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A proposed statement of the decision in Wyckoff case

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A proposed statement of the decision in Wyckoff case Powered By Docstoc
					 1   Frederick H. Ebey, Esq. – SBN 33802
     Grunsky, Ebey, Farrar & Howell
 2   A Professional Corporation
     240 Westgate Drive
 3   Watsonville, CA 95076
     Telephone (831)722-2444
 4   Facsimile (831)722-6153
 5   Attorneys for Plaintiff, WAYNE WYCKOFF
 6
 7
 8                                      SUPERIOR COURT OF CALIFORNIA
 9                                           COUNTY OF SANTA CRUZ
10
11   WAYNE WYCKOFF,                                           Case No. CV 173184
12                            Plaintiff,                      [PROPOSED] STATEMENT OF DECISION
13           v.
14   CITY OF SANTA CRUZ, a municipal
     corporation; COUNTY OF SANTA CRUZ, a
15   political subdivision of the State of California,        Complaint filed:     January 31, 2012
     and DOES 1 through 50, inclusive,                        Trial date:          April 15, 2013
16
                              Defendants.
17
18
19           The above-entitled case came on regularly for trial commencing April 15, 2013 and
20   concluding on May 7, 2013 in the above-entitled court, the Honorable Paul M. Marigonda, judge,
21   presiding, sitting with a jury for the tort portion of the case. Messrs. Grunsky, Ebey, Farrar & Howell
22   by Frederick H. Ebey appeared as counsel for plaintiff. Atchison, Barisone, Condotti & Kovacevich
23   by George J. Kovacevich appeared as counsel for the City of Santa Cruz. Jason M. Heath and Jordan
24   Sheinbaum from the Office of the County Counsel appeared as counsel for the County of Santa Cruz.
25   Oral and documentary evidence was introduced on behalf of the respective parties and the cause was
26   argued and submitted for decision.
27           The complaint contained the following six causes of action against both the City of Santa Cruz
28   and the County of Santa Cruz:

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     WYKW21540/pleadings/trial docs/statement-decision
     Wyckoff v. City of Santa Cruz, Santa Cruz Superior Court Case No. CV 173184
     [PROPOSED] STATEMENT OF DECISION
 1                   1.       Inverse condemnation;
 2                   2.       Dangerous condition of public property;
 3                   3.       Nuisance;
 4                   4.       Trespass;
 5                   5.       Diversion of surface water runoff;
 6                   6.       Injunctive relief.
 7           At the commencement of trial, plaintiff moved to sever the sixth cause of action for injunctive
 8   relief because Santa Cruz County was planning on proceeding with the reconstruction of Branciforte
 9   Drive during the summer of 2013 and it was hoped that the construction of the repaired roadway
10   would make the injunctive relief cause of action moot. This motion was granted. Thereafter, plaintiff
11   voluntarily filed a dismissal without prejudice of the injunctive relief cause of action
12           The court then dismissed the fifth cause of action for diversion of surface water runoff after
13   determining that it was included within the causes of action for nuisance and/or trespass. The tort
14   causes of action for (1) dangerous condition of public property, (2) nuisance, and (3) trespass were
15   tried to a jury. The first cause of action for inverse condemnation was simultaneously tried to the
16   court, with the jury to decide the issue of damages on the inverse condemnation claim. On May 1,
17   2013, plaintiff dismissed with prejudice his cause of action for inverse condemnation against the
18   County of Santa Cruz only. On May 3, 2013 the jury returned its verdict in favor of both the City of
19   Santa Cruz and the County of Santa Cruz on the tort claims for dangerous condition of public
20   property, nuisance and trespass and determined that plaintiff had incurred damages of $316,000 based
21   on damage or loss of value to plaintiff’s property of $266,000, loss of plaintiff’s trees of $30,000 and
22   loss of use of plaintiff’s property of $20,000.
23           On May 7, 2013 the court announced its tentative decision on the inverse condemnation cause
24   of action in favor of plaintiff Wayne Wyckoff and against the City of Santa Cruz by an oral statement
25   made in open court in the presence of the plaintiff and his attorneys and the attorney for the City of
26   Santa Cruz and directed that the attorney for the plaintiff prepare the Statement of Decision. The
27   court, having considered the evidence and the arguments of counsel and being fully advised, now
28

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     Wyckoff v. City of Santa Cruz, Santa Cruz Superior Court Case No. CV 173184
     [PROPOSED] STATEMENT OF DECISION
 1   issues the following Statement of Decision as to plaintiff Wayne Wyckoff’s first cause of action
 2   against the City of Santa Cruz for inverse condemnation.
 3                                 I. INVERSE CONDEMNATION LIABILITY
 4           As to the first cause of action for inverse condemnation, the decision of the court is that
 5   plaintiff is the prevailing party on this cause of action and is entitled to recover damages, attorney fees
 6   and allowable costs from the City of Santa Cruz for damage caused to plaintiff’s real property
 7   commonly known as 141 Creekside Lane, Santa Cruz, California, 95060 as a result of earth
 8   movement on said property occurring on or about March 26, 2011. The factual and legal basis for this
 9   decision is set forth below.
10           A. FACTUAL BASIS FOR DECISION
11           1. On March 26, 2011 and for approximately 35 to 40 years immediately prior thereto,
12   plaintiff, Wayne Wyckoff, owned, occupied and controlled the real property that is the subject of this
13   litigation, commonly known as 141 Creekside Lane, Santa Cruz, California, 95060 (APN 068-262-13,
14   15, and 16.).
15           2. On or about March 26, 2011 an earth movement event occurred on plaintiff’s Creekside
16   Lane property which caused the loss of a substantial amount of soil and the loss of approximately 31
17   trees. As a part of this earth movement, a large portion of Branciforte Drive collapsed onto plaintiff’s
18   property.
19           3. On or about March 26, 2011 and for at least 40 years prior thereto, the City of Santa Cruz
20   (“City”) controlled DeLaveaga Park, which included Old Sand Pit Road and property directly above
21   and below Old Sand Pit Road. DeLaveaga Park and Old Sand Pit Road are located at a higher
22   elevation than, and immediately up-slope, of Branciforte Drive and plaintiff’s property.
23           4. Prior to 2006, the City employed three maintenance workers who maintained the lower area
24   of DeLaveaga Park, including Old Sand Pit Road. Old Sand Pit Road was purposefully designed to
25   intercept, divert, and control surface waters flowing down its length and from a steep hillside directly
26   above it. The drainage improvements located on Old Sand Pit Road include a series of asphalt water
27   bars running diagonally across Old Sand Pit Road that are intended to divert surface water drainage
28   from the outboard side of Old Sand Pit Road to the inboard side. On the inboard side of Old Sand Pit

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     WYKW21540/pleadings/trial docs/statement-decision
     Wyckoff v. City of Santa Cruz, Santa Cruz Superior Court Case No. CV 173184
     [PROPOSED] STATEMENT OF DECISION
 1   Road is an asphalt-lined, V-shaped drainage ditch which received the surface water drainage and
 2   carried it down to a lower elevation on Old Sand Pit Road, where it was disbursed in a controlled
 3   manner immediately adjacent to Branciforte Drive, which was controlled by the County of Santa Cruz
 4   at this location.
 5           5. In or about 2006, the City reduced the three maintenance employees responsible for
 6   maintaining Old Sand Pit Road and other areas of lower DeLeveaga Park down to two employees.
 7   During 2009, the City transferred one of the two remaining maintenance employees, so that only one
 8   employee was responsible for maintaining Old Sand Pit Road and the other areas of lower DeLaveaga
 9   Park; this continued through the date of the slide.
10           6. During 2006 the City stopped performing any annual maintenance on Old Sand Pit Road
11   including cleaning out the V-shaped drainage ditch on the inboard side of the road. By 2009 the
12   drainage ditch had disappeared and was covered with soil. Photographs taken shortly after the slide
13   showed that the drainage ditch was completely covered by soil that had grass growing on it as a result
14   of the deliberate decision of the City to stop performing any substantial maintenance on Old Sand Pit
15   Road. This deliberate decision was made despite the fact that the City knew or should have known
16   that maintenance of the drainage ditch was necessary to prevent water from coming over the outboard
17   edge of Old Sand Pit Road and causing damage below it. The lack of maintenance also included
18   failing to remove soil and debris that built up on the upstream side of the water bars.
19           7. On March 26, 2011,a significant portion of the surface water drainage on Old Sand Pit
20   Road that should have been controlled and diverted to the inboard side of the road instead was
21   diverted over the outboard edge of the road and down the steep slope below Old Sand Pit Road and
22   above Branciforte Drive. The amount of surface water drainage diverted over the outboard edge of
23   Old Sand Pit Road was so significant that it created two landslides below Old Sand Pit Road and
24   above Branciforte Drive. The landslide material and surface water drainage from the northernmost
25   slide moved across Branciforte Drive and created a mud and sand diversion barrier which intercepted
26   the normal flow of drainage coming down Branciforte Drive, plugged up the County’s in-board ditch
27   and drain inlet/cross-culvert and caused the now increased amount of diverted surface waters, along
28   with soil and debris, to go over the outboard edge of Branciforte Drive. This in turn caused an

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     Wyckoff v. City of Santa Cruz, Santa Cruz Superior Court Case No. CV 173184
     [PROPOSED] STATEMENT OF DECISION
 1   erosional event on plaintiff’s real property and the collapse of a large portion of Branciforte Drive on
 2   to plaintiff’s property, with significant resulting damage.
 3           8. All of the geotechnical experts agreed that the earth movement on the Wyckoff property
 4   was not a natural event since the Wyckoff property had been subjected to several more severe storms
 5   in the past and had never suffered an earth movement event during the approximately 35 to 40 years
 6   he owned the property. They all agreed that “something new” occurred in March 2011. The City
 7   offered the opinion of a geologist that the “something new” was water leaking from a drainage pipe on
 8   plaintiff’s property, which caused a “bottom-up” landslide that started on plaintiff’s property.
 9   However, there was no evidence to support this theory other than the geologist’s own opinion. There
10   was no evidence that the drain pipe was broken prior to the subject earth movement slide or that there
11   was any water coming from the drain pipe before the subject earth movement. The geologist’s claim
12   that the major portion of the earth movement occurred on the Wednesday before March 26, 2011 is
13   not credible when the large cavity that would have been created by this claimed soil movement was
14   not seen by the plaintiff (who walked past this area each day) or any other witness.
15           9. The experts produced by the plaintiff and by the County of Santa Cruz testified that the
16   “something new”was uncontrolled water and debris coming from Old Sand Pit Road, as described
17   above in paragraph 7. The court is persuaded that the evidence supports the opinions of these experts.
18   Based upon the evidence presented, the court agrees that the earth movement event that is the subject
19   of this litigation would not have occurred if surface water drainage running along Old Sand Pit Road
20   had been directed toward and drained by the inboard V-shaped ditch as it had been in previous years
21   and not allowed to run over the outboard edge of Old Sand Pit Road. The earth movement on
22   plaintiff’s property, along with the collapse of a large portion of Branciforte Drive on to plaintiff’s
23   property, was a direct result of the City’s decision to stop performing substantial maintenance of the
24   drainage improvements on Old Sand Pit Road and its knowing failure to contain the surface waters on
25   Old Sand Pit Road from escaping the road in an unrestrained manner. Had the City maintained the
26   drainage improvements on Old Sand Pit Road, they would have worked as designed (and as they had
27   worked in the past) and the damages to plaintiff and the collapse of Branciforte Drive would not have
28   occurred.

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     Wyckoff v. City of Santa Cruz, Santa Cruz Superior Court Case No. CV 173184
     [PROPOSED] STATEMENT OF DECISION
 1           10. The City was aware of the risk that if surface water drainage was allowed to drain over the
 2   outboard edge of Old Sand Pit Road it would lead to erosion and landslides. That is why the water
 3   bars and the inboard V-shaped ditch were installed on Old Sand Pit Road and is why the City
 4   employed three maintenance employees to make sure Old Sand Pit Road was properly maintained up
 5   until 2006. Thereafter, in spite of this known risk, the City made the deliberate calculated decision not
 6   to properly maintain Old Sand Pit Road, including the water bars and inboard V-shaped ditch, in an
 7   effort to save money.
 8           11. The City knew or should have known that its maintenance program was inadequate
 9   because the inboard drainage ditch was completely covered up and had largely disappeared by 2009,
10   two years prior to the earth movement event that is the subject of this litigation. The City could have
11   incurred the cost of cleaning out the ditch and cleaning the uphill side of the water bars, but chose not
12   to do so. This decision was made in the face of the known risk of what would happen if surface
13   waters drained over the outboard edge of Old Sand Pit Road.
14           12. City employees were on Old Sand Pit Road on a regular basis between 2006 and March
15   2011, and either knew or should have known that the surface water drainage improvements were no
16   longer capable of performing their function of diverting surface water drainage to the inboard side of
17   the road and carrying it down to its intersection with Branciforte Drive. These facts clearly
18   demonstrate that the City policy was based on deliberate decisions with unfortunate but inevitable
19   results. Ultimately, the evidence is clear that the City’s failure to properly maintain the drainage
20   improvements on Old Sand Pit Road caused the March 26, 2011 earth movement event on Mr.
21   Wyckoff’s property, as well as the failure of Branciforte Drive at this location.
22           B. LEGAL BASIS FOR DECISION
23           1. Any actual physical injury to real property proximately caused by a public improvement as
24   deliberately designed and constructed is compensable whether foreseeable or not pursuant to Article I,
25   Section 19 of the California constitution. Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 263-
26   264 and Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596, 602.
27           2. Damage caused by the public improvement as deliberately conceived, altered or maintained
28   may be recovered under inverse condemnation (Barham v. Southern Cal. Edison Co. (1999) 74

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     Wyckoff v. City of Santa Cruz, Santa Cruz Superior Court Case No. CV 173184
     [PROPOSED] STATEMENT OF DECISION
 1   Cal.App.4th 744, 755) and the presence or absence of fault by the public entity ordinarily is irrelevant.
 2   Marshall v. Department of Water & Power (1990) 219 Cal.App.3d 1124, 1138.
 3           3. A plaintiff who establishes the elements of an inverse condemnation claim may recover for
 4   property damage even though a tort claim has been rejected. Pacific Bell v. City of San Diego, supra,
 5   81 Cal.App.4th at p. 603.
 6           4. A public entity’s maintenance of a public improvement amounts to the constitutionally
 7   required “public use” so long as it is the entity’s deliberate act to undertake the particular plan or
 8   manner of maintenance. Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 742 citing Bauer
 9   v. County of Ventura (1955) 45 Cal.2d 276, 284-285.
10           5. The fundamental justification for inverse condemnation liability is that the government,
11   acting in furtherance of public objectives, is taking a calculated risk that private property may be
12   damaged. So long as the entity has made the deliberate calculated decision to proceed with a course
13   of conduct, in spite of a known risk, just compensation will be owed. Arreola v. County of Monterey,
14   supra, 99 Cal.App.4th p. 742.
15           6. Under inverse condemnation principles, a governmental entity’s choice to obtain cost
16   savings on a project carries with it the corollary obligation to pay for the damages caused when the
17   risks attending these costs-saving measures materialize. Holtz v. Superior Court (1970) 3 Cal.3d 296,
18   310-311.
19           7. Mr. Wyckoff was not required to show unreasonableness as an element of his inverse
20   condemnation claim because it does not involve a flood control improvement. Pacific Bell v. City of
21   San Diego, supra, 81 Cal.App.4th at pp. 614-615.
22           8. Alternatively, even if the City’s liability is based on a reasonableness standard, the conduct
23   of the City is unreasonable under the six factors outlined in Locklin v. City of Lafeyette (1994) 7
24   Cal.4th 327, 368-369 for the following reasons:
25           a. The overall public purpose being served by Old Sand Pit Road is very limited, with its use
26   being primarily limited to individuals walking their dogs and people riding mountain bikes. This
27   public purpose did not benefit the plaintiff;
28           b. The degree to which the plaintiff’s loss is offset by reciprocal benefits does not apply to this

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     Wyckoff v. City of Santa Cruz, Santa Cruz Superior Court Case No. CV 173184
     [PROPOSED] STATEMENT OF DECISION
 1   case because Old Sand Pit Road did not provide any benefit to the Wyckoff property;
 2           c. The availability to the public entity of feasible alternatives with lower risks is clear. All the
 3   City had to do was to continue with the same maintenance program that it had in place before it
 4   decided to take cost-saving measures in 2006;
 5           d. The severity of the plaintiff’s damage is great and it far exceeds its relation to the risk-
 6   bearing capabilities of Mr. Wyckoff;
 7           e. The extent to which Mr. Wyckoff’s earth movement damage harmed his property is not
 8   generally considered as a normal risk of land ownership; and
 9           f. Similar damage was not distributed at large over other beneficiaries of Old Sand Pit Road. It
10   was peculiar only to the plaintiff.
11           9. In addition to damages awarded by the jury, a prevailing plaintiff in an inverse
12   condemnation action is also entitled to pre-judgment interest. Such interest accrues not from the time
13   the action is commenced, but from the time the damage occurs. Because the plaintiff has a
14   constitutional right to pre-judgment interest under the Just Compensation Clause, the Legislature
15   cannot restrict this right. Customer Co. v. City of Sacramento (1995) 10 Cal.4th 368, 390.
16           10. The ultimate determination of the rate of interest required for just compensation is a
17   judicial function. Accordingly, CCP §§ 1268.311 and 1268.350, which provide that the rate of such
18   pre-judgment interest shall be based upon the rate of earnings by the Surplus Money Investment Fund
19   merely establish the minimum rate of pre-judgment interest that is allowed while California
20   Constitution Article 15 Section 1 sets the maximum rate of interest of 10%. Customer Co. v. City of
21   Sacramento, supra, 10 Cal.4th at 390-391.
22   //
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25   //
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27   //
28   //

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     Wyckoff v. City of Santa Cruz, Santa Cruz Superior Court Case No. CV 173184
     [PROPOSED] STATEMENT OF DECISION
 1                                 II. INVERSE CONDEMNATION DAMAGES
 2           The jury has determined that plaintiff Wayne Wyckoff incurred total damages in the sum of
 3   $316,000, which the court accepts as his inverse condemnation damages. In addition, Mr. Wyckoff
 4   will be entitled to an award of pre-judgment interest, reasonable attorney fees and costs as determined
 5   by the court upon consideration of plaintiff’s anticipated post-trial motion for attorney fees and his
 6   memorandum of costs and disbursements.
 7
 8   DATED: May _____, 2013                             ___________________________________________
                                                        The Honorable Paul M. Marigonda
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                                                        Judge of the Superior Court
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     Wyckoff v. City of Santa Cruz, Santa Cruz Superior Court Case No. CV 173184
     [PROPOSED] STATEMENT OF DECISION

				
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