Nisevic v. City of Los Angeles CA2/5 ( 2013 )

Filed 10/16/13 Nisevic v. City of Los Angeles CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
SINISHA NISEVIC, B244910
Plaintiff and Respondent, (Los Angeles County Super. Ct.
No. SC111319)
v.
CITY OF LOS ANGELES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Craig D.
Karlan, Judge. Affirmed.
Carmen A. Trutanich, City Attorney, Timothy McWilliams, Supervising Attorney,
and Peter E. Langsfeld, Deputy City Attorney, for Defendant and Appellant.
Law Offices of John E. Torbett, Jr., John E. Torbett, Jr.; Manatt, Phelps &
Phillips, Michael M. Berger and Benjamin G. Shatz for Plaintiff and Respondent.
_________________________________
Defendant City of Los Angeles appeals from the judgment of $5,053,548 entered
in favor of plaintiff Sinisha Nisevic in an action for inverse condemnation based on
damage caused when sewage backed up into Nisevic’s property. The City’s only
contention on appeal is that the judgment is not supported by substantial evidence.1 We
affirm.
PROCEDURAL AND FACTUAL BACKGROUND
The liability phase of this inverse condemnation action was tried to the court. The
only issue at the liability phase of trial was causation of damages.
The parties entered into a stipulation to the following facts pertinent to liability.
Nisevic owns a house at 1001 Main Street, Venice (the property), that was damaged by a
sewer back up on August 4, 2010, caused by root intrusion in the City’s sewer main. The
house is connected to the sewer main in an alley behind the house. The City maintains
the sewer main as a public improvement. Sewage damaged various parts of Nisevic’s
home-office.
Nisevic bought the property from William Meurer in 2009, after renting it for two
years. After two sewage backups occurred while he owned the property, Meurer hired a
plumber to install a backwater valve on the lateral line running from the house to the
main sewer line in the alley. The valve, if functioning properly, would prevent sewage
from passing back into the house in the event of a blockage. The plumber told Meurer
that the sewer line in the alley behind the house was old and in disrepair. Installation of
the backwater valve was the only work Meurer had done on the sewer system.
Sage Beagle, a licensed plumber with 23 years experience, performed a video
inspection of the sewer line in May 2012. He observed a backwater valve in the lateral
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Nisevic contends the City has failed to present an adequate record on appeal.
While we agree the record is problematic, for several reasons, we nevertheless resolve the
appeal on the merits. Accordingly, we do not address whether the City has provided a
record sufficient for review.
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line on the property. The valve works by using a flap gate which prevents water from
flowing from the alley into the house. However, it is possible for debris to become stuck
under the flap, which would allow water to flow backward toward the house.
Nisevic did not take steps to alter the sewer system or remove the backwater
valve. He was in Europe on August 4, 2010, when the damage occurred.
The City’s only witness was Barry Berggren, a division manager of the City’s
wastewater collection system. Backwater valves are required on lateral connections to
the main sewer line, installed by licensed plumbers with a permit. No permit could be
found for the valve on the property, nor did it have the required vault built around the
valve, which is designed to allow access for maintenance and cleaning.
According to Berggren, the sewage flow behind Nisevic’s house is from north to
south. City maps show the presence of a terminal maintenance hole in the alley behind
the property, but none existed at the time of the damage. If the terminal had been in place
and lower than the house, the sewage would have passed out the terminal into the alley,
instead of going into the house. Sewage backs up to the lowest point of release if there is
a blockage. The City reinstalled a terminal maintenance hole after the damage, but
workers found no evidence of the original terminal. The alley was in poor condition, and
whoever had performed repair work on the lateral line would have had to cold patch the
alley with asphalt. Berggren believed the terminal was in place at one time because it is
shown on the maps, although there are no as-built plans for this sewer. If there had been
a terminal, he has no idea how it was removed or who removed it.
Berggren testified there are thousands of terminals routinely paved over when the
City does road paving. He is not sure why a homeowner would cover the terminal and
create a risk that sewage could back up into a house. Regular maintenance of sewers is
performed by the City. The damage would not have happened had the tree roots not
caused a blockage.
Nisevic testified in rebuttal that he saw William Garcia, survey chief for the City,
working behind his house after the damage occurred. William Garcia said he was
surveying the property, looking for a manhole that did not exist. William Garcia showed
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Nisevic a map, indicating where the manhole should have been. The next week, Nisevic
spoke with Enrique Garcia, a construction inspector for the City, as the alley was being
dug up. He was told the pipe was broken and tilting the wrong way, causing the sewer to
run uphill from his house. Enrique Garcia pointed out where the manhole should have
been. He said the City occasionally paves over them and they could not locate it with a
metal detector.
Peter Kraut, a professional engineer with expertise in the area of plumbing design,
also testified as a rebuttal witness. The City’s sewer line runs north to south behind the
property. The property was at the end of the main line, so that it should have tilted
downhill, away from the property, but it did not do so. A root blockage in the sewer
downstream from the property caused a sewage back up and the resulting damage. The
blockage was at an intersection in the line, so the sewage from 21 homes up the hill
backed up to the lowest fixture in the area, which happened to be on the property. The
pavement in the alley is lower than the fixtures in the house on the property, such as the
shower drain or toilet.
Kraut believes the backwater valve failed as a result of the improper slope in the
main line, which allowed solids to collect under the flap and sewage to flow into the
house. This would not have occurred had the main line been tilted in the right direction.
Kraut believed there had been a terminal maintenance structure behind the property at
some time. The terminal shown on the City’s maps at the adjacent property at 917 Main
Street also was nonexistent. If the terminal structure behind the property were in place,
the sewage would have spilled into the alley instead of flowing into the house. There is
no reason an owner would remove the terminal, which would be detrimental to his
system, costly to remove, and serve no purpose. The City is responsible for the main
line, and there is no reason for a homeowner to change the main line. The asphalt patch
behind the property is not over the lateral line; instead, the patch runs perpendicular to the
lateral. When the City repaves a street, it is costly to raise or lower manholes, so they
might be paved over for convenience.
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RULING OF THE TRIAL COURT
The trial court engaged in extensive colloquy with counsel before rendering its
decision on liability. The City conceded liability if the court found that the City changed
the slope of the main sewer line or if it removed the terminal maintenance structure.
Since a homeowner had no reason to go to the expense of removing the terminal, the
court reasoned it was more likely done by the City. Additionally, there was no reason a
plumber would alter the main sewer line. It is more likely the City, rather than the
homeowner, removed the terminal. The court doubted the accuracy of the City maps,
which showed the presence of two terminal maintenance structures in the area that did
not exist.
DISCUSSION
The City argues the ruling of the trial court on liability is not supported by
substantial evidence. According to the City, there is no evidence the City’s sewer system
was designed or constructed in the manner described at trial or that the City, or any of its
contractors, damaged or removed a portion of the sewer system. Also, there was no
evidence that the City’s maintenance program of the sewer system contributed to the
conditions on the date of the injury to the property. The City therefore contends Nisevic
did not prove causation, an essential element of inverse condemnation. We disagree.
A. Standard of review
When the sufficiency of the evidence is challenged on appeal, we review the
record to determine if substantial evidence supports the determination of the trial court,
and if so, the judgment must be affirmed. (Escamilla v. Deartment. of Corrections and
Rehabilitation (2006) 141 Cal. App. 4th 498, 514-515 (Escamilla). The substantial
evidence rule requires this court to review the evidence in the light most favorable to the
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prevailing party, giving it the benefit of all reasonable inferences and resolving all
conflicts in its favor. (Jessup Farms v. Baldwin (1983) 33 Cal. 3d 639, 660; Escamilla,
supra, at p. 514.) We do not reweigh the evidence or attempt to evaluate the credibility
of witnesses; those are functions delegated to the trial court. (Escamilla, supra, at
pp. 514-515; Howard v. Owens Corning (1999) 72 Cal. App. 4th 621, 630.)
B. The Elements of Inverse Condemnation
“‘Article I, section 19 (formerly art. I, § 14) of the California Constitution requires
that just compensation be paid when private property is taken or damaged for public use.
Therefore, a public entity may be liable in an inverse condemnation action for any
physical injury to real property proximately caused by a public improvement as
deliberately designed and constructed, whether or not that injury was foreseeable, and in
the absence of fault by the public entity. [Citations.]’ (Souza v. Silver Development Co.
(1985) 164 Cal. App. 3d 165, 170.)” (Marshall v. Department of Water & Power (1990)
219 Cal. App. 3d 1124, 1138.) Negligence in design or construction is not an element of
inverse condemnation, but causation of damage must be established. “It is not necessary
that government’s liability be based on negligence as long as there is a causal relationship
between government’s act or omission and the loss. (Travelers Indem. Co. v. Ingebretsen
(1974) 38 Cal. App. 3d 858, 864.)” (Aetna Life & Casualty Co. v. City of Los Angeles
(1985) 170 Cal. App. 3d 865, 873-874.)
In determining the existence of proximate causation for inverse condemnation, the
plaintiff must prove a substantial cause and effect relationship which excludes the
probability that other forces alone caused the injury. (Belair v. Riverside County Flood
Control Dist. (1988) 47 Cal. 3d 550, 559 (Belair); California State Automobile Assn.
Inter-Insurance Bureau v. City of Palo Alto (2006) 138 Cal. App. 4th 474, 481 (City of
Palo Alto).) “Even where an independent force contributes to the injury, the public
improvement remains a substantial concurrent cause if ‘the injury occurred in substantial
part because the improvement failed to function as it was intended.’ ([Belair, supra,] at
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pp. 559-560.) The public improvement is a substantial cause unless ‘the damage would
have occurred even if the project had operated perfectly.’ (Id. at p. 560.) A public
improvement is a ‘substantial concurring cause’ if other forces alone would not have
caused the damage and the public improvement failed to function as intended. (Ibid.)”
(City of Palo Alto, supra, at p. 481.)
C. Analysis
Under the applicable standard of review, the City’s challenge to the sufficiency of
the evidence of causation is without merit. Contrary to suggestions in the City’s brief
that the trial court’s ruling was based on imagination, hunch, and a guesstimate, the
record demonstrates the court was fully engaged in the fact finding process, questioning
witnesses for both parties in an effort to resolve disputed factual issues, and reached a
thoughtful conclusion amply supported by the evidence.
Viewed in the light most favorable to Nisevic, the record contains substantial
evidence that property damage was caused when sewage backed up as the result of a root
blockage in the City’s sewer main. There was evidence a terminal maintenance hole that
was supposed to be behind the property did not exist, which resulted in sewage flowing
into the property instead of into the alley. There was no evidence a property owner had
removed the terminal, nor was there any reason an owner would have done so. Another
terminal shown on the City’s maps in the same area was also inexplicably missing. On
the other hand, there was substantial evidence that the terminals are sometimes paved
over by the City or its contractors. Finally, there was evidence the sewer main behind the
property was tilted at an improper angle, that allowed sewage to move into the lateral line
on the property, rather than flow downhill. Kraut testified that this improper tilt could
cause solid material to get under the flap on the backwater valve, resulting in a
malfunction that allowed sewage to pass in the direction of the home. The trial court
reasonably concluded there was no evidence the property owner altered the main sewer
line to create the improper tilt.
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The record therefore contains substantial evidence that the sewer failed to function
as intended and the system had been altered by the City, which caused damage to the
property. The City’s evidence that the backwater valve failed does not negate liability, as
it establishes only that there was arguably more than one factor that caused damage to the
property. This does not negate liability. (City of Palo Alto, supra, 138 Cal.App.4th at
p. 483 [“by finding that the blockage occurred in the main, and the blockage caused
sewage to back up into the [plaintiffs’] home, the trial court impliedly found that the
public improvement failed to function as intended . . . [and] the City should be liable
under inverse condemnation”].)
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to plaintiff Sinisha Nisevic.
KRIEGLER, J.
We concur:
TURNER, P. J.
MOSK, J.
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