Foley Investments v. Alisal Water Corp. ( 2021 )

Filed 11/16/21; Certified for Publication 12/9/21 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
FOLEY INVESTMENTS, L.P., D079045
Plaintiff and Appellant,
v.
(Super. Ct. No. 17CV002074)
ALISAL WATER CORPORATION,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Monterey County,
Susan J. Matcham and Marla O. Anderson, Judges. Affirmed.
Noland, Hamerly, Etienne & Hoss and Michael Masuda for Plaintiff
and Appellant.
Law Offices of John A. Biard, Steven R. Myers and William P.
Schneider for Defendant and Respondent.
Foley Investments, LP (Owner) asserted inverse condemnation and tort
claims against Alisal Water Corporation dba Alco Water Service (Alco) after
an Alco-owned water main that runs through a portion of Owner’s apartment
complex repeatedly ruptured. In the first phase of a bifurcated bench trial,
the court ruled against Owner on its inverse condemnation claim. The court
found the water main did not serve a “public use” for inverse condemnation
purposes because Alco installed the main under a private contract with
Owner’s predecessor for the sole benefit of the subject property. In the second
phase, the court found the tort claims were barred by “fire protection”
immunity (Pub. Util. Code, § 774)1 because Alco constructed and maintained
the main on the subject property in a particular way to meet the property’s
particular fire protection needs. The court entered judgment in Alco’s favor.
On appeal, Owner contends the trial court erred by finding the water
main does not serve a public use for purposes of the inverse condemnation
claim, and by finding fire protection immunity bars the tort claims. As we
will explain, based on the historical facts as found by the trial court, we find
no error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Santana Apartments are a residential apartment complex located
at 1235 Garner Avenue (the Property) in Salinas. Alco provides water service
to the Property via a 12-inch main (the Santana main).
In 2017, Owner filed a lawsuit against Alco alleging the Santana main
ruptured in 2015 and 2016, causing extensive damage to the Santana
Apartments. Owner asserted claims for inverse condemnation, nuisance,
trespass, and negligence. A few months after filing suit, Owner amended its
complaint to allege the Santana main had since ruptured a third time.
By stipulation, the trial court bifurcated the trial. In phase 1, the court
would decide the “public use” element of Owner’s inverse condemnation
1 Public Utilities Code section 774 states in part: “No water corporation
which has undertaken to provide fire protection service . . . shall be liable for
any . . . damage to or loss of property resulting from a failure to . . .
maintain . . . any equipment or other fire protection facility or service.”
Further undesignated statutory references are to the Public Utilities Code.
2
claim. If the court found the Santana main served a public use, Owner would
dismiss its remaining tort claims and phase 2 would consist of a jury trial
solely on inverse condemnation damages. If, however, the court found the
Santana main did not serve a public use, the court would dismiss the inverse
condemnation claim and phase 2 would consist of a jury trial on Owner’s
remaining tort claims.
Phase 1 Trial
Evidence
During the phase 1 trial, Owner’s general partner and an engineering
expert testified on Owner’s behalf, and Alco’s president and an engineering
expert testified on Alco’s behalf. We set forth their testimony in the light
most favorable to the judgment. (See Border Business Park, Inc. v. City of
San Diego (2006) 142 Cal.App.4th 1538, 1554 [“we defer to the express or
implied factual findings of the trial court”].)
Alco is a privately owned water company regulated by the Public
Utilities Commission (PUC). It serves about 9,000 metered service
connections in the eastern portion of Salinas. Alco obtains its water from
underground wells, and distributes it through a system of interconnected
water mains located primarily under city streets.
Alco’s usual practice for providing water service to a property is to run
a service line from an Alco main to a meter at the property’s boundary, from
which point the property owner is responsible for installing and maintaining
service lines to the property.
In 1986, before the Property was developed, Alco installed an
underground well and pump within an exclusive easement toward the
eastern boundary of the Property. Alco connected the well to a main beneath
Cortez Street (the Cortez main), located east of the Property.
3
In late 1986, the Property’s prior owner (Developer) began developing
the Santana Apartments on the Property. The fire marshal required that
Developer install two fire hydrants on interior portions of the Property.
Developer and Alco entered into a “main extension contract” under which
Alco agreed to install the Santana main on the Property to meet the fire
hydrants’ minimum flow requirements. Developer designed the Santana
main, with input from Alco. Alco’s president testified that, but for
Developer’s particular needs vis-à-vis the fire hydrants, Alco would not have
installed the Santana main on the Property. Instead, Alco would have
followed its usual practice of providing water service to the boundary line, as
Alco had done for neighboring apartment complexes. Developer granted Alco
easements for the Santana main over the Property; Alco did not take the land
by eminent domain.
The Santana main originates at an Alco main beneath Garner Avenue
(the Garner main) to the west of the Property, and terminates at a “gate
valve” within Alco’s well easement on the eastern end of the Property. The
other side of the gate valve connects to Alco’s well and the Cortez main via a
smaller 10-inch pipe. Alco’s president and engineering expert acknowledged
that if the gate valve were opened, water would flow between the Garner
main and Cortez main—and throughout Alco’s entire distribution system.
And an Alco map of its distribution system appears to show the Garner main
and Cortez main connecting via the Santana main and gate valve. This
configuration led Owner’s expert to opine that Alco’s use of a valve (rather
than a cap) rendered the Santana main an integral part of Alco’s overall
distribution system, thus serving a public use.
4
But Alco’s president testified that Alco has never opened the valve.
Indeed, for operational concerns involving sediment and disinfection, it is
against Alco’s policy to open the valve. Alco’s engineering expert testified the
closed valve was designed to function as a simpler and less expensive cap for
the Santana main.2 Owner’s engineering expert conceded that “[i]f the gate
valve has remained closed all these years, . . . in essence [it] has served as a
cap,” and the Santana main “serves no customers other than those that are
actually on the Santana Apartments parcel.”
The Santana main directly feeds the two fire hydrants on the Property.
Alco’s expert testified that because these hydrants are located in the interior
portion of the gated Santana Apartments complex, firefighters would not use
the hydrants when fighting fires at neighboring properties. Thus, the
hydrants benefit only the Property.
The Santana main also indirectly feeds the Santana Apartments’
individual buildings via nine 2-inch service laterals that branch off from the
Santana main. All of the ruptures at issue in this case occurred in the 12-
inch Santana main, not the 2-inch service laterals.
The Santana Apartments consist of 81 units that house about 400
occupants. However, Alco has only a single customer at the Property:
Owner. Alco does not bill the apartment’s individual tenants.
Ruling
The trial court found the Santana main does not serve a public use.
The court made three key factual findings that brought the case more in line
2 The alternative was to install an actual cap, which would require
installation of a concrete “thrust block” to reinforce the cap against the
thousands of pounds of water pressure exerted by the main. Concrete thrust
blocks are complex and expensive to install. By contrast, a gate valve simply
and inexpensively functions as a cap by using the water pressure from the
opposite side of the valve as a thrust block.
5
with the authority on which Alco relied (Cantu v. Pacific Gas and Electric Co.
(1987) 189 Cal.App.3d 160 (Cantu)) than the authority on which Owner relied
(Barham v. Southern Cal. Edison (1999) 74 Cal.App.4th 744 (Barham)).3
First, the court found it significant that Alco installed the Santana main
pursuant to a contract, rather than pursuant to its eminent domain
authority. Second, the court found that although Alco’s use of a valve rather
than a cap “is arguably a sign that further distribution was intended,” the
record contained “no evidence that the valve was ever opened,” which
“supports the conclusion that [Alco] did not use the [Santana] main as a part
of its overall distribution system, and did indeed use the valve as a cap.”
Third, the court consequently found the Santana “main only serviced the
residents of the apartment complex and was not designed to deliver water
over a greater area.”
Phase 2
Instead of proceeding to a phase 2 jury trial on Owner’s remaining tort
claims, by stipulation the court proceeded to try Alco’s fire protection
immunity defense, which, if successful, would bar all of Owner’s tort claims.
The parties further stipulated the court could consider all the evidence that
was admitted during the phase 1 trial. They did not present any new
testimony.
The parties filed trial briefs arguing their respective positions on the
immunity issue. Alco argued it was entitled to immunity because instead of
adhering to its usual practice of simply bringing a small-diameter pipe to a
meter at the property line, Alco entered into a main extension contract with
Developer to install a large-diameter main on the Property “specifically . . . as
a fire protection main . . . to meet [Developer]’s peculiar fire protection
3 We discuss Cantu and Barham at length in Discussion part I, below.
6
requirements” with respect to the two “privately-owned fire hydrants.” Alco
also cited the fact that its PUC tariff governing water service to the fire
hydrants specifically incorporates the immunity statute.4 Alco maintained
the “incidental use of” the Santana main to provide domestic water service to
the Santana Apartments did not preclude immunity.
Owner argued in its trial brief that Alco was not entitled to immunity
because the statute applies only to firefighting (rather than fire protection)
equipment and activity. Further, Alco’s main extension contract with
Developer stated in the “PURPOSE OF CONTRACT” section that the
Santana main “will be used for the purpose of furnishing public utility water
service” to the Property. And although the contract also included a “FIRE
PROTECTION” section setting forth fire hydrant flow requirements, the
PUC’s Main Extension Rule No. 15, which was incorporated into the contract,
stated, “Extensions solely primarily for fire hydrant [or] private fire
protection . . . shall not be made under this rule.” Owner maintained these
provisions indicate the Santana main primarily serves the apartment
complex’s domestic water needs, rather than a fire protection purpose.
After hearing argument from counsel, the trial court found that fire
protection immunity bars Owner’s tort claims. The court found the Santana
main constitutes fire protection equipment because it “was designed in such a
way to be able to provide adequate water to the hydrants,” and “is supplying
water to the hydrants.” The court also found that providing a “compliant
water delivery system to the fire hydrants” was the reason Alco went “beyond
its normal meter service” of delivering water to the property boundary, and
4 Publicly regulated utilities must file tariffs with the PUC setting forth
rates and other terms and conditions. (See Colich & Sons v. Pacific Bell
(1988) 198 Cal.App.3d 1225, 1232.) “ ‘A public utility’s tariffs filed with the
PUC have the force and effect of law.’ ” (Ibid.)
7
instead installed the Santana main on the Property. Once there, the Santana
main provided domestic water service to the apartment complex merely as a
“convenience.”
The court entered judgment in Alco’s favor.
DISCUSSION
I. The Santana Main Does Not Serve a Public Use
Owner contends the trial court erred by finding the Santana main does
not serve a public use, thus disposing of Owner’s inverse condemnation claim.
Owner does not challenge the sufficiency of the evidence supporting the trial
court’s factual findings regarding the Santana main. Therefore, we review de
novo whether those now-undisputed facts establish that the Santana main
serves a public use. (Cantu, supra, 189 Cal.App.3d at p. 163; Barham, supra,
74 Cal.App.4th at p. 752.) We conclude they do not.
“An inverse condemnation action . . . is an eminent domain action
initiated by one whose property was taken or damaged for public use.”
(Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596, 601 (Pacific Bell);
see Cal. Const., art. I, § 19.) “The fundamental policy underlying the concept
of inverse condemnation is that the costs of a public improvement benefiting
the community should be spread among those benefited rather than allocated
to a single member of the community.” (Pacific Bell, at p. 602; see Belair
v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 558.)
“A successful inverse condemnation claimant must prove that a public
entity has taken or damaged its property for a public use.” (Pacific Bell,
supra, 81 Cal.App.4th at p. 602; see San Diego Gas & Electric Co. v. Superior
Court (1996) 13 Cal.4th 893, 939-940.) “ ‘A public use is “a use which
concerns the whole community as distinguished from a particular individual
or a particular number of individuals.” ’ ” (Customer Co. v. City of
8
Sacramento (1995) 10 Cal.4th 368, 381; see City of Los Angeles v. Superior
Court (2011) 194 Cal.App.4th 210, 221.)
Alco contends Cantu, supra, 189 Cal.App.3d 160 establishes that the
Santana main is not a public use, whereas Owner contends Barham, supra,
74 Cal.App.4th 744 establishes it is a public use. We agree with Alco.
In Cantu, the developer of a subdivision contracted with a utility
company to provide electrical and gas service to the 16 lots within the
subdivision. (Cantu, supra, 189 Cal.App.3d at p. 162.) The utility installed a
trench within the subdivision to accommodate its electrical and gas lines.
(Id. at p. 163.) Years later, during heavy winter rains, a landslide occurred in
the subdivision, damaging the plaintiffs’ home. (Ibid.) The plaintiffs sued
the utility for inverse condemnation, alleging the utility’s trench was a
contributing cause of the landslide. (Ibid.) Following a bench trial, the court
found the utility liable in inverse condemnation. (Ibid.) The Court of Appeal
reversed, finding the utility facilities at issue were “for a private use and
therefore inverse liability principles are inapplicable.” (Id. at p. 164.)
The Cantu court based its finding of no public use on two key
circumstances. (Cantu, supra, 189 Cal.App.3d at pp. 164-165.) First, the
court found it “would be unfair” (id. at p. 165) to impose inverse
condemnation liability when “service was provided pursuant to a contract
between the private developer and [the utility]” rather than by the utility’s
exercise of its eminent domain authority (id. at p. 164). The court reasoned
that whereas a utility’s acquisition of property by eminent domain reflects
“an economic business decision to assume liability in the event damage to
neighboring property is proximately caused by its improvement,” the “same
cannot be said . . . where [an] easement was granted by [a] private developer
at no cost to [the utility].” (Id. at p. 165.)
9
Second, the Cantu court found it significant that the utility trench “was
designed to fulfill an individual need” for a single subdivision—it was not
part of a larger system “designed to transmit electricity over a much greater
area and which would exist even if these particular plaintiffs were not
customers.” (Cantu, supra, 189 Cal.App.3d at pp. 164-165.) Because the
utility facilities “did not benefit the public at large but [were] for the private
use of the plaintiffs and their neighbors,” the court found that imposing
inverse condemnation liability would be inconsistent with the doctrine’s
underlying rationale that “the risks of injury [from public activity] should be
spread over society.” (Id. at p. 165.)
In Barham, on which Owner relies, homeowners sued an electrical
utility for damage caused to their property by a wildfire that allegedly started
when Santa Ana winds caused the utility’s overhead power lines to break.
(Barham, supra, 74 Cal.App.4th at pp. 747-748.) The power lines were part
of a “circuit” that “provide[d] electric service to more than 1,000 households.”
(Id. at p. 754.) A jury found in the homeowners’ favor on their tort claims,
but the trial court, relying heavily on Cantu, rejected their inverse
condemnation claim. (Id. at pp. 747, 754.) The homeowners appealed the
latter ruling, and the Court of Appeal reversed. (Id. at pp. 747-748.)
In reversing, the Barham court distinguished the power lines at issue
in its case from the trench at issue in Cantu. (Barham, supra, 74
Cal.App.4th at p. 754.) Whereas the trench in Cantu was “found to have been
designed to fulfill an individual need” and thus “was ‘unlike the construction
of permanent transmission towers or power lines . . . which are designed to
transmit electricity over a much greater area,’ ” those were “precisely the
type of facilities” at issue in Barham. (Barham, at p. 754.) The Barham
court found inapplicable the Cantu court’s “public policy” concern about
10
“spread[ing] the cost to the public at large through inverse liability” because
the power lines in Barham provided “a much greater service to the public at
large.” (Barham, at p. 754.)
Under the facts as found by the trial court, we find Cantu dispositive.
First, as with the utility company in Cantu, Alco installed the Santana main
pursuant to a contract with a private developer, rather than through its
eminent domain authority. (Cantu, supra, 189 Cal.App.3d at p. 164.) Thus,
Alco did not make the type of “economic business decision” that justifies
imposing inverse condemnation liability. (Id. at p. 165.)
Second, as with the trench in Cantu, the Santana main was “designed
to fulfill an individual need.” (Cantu, supra, 189 Cal.App.3d at p. 164.) Alco
constructed and maintained a 12-inch main directly on the Property (as
opposed to merely delivering water to the Property’s boundary) specifically to
meet the flow requirements of the fire hydrants, which benefit only the
Property. (Id. at p. 165 [“the trench was installed specifically to furnish
electrical service for plaintiffs and their neighbors”].)
Also as with the trench in Cantu, and unlike the power lines in
Barham, the Santana main does not provide “service to the public at large”
(Barham, supra, 74 Cal.App.4th at p. 754) via facilities “designed to transmit
[service] over a much greater area” (Cantu, supra, 189 Cal.App.3d at p. 164).
The trial court expressly found that the gate valve at the end of the Santana
main “indeed” functioned as a cap. Under this circumstance, Owner’s expert
conceded the main “serves no customers other than those that are actually on
the Santana Apartments parcel.”
Owner emphasizes the possibility that Alco could open the valve in the
future, in which case the Santana main would serve the public at large. (See,
e.g., Pacific Gas & Electric Co. v. Parachini (1972) 29 Cal.App.3d 159, 164
11
[“In determining” whether “the taking of property is necessary to the public
use . . . , the court is entitled to consider not only present needs, but those
which can be fairly anticipated on account of future growth.”].) But Alco’s
president and engineering expert testified it was Alco’s policy not to open the
valve, that there were operational reasons for not doing so (sediment and
disinfection concerns), and that Alco intended the valve to serve as a simpler
and less expensive cap. The trial court reasonably concluded from this
testimony—and Alco’s 32-year history of never having opened the valve—that
Alco did not intend to do so in the future. (Id. at p. 165 [“Whether a use can
be ‘fairly anticipated’ is essentially a factual issue . . . .”].)
Owner also argues that, even assuming the valve serves as a cap, the
Santana main nevertheless serves a public use because it serves
approximately “400 people” who live in the Santana Apartments, which is
“far more than the 16 homes in Cantu.” This argument fails for several
reasons. First, it ignores the fact that Alco has only one customer at the
Property: Owner. Second, it conflates people and homes—a more apt
comparison would be of the Santana Apartments’ 81 units to Cantu’s 16
homes and Barham’s 1,000 households. When properly framed, the Property
is more akin to the subdivision in Cantu than the dispersed households in
Barham. Finally, the argument ignores the significance of the parties’
private contract and the overarching risk-spreading policy considerations
underlying inverse condemnation. (See Pacific Bell Telephone Co. v.
Southern California Edison Co. (2012) 208 Cal.App.4th 1400, 1406, fn. 4
[noting the importance of the private contract in Cantu].)
Owner cites several cases to support the proposition that a finding of
public use is determined “not upon the fact of who or how many may be using
or may be expected to use the particular service, but rather upon whether use
12
of the service is available to anyone in a position to use it regardless of who
he may be.” (Slemons v. Southern California Edison Co. (1967) 252
Cal.App.2d 1022, 1028; see Madera Ry. Co. v. Raymond Granite Co. (1906)
3 Cal.App. 668, 682-683.) However, whereas Cantu is directly on point, none
of the cited cases involve issues even remotely similar to the issue before us.
(Slemons, at p. 1024 [property owners sought to remove utility poles from
their property; no inverse condemnation claim, and “[n]o evidence was
produced or apparently available to establish the basis upon which the poles
and power lines were installed”]; Madera Ry., at pp. 682-683 [addressing
whether a railroad company formed by a granite mining company had
eminent domain authority to condemn a portion of another mining company’s
land to build a railroad on which steam trains would transport granite, wood,
and cattle, and which “would be an additional convenience to the
neighborhood generally,” italics added]; Sherman v. Buick (1867) 32 Cal. 241,
255 [roads connecting residences or farms to a main road are not “private”
because “[t]hey are open to every one, who may have occasion to use them,
and are therefore public”].) “ ‘It is axiomatic that cases are not authority for
propositions not considered.’ ” (Aixtron, Inc. v. Veeco Instruments Inc. (2020)
52 Cal.App.5th 360, 386-387.)
In sum, we conclude the Santana main serves “a private use and
therefore inverse liability principles are inapplicable.” (Cantu, supra,
189 Cal.App.3d at p. 164.)
II. Fire Protection Immunity Applies
Owner also contends the trial court erred in finding section 774’s fire
protection immunity bars Owner’s tort claims. Based, again, on the trial
court’s factual findings regarding the nature and purpose of the Santana
main, we conclude fire protection immunity applies.
13
Section 774 provides that “[n]o water corporation which has
undertaken to provide fire protection service . . . shall be liable for any . . .
damage to or loss of property resulting from a failure to provide or
maintain . . . any equipment or other fire protection facility or service . . . .”5
The Legislature enacted this statute in 1972 to provide water companies with
the same immunities that the Government Code provides to public entities
engaged in fire protection service. (Valley Title Co. v. San Jose Water Co.
(1997) 57 Cal.App.4th 1490, 1496, 1501 (Valley Title); see Gov. Code, §§ 850,
850.2, 850.4.) Immunity for “fail[ing] to . . . maintain” fire protection
equipment or facilities (§ 774, italics added) includes a water company’s
failure to “keep [such equipment or facilities] in good repair” (Valley Title, at
p. 1504).
It is undisputed that Alco is a water corporation within the meaning of
section 774. What is disputed is whether the Santana main constitutes fire
protection equipment such that Alco’s construction and maintenance of it
constitutes the provision of fire protection service for which Alco is immune.
We conclude it does.
The courts have made clear that fire protection immunity applies to
water lines and equipment that supply fire hydrants, sprinklers, and other
fire protection systems. (Valley Title, supra, 57 Cal.App.4th at p. 1493 [water
pipe connecting distribution main to building’s “fire protection system”]; New
5 Section 774 states in full: “No water corporation which has undertaken
to provide fire protection service, nor any employee of such corporation acting
in the course and scope of his employment, shall be liable for any death or
injury to a person or damage to or loss of property resulting from a failure to
provide or maintain an adequate water supply or pressure, or any equipment
or other fire protection facility or service; provided, that such immunity from
liability shall not exceed that of a public agency or any of its employees, as
the case may be, under similar circumstances. Nothing in this section shall
preclude the enforcement of any rule, regulation, or order of the [PUC].”
14
Hampshire Ins. Co. v. City of Madera (1983) 144 Cal.App.3d 298, 304 [“a
valve in a city water system used to furnish water to fight fires is part of the
city fire protection ‘facilities’ ”] (New Hampshire); Heieck and Moran v. City of
Modesto (1966) 64 Cal.2d 229, 230-231, 233 [same]; Lanier Investments
v. Department of Water & Power (1985) 170 Cal.App.3d 1, 8 [same, even
where “the malfunctioning water valve was installed on private property
pursuant to a ‘specific contract’ made for the ‘specific purpose’ of protecting
‘specific property’ against fire damage”]; Pacific Bell, supra, 81 Cal.App.4th at
p. 602 [cast iron pipe connected to city’s distribution system that fed fire
hydrant constitutes fire protection equipment; however, immunity did not
apply to inverse condemnation claim].)
The courts have also made clear that fire protection immunity applies
even when there is no fire or active firefighting. (Valley Title, supra,
57 Cal.App.4th at p. 1504 [“section 774 provides immunity from damages
resulting from a failure to maintain (or keep in good repair) fire protection
facilities or equipment, even where those damages arise from the fire
protection equipment itself and not in connection with a fire”]; Razeto v. City
of Oakland (1979) 88 Cal.App.3d 349, 351, 353 [immunity applied to water
15
damage caused when vandals opened a fire hydrant when there was no
fire].)6
What the courts have not made clear is the extent to which fire
protection immunity applies when—as is the case here—equipment or
facilities that serve a fire protection purpose (supplying water to fire
hydrants) also serve a purpose unrelated to fire protection (supplying
domestic water to the apartment complex).
At least one court has implicitly held that fire protection immunity
applies to facilities that serve both fire protection and non-fire protection
purposes. (See New Hampshire, supra, 144 Cal.App.3d 298.) The facility at
issue in New Hampshire was a city “water valve located several blocks away”
from a building that burned. (Id. at p. 301, italics added.) The court’s
reference to this several-block distance suggests the court was aware that the
valve likely served purposes unrelated to fire protection, yet the court
nevertheless found that fire protection immunity applied.
Courts have also held that other immunity statutes apply even when a
facility is used both for the purpose specified in the immunity statute and for
6 The cases on which Owner relies to support a contrary conclusion are
distinguishable because they involve public entities providing services
unrelated to fire protection, which are not subject to fire protection immunity.
(See Varshock v. Department of Forestry & Fire Protection (2011) 194
Cal.App.4th 635, 649-650 [no immunity for driving a fire engine to the scene
of a fire, but immunity for operating it once there]; Wilson v. County of San
Joaquin (2019) 38 Cal.App.5th 1, 13 [no fire protection immunity for fire
department’s provision of emergency medical services]; Lewis v. Mendocino
Fire Protection Dist. (1983) 142 Cal.App.3d 345, 346 [no fire protection
immunity for negligently rescuing a camper trapped beneath a fallen tree];
Vedder v. County of Imperial (1974) 36 Cal.App.3d 654, 660 [no fire protection
immunity for fire caused by city’s negligent storage of chemicals on city
property without adequate fire protection measures]; Potter v. City of
Oceanside (1981) 114 Cal.App.3d 564, 565 [no fire protection immunity where
fire captain’s instructions for addressing a ruptured gas line caused a fire].)
16
other unspecified purposes. (See, e.g., Loeb v. County of San Diego (2019)
43 Cal.App.5th 421, 432-434 [recreational “trail immunity” under Gov. Code,
§ 831.4 applied even though trail was used for both recreational and
nonrecreational purposes]; Burgueno v. Regents of University of California
(2015) 243 Cal.App.4th 1052, 1061 [trail immunity applied to bike path
designed and used for commuting, but which was also used for recreation].)
We conclude it is appropriate to apply fire protection immunity to
Owner’s tort claims because the appellate record establishes that fire
protection was a substantial or significant factor in Alco’s decision to
construct and maintain the Santana main on the Property. Specifically,
Alco’s president testified that but for the Property’s specific fire protection
needs, the Santana main would not exist. Instead, in accordance with its
usual practice, Alco would have delivered water to the Property’s boundary,
from which point Developer would have been responsible for installing and
maintaining onsite infrastructure. Indeed, this is precisely what Alco did
with neighboring apartment complexes. But the Property had a specific fire
protection requirement for two fire hydrants. So Alco deviated from its usual
practice and installed on the Property a 12-inch water main designed to meet
the hydrants’ flow requirements. Significantly, all the ruptures at issue here
occurred in this main, rather than in the service laterals designed to meet the
apartment complex’s domestic water needs. Because the Santana main
would not exist on the Property but for the Property’s specific fire protection
needs, we conclude section 774 applies, and bars Owner’s tort claims.
We are unpersuaded by Owner’s contention that certain provisions in
the contract between Alco and Developer preclude fire protection immunity.
Specifically, Owner cites the fact the contract states the Santana main “will
be used for the purpose of furnishing public utility water service,” and that
17
the contract incorporates PUC Rule 15, which precludes contracts “primarily
for fire hydrant or private fire protection” purposes. But we do not find it
necessary that fire protection be the sole or even primary purpose in order for
fire protection immunity to apply to a mixed use facility; it is sufficient that
fire protection be a substantial or significant purpose. This is a question of
fact, which the trial court resolved in favor of applying immunity. The
substantial evidence discussed above supports the trial court’s findings in
this regard.7
Owner argues that granting immunity to Alco under the present
circumstances would lead to absurd results, like immunizing a water
company if its employee assaulted someone while inspecting a water meter,
or incentivizing water companies to pretextually install a single fire hydrant
somewhere “remote[ ]” as a means of immunizing the entire system for
delivering contaminated water. These hypotheticals bear no similarity to the
facts before us, and ignore that assault remains a crime; property owners can
insure against many forms of damage to their property; and section 774
expressly does not “preclude the enforcement of any [PUC] rule, regulation,
or order” regarding water quality or public safety. (§ 774.)
In sum, because the facts as found by the trial court establish that fire
protection was a substantial or significant factor in Alco constructing and
maintaining the Santana main on the Property, we conclude section 744
immunity bars Owner’s tort claims.
7 Contrary to Owner’s suggestion, no “sleight of hand” arises from the
fact that different judges presided over phases 1 and 2. As noted, the parties
stipulated that the phase 1 evidence was admissible in phase 2, and the
parties discussed this evidence in their phase 2 trial briefs and submitted
excerpts of it to the phase 2 judge.
18
DISPOSITION
The judgment is affirmed. Alco is entitled to its costs on appeal.
HALLER, Acting P. J.
WE CONCUR:
DATO, J.
GUERRERO, J.
19
Filed 12/9/21
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
FOLEY INVESTMENTS, L.P., D079045
Plaintiff and Appellant,
(Super. Ct. No. 17CV002074)
v.
ALISAL WATER CORPORATION,
ORDER CERTIFYING
Defendant and Respondent. OPINION FOR PUBLICATION
THE COURT:
The opinion in this case filed November 16, 2021, was not certified for
publication. It appearing the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c), the requests pursuant to
rule 8.1120(a) for publication are GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for
publication specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words “Not to Be Published in the Official Reports”
appearing on page one of said opinion be deleted and the opinion herein be
published in the Official Reports.
HALLER, Acting P. J.
Copies to: All parties