Some decades after Varjabedian, the California Supreme Court, in a trio of cases
concerned with damages caused by flooding, applied`the competing considerations
which caution against an open ended, `absolute liability rule of inverse condemnation,
mentioned in Holtz by creating a rule of reasonableness
-231 a Item 13 Page 59
When a public flood control system fails to protect land from historic periodic
flooding, the only way to determine whether a damaged private landowner has
thereby been forced to contribute a compensable disproportionate" share of the
public undertaking is to determine whether the system, as designed, constructed,
operated, and maintained, exposed him to an unreasonable risk of harm, either
individually or in relation to other landowners
Therefore, when a public flood control improvement designed to divert or
rechannel potentially dangerous water flow is a substantial cause of
property damage, courts must balance public need against the gravity of
private harm in determining whether to compensate the landowners for
that damage (Belair,supra, 47 Cal 3d at p 566, 253 Cal Rptr 693, 764
P 2d 1070, quoting Van Alstyne, supra 20 Hastings L J at p 455, fn
omitted) This balancing of interests serves both the private sector
and public improvement efforts by addressing the cost spreading objective
of the just compensation clause while protecting public entities from
unlimited, undeserved liability that could well inhibit further construction
of public works
(Bunch v Coachella Valley Water Dist (1997) 15 Cal 4th 432,450-451 (citing Belair v
Riverside County Flood Control Dist (1988) 47 Cal 3d 550 and Locklin v City of
Lafayette (1994) 7 Cal 4th 327) )
In its minute order below, the trial court concluded that this cases should be governed by
applying a rule declared in the Belair case when a public flood control improvement
fails to function as intended, and properties historically subject to flooding are damaged
as a proximate result thereof, plaintiffs recovery in inverse condemnation requires proof
that the failure was attributable to some unreasonable conduct on the part of the
defendant public entities, by simply substituting fire for flood and "flooding"
Although the trial court was undeniably on the right track in trying to avoid a rule of
strict liability, the court did not go far enough Two Third Appellate District cases—also
in a flood control context—provide a more applicable rule
As Akins v State of California(1998) 61 Cal App 4th 1, explained at page 45 'The
Bunches sought to make the public entity strictly liable for failing to guard against a
bigger storm ' Thus, the gravamen of their claim was that a more robust flood control
system should have been constructed That claim is not properly justiciable The Akins
court previously noted that public entities have no duty to provide protection against
flooding from natural causes (See e g , Tri-Chem Inc v Los Angeles County Flood
Control Dist (1976) 60 Cal App 3d 306, 132 Cal Rptr 142 ) 4
This thread of analysis was picked up by the Third Appellate District in Paterno v State of
California (1999) 74 Cal App 4th 68
4 The court made this statement in the context of explaining how the rule quoted in the text was a corollary to the
rule declared in Belair that if the flood control project worked perfectly and the storm exceeded the design
capacity the storm could be the sole cause of the injury The statement in Belair is thus predicated on accidental
flooding from natural forces exceeding design capacity breaching a project designed to reduce the risk of harm from
natural forces (Akins supra 61 Cal App 4th at 45 )
Item 13 ® Page 60 -232-
[T]he government need not provide any level of flood protection (Tri-Chem Inc
v Los Angeles County Flood Control Dist (1976) 60 Cal App 3d 306, 312 [132
Cal Rptr 142] ) It would be an unwarranted usurpation of power for a judge to
impose liability for failure to upgrade a project, rather than for a defect in the
project planned by the executive and legislative branches
Where channels are dug, there is a continuing obligation to monitor a risk
created by the public entities (Akins supra 61 Cal App 4th at p 41, fn 37
[contrasting Tri-Chem] Locklin supra 7 Cal 4th at p 379 (cone opn of Mosk,
J ) [alteration of drainage should create duty to monitor impact of runoff as
urbanization occurs] ) This does not create a duty to beef up a levee system (See
Akins supra 61 Cal App 4th at pp 46-47 [contrasting cases where flooding
occurs in spite of flood projects] ) Such a duty would make flood control projects
insurers against floods, a result eschewed by the California Supreme Court
(Bunch supra 15 Cal 4tb at p 454, Belair,supra 47 Cal 3d at p 565 )
The Attorney General properly observes liability based on a failure to upgrade
places the determination of a projects scope in the hands of those who have
caused the protected area to be more extensively used, rather than in the hands of
the public entities and elected officials charged with that determination He
continues, with considerable understatement, Whether [resolution of such
concerns] should be achieved by building more dams, bigger levees, restricting
development in high risk areas, or some other means, however, has not been
assumed by the courts as within their province to decide We agree Judges do
not decide where to build dams and levees nor how high
(Paterno, 74 Cal App 4th at 96-97 )
The same analysis applies with equal force to the determination of what facilities are
appropriate for fire protection as part of a system whose day-to-day functioning is more
concerned with meeting peak needs for municipal, industrial and commercial uses A
rule that allows courts to second guess ' the quantities of water their respective water
systems have been designed to store and convey, will seriously impede, if not stop,
beneficial public improvements because of the greatly increased cost' of designing and
constructing a system to thwart such second-guessing For these reasons, it is
respectfully requested that this court draw a bright line"rule that public entities whose
public improvements do not start a fire, but whose improvements only fail to deliver
sufficient water to prevent a fire that has already started, are not subject to liability in
inverse condemnation
Yours Very Truly,
Carl P A Nelson
cc see attached service list
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