Holiday vs. The City of Newport Beach

Plaintiffs have sued the City for: (1) inverse condemnation; (2) nuisance; (3) dangerous condition of public property; and (4) failure to perform mandatory duty.

In its turn, the City of Newport Beach (the “City”) has cross-claimed against a number of governmental entities, including the State of California by and through the Department of Fish and Wildlife (“CDFW”), and private parties. [Cross-Complaint (ROA #26) and Roe amendments (ROA ## 42-45).]

The CDFW has filed its own cross-complaint against The Irvine Land Company, LLC, The Irvine Company, LLC, and Irvine Community Development Company, LLC (collectively, the “Irvine Companies”). [ROA # 131.]

The City has moved for summary judgment or adjudication on Plaintiffs’ SAC, primarily on the ground that the City’s storm drain was not a substantial factor in causing the subject landslide.

In support of its motion for summary judgment/adjudication, the City submits four declarations as well as exhibits. [ROA ## 275-282, 285-286.]

The Sozio Declaration (ROA #258) is counsel’s declaration authenticating certain exhibits. The Vukojevic Declaration (ROA #226) is the declaration of the City’s Utility Director, who has worked for the City since 2013. [Vukojevic Decl., ¶¶ 1, 3.] He is a civil engineer who is familiar with the City’s drainage facilities and has experience designing storm drains. [Id., ¶¶ 2, 5-6.] Vukkojevic describes the various documents (e.g., drainage improvement plan, contracts, photos, inspection video) he reviewed and site inspections he made. From these, he recounts the history of linings. Repairs, and condition of the relevant storm drains. He concludes that the City did not have notice of malfunction or disrepair in regard to the Storm Drain System from 2012 until the landslide. [Id., ¶ 40.]

The City also submits two expert witness declarations. David Colbaugh is an experienced civil/geotechnical engineer and the president of a geotechnical engineering firm. [Colbaugh Decl. (ROA #272), ¶¶ 2-3.] Colbaugh describes site visits and a long list of documents and reports, both historical and related to the slight at

issue, that he reviewed, such as: weather data, soil investigation reports, slope failure investigations, geotechnical investigations, survey maps, grading plans, google earth maps, video inspections of drains. From his interpretation of these, Colbaugh describes the geology of the bluffs, groundwater, the construction and reconstruction of the slope, prior failures of the, the history of ownership and (non)maintenance of the slope – and its instability, the conditions preceding the 2023 slide, and the condition/functionality of the relevant storm drains. He concludes: “Based on my investigation, it is my determination that the Storm Drain was functioning properly before the Landslide, showed no signs of significant disrepair or leaks before the Landslide, and did not contribute to the cause of the Landslide.” [Colbaugh Decl., ¶ 81.]

Finally, the City submits the declaration of Stephen Guerre, an engineering geologist with extensive experience in the geologic and soils-related field. [Guerre Decl. (ROA #270), ¶¶ 2-3.] He, too, describes a number of documents he reviewed, including aerial images, and reports of geologic contours, and geotechnical reports and soil investigation reports also reviewed by Colbaugh. Based on this review and the information and conclusions he drew from it, Guerre has created and presents a table, a graph, a contour map regarding historical bluff instability and the condition of the slope. [Guerre, Exs. 24, 51, 39.]

The factual conclusions and expert opinions reached by Vukojevic, Colbaugh, and Guerre are the evidentiary support for the City’s motion. [See Separate Statement of Undisputed Material Facts (“SUMF” – ROA #268), nos. 3-381.]

In opposition, CDFW submits the declaration of Todd Crampton, an experienced engineering geologist who, based on review of essentially the same documents and data, disputes Vukojevic’s, Colbaugh’s and Guerre’s conclusions. [Crampton Decl. (ROA #424), ¶¶ 1-7. See also CDFW AOE (“COE” -ROA ## 426, 430) and Cheung Decl. (ROA #418) (counsel’s authentication of certain exhibit).]

Crampton’s factual conclusions and expert opinion are the are the evidentiary support for CDFW’s opposition. [See Crampton Decl. (formatting in response to the City’s UMF; CDFW Response to UMF (“RUMF”) and Additional Statement of UMF (“AUMF”) (ROA #420), nos. 2, 15, etc. to no. 381 and nos. 1-5.]

Legal Standard

Under Code of Civil Procedure section 437, a party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that

the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff. Code Civ. Proc. §437c(f)(1).

“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” Id. For summary adjudication of a claim of damages, other than punitive damages, that does not entirely dispose of a cause action, defense, or issue of duty the parties must comply with Code of Civil Procedure section 437c(s)(1).

A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. “A prima facie showing is one that is sufficient to support the position of the party in question.” Id. at 851. A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. Code Civ. Proc. § 437c(p)(2).

A cause of action “cannot be established” if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law. Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597. Alternatively, a moving defendant can show that a cause of action “cannot be established” by submitting evidence – such as discovery admissions and responses – that the plaintiff does not have and cannot reasonably obtain evidence to establish an essential element of his cause of action.

Aguilar v. Atlantic Richfield Co., 25 Cal.4th at 854-855. See also Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 (finding moving defendant may show plaintiff’s lack of evidence by factually devoid discovery responses after plaintiff has had adequate opportunity for discovery); Scheiding v. Dinwiddie Const. Co.(1999) 69 Cal.App.4th 64, 80-81 (finding Union Bank rule only applies where discovery requests are broad enough to elicit all such information); Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1441-1442 (same).

Once the defendant’s burden is met, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action. Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 575. To meet this burden, the plaintiff must present substantial and admissible evidence creating a triable issue. Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163. Theoretical,

imaginative, or speculative submissions are insufficient to stave off summary judgment. Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 481; Bushling v. Fremont Med. Center (2004) 117 Cal.App.4th 493, 510.

The moving party’s affidavits are strictly construed while those of the opposing party are liberally construed. Villacres v. ABM Industries, Inc., 189 Cal.App.4th at 575. The facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences therefrom must be accepted as true. Id.

Discussion

Opposition by Cross-Defendant rather than Plaintiffs

When a defendant moves for summary judgment, but the plaintiff does not oppose the motion, another party may oppose the motion if that party and the defendant are adverse to one another... RND Contractors, Inc. v. Superior Court (2025) 112 Cal.App.5th 697, 699, 703–704.

Allowing parties with an adverse interest to oppose summary judgment furthers the purpose of determining what issues must be resolved at trial. It also serves “the strong public policy favoring disposition on the merits [which] outweighs the competing policy favoring judicial efficiency.” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 398, [policy favored continuing summary judgment hearing].) In this personal injury action, “‘liability can be apportioned in the main action[,]’” Bean v. City of Thousand Oaks (2025) 114 Cal.App.5th 775, 782.

CDFW is not a defendant to Plaintiffs’ SAC. It is a cross-defendant to the City’s cross-complaint for indemnity and contribution, however. [Cross-Complaint (ROA ## 26, 41.).] By that crosscomplaint, the City is “‘trying to escape liability [on Plaintiffs’ SAC] by blaming someone else for Plaintiff[‘s] damages.’ (RND, supra, 112 Cal.App.5th at p. 705.).” Bean v. City of Thousand Oaks, 114 Cal.App.5th at 782.

That makes the City and CDFW adverse parties as to the complaint. CDFW has standing, therefore, to oppose the City’s motion for summary judgment on the SAC.

Merits First Cause of Action for Inverse Condemnation

There is inverse condemnation liability for any physical injury to real property proximately caused by a public improvement as deliberately designed and constructed, whether or not the injury

was foreseeable and in the absence of fault by the public entity. Holtz v. Superior Court (1970) 3 Cal.3d 296, 303–304.

As stated in Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596, 602 “[a] successful inverse condemnation claimant must prove that a public entity has taken or damaged its property for public use.” To establish liability for inverse condemnation, the plaintiff must prove that: (1) there was a taking or damaging by a public entity of a valuable property right; (2) that the taking or damaging was for a public use; and (3) that the invasion or appropriation directly and specifically affected the property owner to his or her injury. City of Los Angeles (2011) 194 Cal. App. 4th 210, 211.

Was the Storm Drain a Substantial Cause of the Landslide? The City contends that Plaintiffs cannot prevail on their inverse condemnation claim because they cannot show that the City damaged their property. That is, they cannot show that the storm drain, as opposed to natural features of the slope plus artificial fill, was a substantial cause of the landslide. Certainly, that is the conclusion of the City’s expert witnesses after review of a plethora of data. [Colbaugh Decl., ¶81. See also Guerre Decl., ¶¶ 38-41; Vukojevic Decl., ¶ 36.]

But CDFW’s expert disagrees with the predicate factual conclusions reached by the City’s experts as support for their opinions. [Crampton Decl., ¶¶ 11-37b.]

In short, there is a conflict in the evidence and thus a triable issue of fact about causation.

The Galaxy Bluff is Not a Public Improvement Owned by the City

The City also argues that it is not liable for Plaintiffs’ damages because it does not own or have a right to control the Galaxy Bluff, including the Slope, and plays no role in its improvement, maintenance or repair. See Ullery v. County of Contra Costa (1988) 202 Cal.App.3d 562, 570 (finding no inverse condemnation where county did not own stream: “By expressly rejecting the offer of dedication, the public entities demonstrated they were foregoing any public use of the property. Although the creek was a part of the drainage system which drained a 40–acre watershed, the absence of dominion and control exhibited by the public entities, supports the trial court’s finding of no public use.

The evidence in this case establishes neither express nor implied acceptance of the dedication offer.”). But see also id. at 568 (“A storm drainage system constructed and maintained by a public entity is a public improvement.”).

While acknowledging ownership of the storm drain, the City contends that the storm drain is not where the landslide originated and is not adjacent to Plaintiffs’ property. [AOE, Exs. 27 and 49; Vukojevic Decl. ¶ 12, Colbaugh Decl. ¶¶ 61, 79.] Based on the records, CDFW presents a contrary conclusion as to where the landslide originated. [Crampton Decl., ¶ 26; AOE Exs. 56, 57. See also UMF and RUMF no. 71.]

In short, there is a triable issue of fact as to an essential predicate to the City’s contention that it is not liable because it did not own the slope itself.

Accordingly, summary adjudication of the first cause of action for inverse condemnation – and thus summary judgment on the entire SAC – is denied.

Second Cause of Action for Nuisance

The elements of an action for private nuisance are: (1) interference with use and enjoyment of property; (2) that is substantial, i.e., that causes the plaintiff to suffer “substantial actual damage”; and (3) that is unreasonable. San Diego Gas & Electric Co. v. Super. Ct. (1996) 13 Cal.4th 893, 938. “[A] plaintiff bringing a cause of action for private nuisance must show harm to a property interest.” Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 402.

“Civ. Code § 3479 defines a nuisance as: ‘Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property....’ ‘A nuisance may be a public nuisance, a private nuisance, or both. [Citation.]’ Newhall Land & Farming Co. v. Superior Court (1993) 19 Cal.App.4th 334, 341.” City of Claremont v. Kruse (2009) 177 Cal. App. 4th 1153, 1163.

Was the Storm Drain a Substantial Cause of the Landslide?

For this cause of action, the City again, and only, relies on its contentions regarding causation of the landslide. But as discussed above, there is a conflict in the evidence and thus a triable issue of fact about causation.

Accordingly, summary adjudication of the second cause of action for nuisance is denied.

Third Cause of Action for Dangerous Condition of Public Property

Government Code § 835 provides,

Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) [a] negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) [t]he public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Government Code § 830 defines “dangerous condition” as being “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” Govt. Code § 830(a).

Except where the doctrine of res ipsa loquitur is applicable, the occurrence of an accident is not in and of itself evidence that public property was in a dangerous condition. Govt. Code § 830.5(a).

Was the Storm Drain a Substantial Cause of the Landslide? For this cause of action, the City again relies on its contentions regarding causation of the landslide. But as discussed above, there is a conflict in the evidence and thus a triable issue of fact about causation.

The Galaxy Bluff is Not a Public Improvement Owned by the City For this cause of action, the City again also argues that it is not liable for Plaintiffs’ damages because it does not own or have a right to control the Galaxy Bluff, including the Slope, and plays no role in its improvement, maintenance or repair.

For the reasons discussed above, there is triable issue of fact as to where the landslide starting and thus the role the storm drain that the City concededly owns.

Did The City Have Notice of a Dangerous Condition? The City contends that it did not have notice of any dangerous condition of any property owned by it as there is no allegation it created a dangerous condition and no evidence it had or was given notice of one. [SAC; Vukojevic Decl. ¶¶ 16, 19, 21, 25-31, 34-36; Colbaugh Decl., ¶¶ 18, 63- 64, 66-68, 70, 73, 75-81; Guerre Decl., ¶ 40; AOE Exs. 20, 25, 28-35, 37.]

CDFW disputes this, pointing to, among other things, early evidence of the slope sliding and evidence that the CMP had a 3 inch gap that was known but not necessarily repaired and water was seen flowing from near the storm drain. Colbaugh Decl. ¶¶ 9-10, 21, 22, 24-26, 37a, 37b; COE Exs. 2 (at ex. 5) 7, 20, 29, 30-31, 38; see also UMF and RUFM at nos. 234-47, 261, 165, 157-76, 281.]

Given this evidence, there is a triable issue of fact whether the City had notice of a dangerous condition.

Is the City Is Immune from Liability under Govt. Code §831.25?

(a) Neither a public entity nor a public employee is liable for any damage or injury to property, or for emotional distress unless the plaintiff has suffered substantial physical injury, off the public entity’s property caused by land failure of any unimproved public property if the land failure was caused by a natural condition of the unimproved public property.

(b) For the purposes of this section, a natural condition exists and property shall be deemed unimproved notwithstanding the intervention of minor improvements made for the preservation or prudent management of the property in its unimproved state that did not contribute to the land failure.

Gov. Code, § 831.25.

The City pled immunity as an affirmative defense in its answer. [Answer to FAC (ROA #25), twenty third affirmative defense; Stipulation (Answer to FAC deemed answer to SAC – ROA #146), ¶ 9.]

For this immunity defense the City contends that the Galaxy Bluff itself is naturally prone to instability and the City does not own or control it. But CDFW contends that the statutory immunity is not available here as it is limited to unimproved property, which a manmade storm drain is not.

For all the reasons and evidence previously discussed, this is a triable issue of fact.

But could there be immunity even if the storm drain contributed to the failure of the slope? On the current record, the court finds there is at least a triable issue. See County of San Mateo v. Superior Court (2017) 13 Cal.App.5th 724, 738–739 740 (affirming denial of summary judgment on immunity defense due to triable issue of fact whether artificial changes contributed to dangerous condition of unimproved property).

For all the reasons discussed, summary adjudication of the third cause of action for dangerous condition of public property is denied.

Fourth Cause of Action for Failure to Perform Mandatory Duty Govt. Code §815.6

Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.

Govt. Code, § 815.6.

In their SAC, Plaintiffs allege the City had an applicable mandatory duty under Newport Beach Municipal Code 2.12.080(D) and Government Code section 818.6.

Newport Beach Municipal Code 2.12.080:

The Utilities Department shall be under the supervision of the Utilities Director. The functions of the Utilities Department shall include: A. Maintenance and operation of the City water system; B. Maintenance and operation of the City sewer system; C. Maintenance and operation of the City’s street sweeping program; D. Maintenance and operation of the City’s storm drain system; E. Maintenance and operation of the City street lighting system;

F. Management of the City’s oil and gas operations; G. Management of the regulations found in Title 14; and H. Such other functions as may be delegated by the City Manager or the City Council. (Ord. 2023-22 § 53, 2023; Ord. 2018-8 § 3, 2018: Ord. 2018-6 §§ 1, 3, 2018; Ord. 2011-17 § 1 (part), 2011)

A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, other than its property (as defined in subdivision (c) of Section 830), for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety.

Govt. Code, § 818.6.

Courts use a three-prong test to determine whether an entity is liable under Section 815.6: “(1) an enactment must impose a mandatory, not discretionary duty; (2) the enactment must intend to protect against the kind of risk of injury suffered by the party asserting section 815.6 as a basis for liability; and (3) breach of the mandatory duty must be the proximate cause of the injury suffered.” State of California v. Superior Court (1984) 150 Cal.App.3d 848, 854.

The City disputes that Newport Beach Municipal Code 2.12.080(D) imposes a mandatory duty on the City.

But that section expressly provides that the Municipal Operations Division “shall” be responsible for the “[m]aintenance and operation of the City’s storm drain system.” NBMC § 2.12.080(D).

Further, the Newport Beach Municipal Code section described the City’s Public Works Department responsibilities as:

A. Planning, installation, design, preparation, review and approval of plans, specifications and working details, operations and maintenance, and administration of contracts for the construction of public works, including streets, storm drains, water quality sewers, water, harbors, street lighting, traffic signals and other public facilities;

... K. Maintenance and repair of streets, alleys, curbs, sidewalks, storm drains, bridges, piers, bulkheads and floats;

NBMC § 2.12.100(A) and (K) (bold added).

On its face, this would appear to impose a duty on the City to maintain the storm drain in good repair to prevent leaking and discharge – which could cause the very harm at issue here.

On the current record, summary adjudication on the fourth cause of action for failure to perform mandatory duty is denied.

13. 2025-1501947 The Demurrer brought by Cross-Defendants Deckers Fine Gifts & Deckers Fine Collectibles, Inc., Daniel T. Feliciano and Kris Feliciano is sustained, Gifts & with 15 days leave to amend. Collectibles, Inc. vs. The Request for Judicial Notice (ROA No. 114) filed by Cross- Pearson Defendants is granted, pursuant to Evidence Code section 452, subdivisions (c) and (h).

While Cross-Complainants assert the Demurrer was untimely, the Court exercises its discretion to consider it. (See Jackson v. Doe (2011) 192 Cal.App.4th 742, 749.)

“The essential elements of an ejectment action are (1) the plaintiff’s valid interest in the property and (2) the defendant’s wrongful possession and withholding thereof.” (2710 Sutter Ventures, LLC v. Millis (2022) 82 Cal.App.5th 842, 866.)

In demurring to the claim for ejectment, Cross-Defendants assert Complainants cannot allege wrongful possession, relying on the following principle: “A cotenant has no right to oust a person who holds possession with the consent of another tenant in common.” (Verdier v. Verdier (1957) 152 Cal.App.2d 348, 352.) “When a joint tenant leases to a third party he confers upon the latter the same right of possession that he himself has.” (Ibid.) “[A] single cotenant may confer occupancy rights upon a third person.” (Atlantic Oil Co. v. Los Angeles County (1968) 69 Cal.2d 585, 602.)

Cross-Defendants assert the Cross-Complaint concedes they obtained their Lease of the property from a cotenant and, thus, the element of wrongful possession is lacking.

Per the Complaint, Robert E. Pearson, “is the successor trustee of the Maurice A. Enderle Trust dated February 4, 1988 (‘Pearson’) which is the 48% owner of the Property as well as the sole Principal of EMS Development Company (‘EMS’), the original Master Lessee/Sublessor of the 1976 Ground Lease....” (¶5 of Cross-Complaint.)