Superior Court, State of California
DATE: JANUARY 13, 2022 TIME: 1:30 P.M.
PREVAILING PARTY SHALL PREPARE THE ORDER
UNLESS OTHERWISE STATED (SEE RULE OF COURT 3.1312)
|LINE # |CASE # |CASE TITLE |RULING |
|LINE 1 |20CV370177 |Kelly v. Simco Electronics |See tentative ruling. The Court will prepare the|
| | | |final order. |
|LINE 2 |20CV373776 |Ferreyra v. Point Digital Finance, Inc., et |See tentative ruling. The Court will prepare the|
| | |al. |final order. |
|LINE 3 |20CV373926 |Prasad v. Cyxtera Technologies, Inc. |See tentative ruling. The Court will prepare the|
| | | |final order. |
|LINE 4 |18CV321600 |White, et al. v. Santa Clara Valley Water |See tentative ruling. The Court will prepare the|
| | |District, et al. (Consolidated Action/Lead |final order. |
| | |Case) | |
|LINE 5 |2013-1-CV-248813 |Canela v. Costco Wholesale Corporation |See tentative ruling. The Court will prepare the|
| | | |final order. |
|LINE 6 |21CV380292 |Brown v. Security Industry Specialists, Inc. |See tentative ruling. The Court will prepare the|
| | | |final order. |
|LINE 7 | | | |
|LINE 8 | | | |
|LINE 9 | | | |
|LINE 10 | | | |
|LINE 11 | | | |
|LINE 12 | | | |
|LINE 13 | | | |
Calendar Line 1
Case Name: Omeca Kelly v. Simco Electronics, et al.
Case No.: 20CV370177
This is a putative class action on behalf of employees of Defendant SIMCO Electronics. Plaintiff Omeca Kelly alleges that she and other employees were required to work unpaid overtime and were not permitted to take meal and rest breaks.
The parties reached a settlement, which the Court preliminarily approved in an order filed on September 17, 2021. The factual and procedural background of the action and the Court’s analysis of the settlement and settlement class are set forth in that order.
Before the Court are Plaintiff’s motions for final approval of the settlement and for approval of her attorney fees, costs, and service award. The motions are unopposed. As discussed below, the Court is inclined to grant both motions, subject to the parties’ agreement to amend the release to conform with Amaro v. Anaheim Arena Management, LLC (2021) 69 Cal.App.5th 521 (Amaro).
I. LEGAL STANDARD FOR SETTLEMENT APPROVAL
Generally, “questions whether a [class action] settlement was fair and reasonable, whether notice to the class was adequate, whether certification of the class was proper, and whether the attorney fee award was proper are matters addressed to the trial court’s broad discretion.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234–235 (Wershba), disapproved of on other grounds by Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260.)
In determining whether a class settlement is fair, adequate and reasonable, the trial court should consider relevant factors, such as the strength of plaintiffs’ case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.
(Wershba, supra, 91 Cal.App.4th at pp. 244–245, internal citations and quotations omitted.)
In general, the most important factor is the strength of the plaintiffs’ case on the merits, balanced against the amount offered in settlement. (See Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 130 (Kullar).) But the trial court is free to engage in a balancing and weighing of factors depending on the circumstances of each case. (Wershba, supra, 91 Cal.App.4th at p. 245.) The trial court must examine the “proposed settlement agreement to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” (Ibid., citation and internal quotation marks omitted.)
The burden is on the proponent of the settlement to show that it is fair and reasonable. However “a presumption of fairness exists where: (1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.”
(Wershba, supra, 91 Cal.App.4th at p. 245, citation omitted.) The presumption does not permit the Court to “give rubber-stamp approval” to a settlement; in all cases, it must “independently and objectively analyze the evidence and circumstances before it in order to determine whether the settlement is in the best interests of those whose claims will be extinguished,” based on a sufficiently developed factual record. (Kullar, supra, 168 Cal.App.4th at p. 130.)
II. TERMS AND ADMINISTRATION OF SETTLEMENT
The non-reversionary gross settlement amount is $1,000,000. Attorney fees of up to $333,300 (one-third of the gross settlement), litigation costs of up to $25,000, and administration costs of approximately $4,864 will be paid from the gross settlement. The named plaintiff will also seek a service award of $15,000.
The net settlement will be distributed to class members proportionally based on their pay periods worked during the settlement period. Class members will not be required to submit a claim to receive their payments. Settlement awards will be allocated 2/3 to penalties and interest and 1/3 to wages for tax purposes. The employer’s share of any payroll taxes will be paid separately from the settlement fund. Funds associated with checks uncashed after 180 days will be tendered to the Controller of the State of California to be held for the benefit of class members pursuant to the Unclaimed Property Law.
Class members who do not opt out of the settlement will release all claims, demands, etc. “[w]hether known or unknown, that were or could have been asserted in the Case, whether in tort, contract, statute, rule, ordinance, order, regulation, or otherwise, for state wage and hour laws (including, but not limited to, California Labor Code sections 201-203, 204, 218, 218.5, 218.6, 226, 226.7, 510, 512, 1194, 1194.2, 1194.5, 1197, 1197.1, 1198, whether for economic damages, noneconomic damages, restitution, penalties, wages, liquidated damages, interest or attorneys’ fees arising out of the claims at issue, including: the causes of action alleged in the Complaint for alleged failure to pay wages, failure to keep accurate records, failure to provide accurate wage statements, late payment of wages upon termination of employment, and waiting time penalties, which causes of action include, but are not limited to, allegations that Defendant failed to provide meal and rest periods; failed to pay hourly wages; and other derivative claims (e.g., accurate wage statements, failure to timely pay final wages, and unfair competition).”
In the Court’s view, this release is a bit too vague and/or broad in light of the recent opinion in Amaro. Amaro instructs that a release of class claims “must be tied to the factual allegations in the complaint, not the claims or theories of liability asserted.” (Amaro, supra, 69 Cal.App.5th at p. 538, italics original.) Here, the release encompasses claims arising out of the “claims” at issue in the case. Prior to the hearing on this matter if possible, the parties shall meet and confer about whether they can amend the release to conform with Amaro. (See id. at pp. 539–539.)
The notice process has now been completed. There were no objections to the settlement or requests for exclusion from the class. Of 72 notice packets, 4 were re-mailed to updated addresses and 2 were ultimately undeliverable. The administrator estimates that the average payment to class members will be $8,769.90,[1] with a maximum payment of $16,839.89.
At preliminary approval, the Court found that the proposed settlement provides a fair and reasonable compromise to Plaintiff’s claims, and that the PAGA settlement is genuine, meaningful, and fair to those affected. It finds no reason to deviate from these findings now, especially considering that there are no objections. The Court is thus prepared to find that the settlement is fair and reasonable for purposes of final approval, assuming the parties agree to amend the releases to conform to Amaro.
III. ATTORNEY FEES, COSTS, AND INCENTIVE AWARD
Plaintiff seeks a fee award of $333,300, or one-third of the gross settlement, which is not an uncommon contingency fee allocation in a wage and hour class action. This award is facially reasonable under the “common fund” doctrine, which allows a party recovering a fund for the benefit of others to recover attorney fees from the fund itself. Plaintiff also provides a lodestar figure of $189,964.50, based on 379.2 hours spent on the case by counsel billing at $400–815 per hour and a paralegal billing at $175 per hour. Plaintiff’s request results in a reasonable multiplier of 1.75. The lodestar cross-check supports the percentage fee requested, particularly given the lack of objections to the attorney fee request. (See Laffitte v. Robert Half Intern. Inc. (Cal. 2016) 1 Cal.5th 480, 488, 503–504 [trial court did not abuse its discretion in approving fee award of 1/3 of the common fund, cross-checked against a lodestar resulting in a multiplier of 2.03 to 2.13].)
Plaintiff’s counsel also requests $15,403.25 in costs, below the estimate provided at preliminary approval. Plaintiff’s costs appear reasonable based on the summaries provided and are approved. The $4,864 in administrative costs are also approved.
Finally, Plaintiff requests a service award of $15,000. To support her request, she submits a declaration describing her efforts on the case. Plaintiff estimates that she spent 85–95 hours working on this case. The Court finds that the class representative is entitled to an enhancement award and the amount requested is reasonable.
IV. ORDER AND JUDGMENT
Subject to the parties’ agreement to amend the release to conform with Amaro, the Court is prepared to grant Plaintiff’s motions for final approval of the settlement and for approval of her attorney fees, costs, and service award. The Court will set a compliance hearing for August 18, 2022 at 2:30 P.M. in Department 1.
The Court will prepare the order and judgment.
***
LAW AND MOTION HEARING PROCEDURES
The Court rescinded, effective June 21, 2021, all prior general orders restricting courthouse access. Remote appearances for complex civil matters are still permitted, but are no longer mandatory. (See General Order Rescinding Portion of May 6, 2020 General Order Concerning Complex Civil Actions, available at
RescindingPortionof050621GeneralOrderConcerningComplexCivilActions.pdf.) If a party gives notice that a tentative ruling will be contested, any party seeking to participate in the hearing remotely should contact CourtCall.
Public access to hearings is available on a listen-only line by calling 888-808-6929 (access code 2752612).
State and local rules prohibit recording of court proceedings without a court order. These rules apply while in court and also while participating in a hearing remotely or listening in on a public access line. No court order has been issued which would allow recording of any portion of this motion calendar.
The court does not provide court reporters for proceedings in the complex civil litigation departments. Any party wishing to retain a court reporter to report a hearing may do so in compliance with this Court’s October 13, 2020 Policy Regarding Privately Retained Court Reporters. The court reporter may participate remotely and need not be present in the courtroom.
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Calendar Line 2
Case Name: Jesus Ferreyra v. Point Digital Finance, Inc., et al.
Case No.: 20CV373776
This putative class and Private Attorneys General Act (PAGA) action is brought on behalf of employees of Defendant Point Digital Finance, Inc.[2] Plaintiffs allege that Defendant failed to provide proper meal and rest breaks, failed to pay overtime and other premium pay at the correct rates, and required employees to work off-the-clock while waiting to clock in. The parties reached a settlement, which the Court preliminarily approved in an order filed on September 9, 2021. The factual and procedural background of the action and the Court’s analysis of the settlement and settlement class are set forth in that order.
Before the Court is Plaintiff’s motion for final approval of the settlement and for approval of his attorney fees, costs, and service award. The motion is unopposed. As discussed below, the Court is inclined to grant final approval, subject to the parties’ agreement to amend the PAGA release to conform with Amaro v. Anaheim Arena Management, LLC (2021) 69 Cal.App.5th 521 (Amaro).
I. LEGAL STANDARDS FOR SETTLEMENT APPROVAL
A. Class Action
Generally, “questions whether a [class action] settlement was fair and reasonable, whether notice to the class was adequate, whether certification of the class was proper, and whether the attorney fee award was proper are matters addressed to the trial court’s broad discretion.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234–235 (Wershba), disapproved of on other grounds by Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260.)
In determining whether a class settlement is fair, adequate and reasonable, the trial court should consider relevant factors, such as the strength of plaintiffs’ case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.
(Wershba, supra, 91 Cal.App.4th at pp. 244–245, internal citations and quotations omitted.)
In general, the most important factor is the strength of the plaintiffs’ case on the merits, balanced against the amount offered in settlement. (See Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 130 (Kullar).) But the trial court is free to engage in a balancing and weighing of factors depending on the circumstances of each case. (Wershba, supra, 91 Cal.App.4th at p. 245.) The trial court must examine the “proposed settlement agreement to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” (Ibid., citation and internal quotation marks omitted.)
The burden is on the proponent of the settlement to show that it is fair and reasonable. However “a presumption of fairness exists where: (1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.”
(Wershba, supra, 91 Cal.App.4th at p. 245, citation omitted.) The presumption does not permit the Court to “give rubber-stamp approval” to a settlement; in all cases, it must “independently and objectively analyze the evidence and circumstances before it in order to determine whether the settlement is in the best interests of those whose claims will be extinguished,” based on a sufficiently developed factual record. (Kullar, supra, 168 Cal.App.4th at p. 130.)
B. PAGA
Labor Code section 2699, subdivision (l)(2) provides that “[t]he superior court shall review and approve any settlement of any civil action filed pursuant to” PAGA. The court’s review “ensur[es] that any negotiated resolution is fair to those affected.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549.) Seventy-five percent of any penalties recovered under PAGA go to the Labor and Workforce Development Agency (LWDA), leaving the remaining twenty-five percent for the aggrieved employees. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 380.)
Similar to its review of class action settlements, the Court must “determine independently whether a PAGA settlement is fair and reasonable,” to protect “the interests of the public and the LWDA in the enforcement of state labor laws.” (Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 76–77 (Moniz).) It must make this assessment “in view of PAGA’s purposes to remediate present labor law violations, deter future ones, and to maximize enforcement of state labor laws.” (Id. at p. 77; see also Haralson v. U.S. Aviation Servs. Corp. (N.D. Cal. 2019) 383 F. Supp. 3d 959, 971 [“when a PAGA claim is settled, the relief provided for under the PAGA [should] be genuine and meaningful, consistent with the underlying purpose of the statute to benefit the public ….”], quoting LWDA guidance discussed in O’Connor v. Uber Technologies, Inc. (N.D. Cal. 2016) 201 F.Supp.3d 1110 (O’Connor).) The settlement must be reasonable in light of the potential verdict value. (See O’Connor, supra, 201 F.Supp.3d at p. 1135 [rejecting settlement of less than one percent of the potential verdict].) But a permissible settlement may be substantially discounted, given that courts often exercise their discretion to award PAGA penalties below the statutory maximum even where a claim succeeds at trial. (See Viceral v. Mistras Group, Inc. (N.D. Cal., Oct. 11, 2016, No. 15-CV-02198-EMC) 2016 WL 5907869, at *8–9.)
II. TERMS AND ADMINISTRATION OF SETTLEMENT
The non-reversionary gross settlement amount is $215,000. Attorney fees of up to $71,666.67 (one-third of the gross settlement), litigation costs not to exceed $15,000, and administration costs estimated at $3,000 will be paid from the gross settlement. $10,000 will be allocated to PAGA penalties, 75 percent of which will be paid to the LWDA. The named plaintiff will also seek an enhancement award of $7,500.
The net settlement will be allocated to settlement class members pro rata based on their weeks worked during the class period. Class members will not be required to submit a claim to receive their payments. Settlement payments will be allocated one-third to wages and two-thirds to interest and penalties for tax purposes, and individual PAGA payments will be allocated 100 percent to penalties. The employer’s share of taxes will be paid separately from and in addition to the gross settlement. Funds associated with checks uncashed after 120 days will be distributed half to Capital Pro Bono, Inc. and half to the Center for Workers Rights Clinic (CWR).[3]
In exchange for the settlement, class members will release all claims “contained in Plaintiff’s Complaint and Plaintiff’s letter to LWDA, and any additional wage and hour claims that could have been brought based on the facts alleged therein, through the Class Period.” Aggrieved PAGA employees will release “any and all claims that were brought or could have been brought under [PAGA], based on the facts or claims alleged in the Complaint or Plaintiff’s letter [i]n the LWDA during the PAGA Claim Period.” Consistent with the statute, aggrieved employees will not be permitted to opt out of the PAGA portion of the settlement.
In the Court’s view, the PAGA release is a bit too vague and/or broad in light of the recent opinion in Amaro. Amaro instructs that a release of class claims “must be tied to the factual allegations in the complaint, not the claims or theories of liability asserted.” (Amaro, supra, 69 Cal.App.5th at p. 538, italics original.) Here, the PAGA release encompasses claims arising out of the “claims” alleged in the complaint and PAGA notice, in addition to claims arising out of facts asserted therein. Prior to the hearing on this matter if possible, the parties shall meet and confer about whether they can amend this release to conform with Amaro. (See id. at pp. 539–539; see also Moniz, supra, 72 Cal.App.5th at pp. 82–83 [trial court appropriately approved release of PAGA claims “that were or could have been pled based on the allegations of the Complaint”].)
The notice process has now been completed. There were no objections to the settlement or requests for exclusion from the class. Of 59 notice packets, one was re-mailed to a forwarding address and none were ultimately undeliverable. The administrator estimates that the average payment to class members will be $1,913.34, with a maximum payment of $2,959.55.
At preliminary approval, the Court found that the proposed settlement provides a fair and reasonable compromise to Plaintiff’s claims, and that the PAGA settlement is genuine, meaningful, and fair to those affected. It finds no reason to deviate from these findings now, especially considering that there are no objections. The Court is thus prepared to find that the settlement is fair and reasonable for purposes of final approval, assuming the parties agree to amend the PAGA release to conform to Amaro.
III. ATTORNEY FEES, COSTS, AND INCENTIVE AWARD
Plaintiff seeks a fee award of $71,666.67, or one-third of the gross settlement, which is not an uncommon contingency fee allocation in a wage and hour class action. This award is facially reasonable under the “common fund” doctrine, which allows a party recovering a fund for the benefit of others to recover attorney fees from the fund itself. Plaintiff also provides a lodestar figure of $76,758, based on 223.1 hours spent on the case by counsel billing at $270–675 per hour. Plaintiff’s request results in a negative multiplier. The lodestar cross-check supports the percentage fee requested, particularly given the lack of objections to the attorney fee request. (See Laffitte v. Robert Half Intern. Inc. (Cal. 2016) 1 Cal.5th 480, 488, 503–504 [trial court did not abuse its discretion in approving fee award of 1/3 of the common fund, cross-checked against a lodestar resulting in a multiplier of 2.03 to 2.13].)
Plaintiff’s counsel also requests $10,696.03 in costs, below the estimate provided at preliminary approval. Plaintiff’s costs appear reasonable based on the summary provided and are approved. The $4,750 in administrative costs are also approved, although these costs are somewhat higher than estimated.
Finally, Plaintiff requests a service award of $7,500. To support his request, he submits a declaration describing his efforts on the case. The Court finds that the class representative is entitled to an enhancement award and the amount requested is reasonable.
IV. CONCLUSION
Subject to the parties’ agreement to amend the PAGA release to conform with Amaro, the Court is prepared to grant final approval. The Court will set a compliance hearing for June 16, 2022 at 2:30 P.M. in Department 1.
The Court will prepare the order and judgment.
***
LAW AND MOTION HEARING PROCEDURES
The Court rescinded, effective June 21, 2021, all prior general orders restricting courthouse access. Remote appearances for complex civil matters are still permitted, but are no longer mandatory. (See General Order Rescinding Portion of May 6, 2020 General Order Concerning Complex Civil Actions, available at
RescindingPortionof050621GeneralOrderConcerningComplexCivilActions.pdf.) If a party gives notice that a tentative ruling will be contested, any party seeking to participate in the hearing remotely should contact CourtCall.
Public access to hearings is available on a listen-only line by calling 888-808-6929 (access code 2752612).
State and local rules prohibit recording of court proceedings without a court order. These rules apply while in court and also while participating in a hearing remotely or listening in on a public access line. No court order has been issued which would allow recording of any portion of this motion calendar.
The court does not provide court reporters for proceedings in the complex civil litigation departments. Any party wishing to retain a court reporter to report a hearing may do so in compliance with this Court’s October 13, 2020 Policy Regarding Privately Retained Court Reporters. The court reporter may participate remotely and need not be present in the courtroom.
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Calendar Line 3
Case Name: Devendra Prasad v. Cyxtera Technologies, Inc., et al.
Case No.: 20CV373926
This putative class and Private Attorneys General Act (PAGA) action is brought on behalf of employees of Defendant Cyxtera Technologies, Inc. Plaintiff Devendra Prasad alleges that Cyxtera failed to pay overtime and other premium pay at the correct rates and provided wage statements that inaccurately stated employees’ total hours worked. The parties reached a settlement, which the Court preliminarily approved in an order filed on October 1, 2021. The factual and procedural background of the action and the Court’s analysis of the settlement and settlement class are set forth in that order.
Before the Court are Plaintiff’s motions for final approval of the settlement and for approval of his attorney fees, costs, and service award. The motion is unopposed. As discussed below, the Court GRANTS final approval.
I. LEGAL STANDARDS FOR SETTLEMENT APPROVAL
A. Class Action
Generally, “questions whether a [class action] settlement was fair and reasonable, whether notice to the class was adequate, whether certification of the class was proper, and whether the attorney fee award was proper are matters addressed to the trial court’s broad discretion.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234–235 (Wershba), disapproved of on other grounds by Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260.)
In determining whether a class settlement is fair, adequate and reasonable, the trial court should consider relevant factors, such as the strength of plaintiffs’ case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.
(Wershba, supra, 91 Cal.App.4th at pp. 244–245, internal citations and quotations omitted.)
In general, the most important factor is the strength of the plaintiffs’ case on the merits, balanced against the amount offered in settlement. (See Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 130 (Kullar).) But the trial court is free to engage in a balancing and weighing of factors depending on the circumstances of each case. (Wershba, supra, 91 Cal.App.4th at p. 245.) The trial court must examine the “proposed settlement agreement to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” (Ibid., citation and internal quotation marks omitted.)
The burden is on the proponent of the settlement to show that it is fair and reasonable. However “a presumption of fairness exists where: (1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.”
(Wershba, supra, 91 Cal.App.4th at p. 245, citation omitted.) The presumption does not permit the Court to “give rubber-stamp approval” to a settlement; in all cases, it must “independently and objectively analyze the evidence and circumstances before it in order to determine whether the settlement is in the best interests of those whose claims will be extinguished,” based on a sufficiently developed factual record. (Kullar, supra, 168 Cal.App.4th at p. 130.)
B. PAGA
Labor Code section 2699, subdivision (l)(2) provides that “[t]he superior court shall review and approve any settlement of any civil action filed pursuant to” PAGA. The court’s review “ensur[es] that any negotiated resolution is fair to those affected.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549.) Seventy-five percent of any penalties recovered under PAGA go to the Labor and Workforce Development Agency (LWDA), leaving the remaining twenty-five percent for the aggrieved employees. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 380.)
Similar to its review of class action settlements, the Court must “determine independently whether a PAGA settlement is fair and reasonable,” to protect “the interests of the public and the LWDA in the enforcement of state labor laws.” (Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 76–77 (Moniz).) It must make this assessment “in view of PAGA’s purposes to remediate present labor law violations, deter future ones, and to maximize enforcement of state labor laws.” (Id. at p. 77; see also Haralson v. U.S. Aviation Servs. Corp. (N.D. Cal. 2019) 383 F. Supp. 3d 959, 971 [“when a PAGA claim is settled, the relief provided for under the PAGA [should] be genuine and meaningful, consistent with the underlying purpose of the statute to benefit the public ….”], quoting LWDA guidance discussed in O’Connor v. Uber Technologies, Inc. (N.D. Cal. 2016) 201 F.Supp.3d 1110 (O’Connor).)
The settlement must be reasonable in light of the potential verdict value. (See O’Connor, supra, 201 F.Supp.3d at p. 1135 [rejecting settlement of less than one percent of the potential verdict].) But a permissible settlement may be substantially discounted, given that courts often exercise their discretion to award PAGA penalties below the statutory maximum even where a claim succeeds at trial. (See Viceral v. Mistras Group, Inc. (N.D. Cal., Oct. 11, 2016, No. 15-CV-02198-EMC) 2016 WL 5907869, at *8–9.)
II. TERMS AND ADMINISTRATION OF SETTLEMENT
The non-reversionary gross settlement amount is $295,000. Attorney fees of up to $98,333.33 (one-third of the gross settlement), litigation costs not to exceed $15,000, and administration costs of up to $5,000 will be paid from the gross settlement. $20,000 will be allocated to PAGA penalties, 75 percent of which will be paid to the LWDA. The named plaintiff will also seek an enhancement award of $10,000.
The net settlement will be allocated to settlement class members pro rata based on their weeks worked during the class and PAGA periods, respectively. Class members will not be required to submit a claim to receive their payments. Settlement payments will be allocated 25 percent to wages and 75 percent to interest and penalties for tax purposes, and individual PAGA payments will be allocated 100 percent to penalties. The employer’s share of payroll taxes will be paid separately from the gross settlement. Funds associated with checks uncashed after 180 days will be paid to the California State Controller Unclaimed Property Division, identifying the associated class member.
In exchange for the settlement, class members will release all claims, rights, etc. “whether known or unknown, that were alleged against Defendant and/or any of the Released Parties, or which could have been alleged based on the facts pled against them, arising out of, in connection with, or based on the PAGA Letter or the Complaint and/or Amended Complaint in the Civil Action,” including “claims for failure to pay wages, failure to pay wages guaranteed or wages at the agreed upon rate and/or failure to calculate wages due at the applicable statutory and/or regular rate of pay or compensation, failure to pay sick pay or paid time off, failure to pay all wages due upon termination, failure to pay waiting time penalties, failure to provide and/or maintain copies of accurate itemized wage statements, failure to maintain records of hours worked and/or accurate payroll records,” and claims under the federal Fair Labor Standards Act (FLSA), UCL, and other specified authorities. “Notwithstanding the foregoing, the Released Claims does not include any individual claim under the Section 16(b) of the FLSA, 29 U.S.C. § 216(b), as to a Class Member who does not opt-in to the Settlement by cashing, depositing or endorsing his or her Settlement Payment check, to the extent that opting-in is required to release such FLSA claims.”[4]
Consistent with the statute, aggrieved employees will not be permitted to opt out of the PAGA portion of the settlement.
The notice process has now been completed. There were no objections to the settlement or requests for exclusion from the class. Of 68 notice packets, one was re-mailed to an updated address and none were ultimately undeliverable. The administrator estimates that the average payment to class members will be $2,222.52, with a maximum payment of $4,113.92.
At preliminary approval, the Court found that the proposed settlement provides a fair and reasonable compromise to Plaintiff’s claims, and that the PAGA settlement is genuine, meaningful, and fair to those affected. It finds no reason to deviate from these findings now, especially considering that there are no objections. The Court thus finds that the settlement is fair and reasonable for purposes of final approval.
III. ATTORNEY FEES, COSTS, AND INCENTIVE AWARD
Plaintiff seeks a fee award of $98,333.33, or one-third of the gross settlement, which is not an uncommon contingency fee allocation in a wage and hour class action. This award is facially reasonable under the “common fund” doctrine, which allows a party recovering a fund for the benefit of others to recover attorney fees from the fund itself. Plaintiff also provides a lodestar figure of $62,737.50, based on 96.8 hours spent on the case by counsel billing at $550–750 per hour and a paralegal billing at $125 per hour. Plaintiff’s request results in a reasonable multiplier of 1.57. The lodestar cross-check supports the percentage fee requested, particularly given the lack of objections to the attorney fee request. (See Laffitte v. Robert Half Intern. Inc. (Cal. 2016) 1 Cal.5th 480, 488, 503–504 [trial court did not abuse its discretion in approving fee award of 1/3 of the common fund, cross-checked against a lodestar resulting in a multiplier of 2.03 to 2.13].)
Plaintiff’s counsel also requests $10,535.12 in costs, below the estimate provided at preliminary approval. Plaintiff’s costs appear reasonable based on the summary provided and are approved. The $5,000 in administrative costs are also approved.
Finally, Plaintiff requests a service award of $10,000. To support his request, he submits a declaration describing his efforts on the case. The Court finds that the class representative is entitled to an enhancement award and the amount requested is reasonable.
IV. ORDER AND JUDGMENT
In accordance with the above, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT:
The motions for final approval and for approval of attorney fees and other items are GRANTED. The following class is certified for settlement purposes:
All non-exempt California employees who worked for Cyxtera from July 1, 2017 through June 1, 2021.
No one is excluded from the class.
Judgment shall be entered through the filing of this order and judgment. (Code Civ. Proc., § 668.5.) Plaintiff and the members of the class shall take from their complaint only the relief set forth in the settlement agreement and this order and judgment. Pursuant to Rule 3.769(h) of the California Rules of Court, the Court retains jurisdiction over the parties to enforce the terms of the settlement agreement and the final order and judgment.
The Court sets a compliance hearing for September 15, 2022 at 2:30 P.M. in Department 1. At least ten court days before the hearing, class counsel and the settlement administrator shall submit a summary accounting of the net settlement fund identifying distributions made as ordered herein; the number and value of any uncashed checks; amounts remitted to the State of California’s unclaimed property fund; the status of any unresolved issues; and any other matters appropriate to bring to the Court’s attention. Counsel shall also submit an amended judgment as described in Code of Civil Procedure section 384, subdivision (b). Counsel may appear at the compliance hearing remotely.
The Court will prepare the order and judgment.
***
LAW AND MOTION HEARING PROCEDURES
The Court rescinded, effective June 21, 2021, all prior general orders restricting courthouse access. Remote appearances for complex civil matters are still permitted, but are no longer mandatory. (See General Order Rescinding Portion of May 6, 2020 General Order Concerning Complex Civil Actions, available at
RescindingPortionof050621GeneralOrderConcerningComplexCivilActions.pdf.) If a party gives notice that a tentative ruling will be contested, any party seeking to participate in the hearing remotely should contact CourtCall.
Public access to hearings is available on a listen-only line by calling 888-808-6929 (access code 2752612).
State and local rules prohibit recording of court proceedings without a court order. These rules apply while in court and also while participating in a hearing remotely or listening in on a public access line. No court order has been issued which would allow recording of any portion of this motion calendar.
The court does not provide court reporters for proceedings in the complex civil litigation departments. Any party wishing to retain a court reporter to report a hearing may do so in compliance with this Court’s October 13, 2020 Policy Regarding Privately Retained Court Reporters. The court reporter may participate remotely and need not be present in the courtroom.
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Case Name: Jean-Marie White, et al. v. Santa Clara Valley Water District, et al.
Case No.: 18CV321600 (lead case)
These related actions arise from the devastating flooding that occurred along Coyote Creek on February 21, 2017. More than 250 individual plaintiffs remain in the case, with Santa Clara Valley Water District (SCVWD) as the remaining defendant.
Before the Court is SCVWD’s motion for summary judgment or, alternatively, summary adjudication of each cause of action asserted against it. Plaintiffs oppose SCVWD’s motion.[5] As discussed below, the Court DENIES SCVWD’s motion.
I. BACKGROUND[6]
As alleged in the operative Omnibus Complaint, the 63-mile Coyote Creek is the longest stream and drains the largest watershed in Santa Clara County, and is located within the over 320-square-mile watershed system managed by SCVWD. (Omnibus Complaint, ¶ 47.) Water stored in Coyote and Anderson Reservoirs, both of which are owned and managed by SCVWD, drains into Coyote Creek, which terminates in the San Francisco Bay. (Id. at ¶ 48.)
A. Historical Flooding Along Coyote Creek and Management of Anderson
Plaintiffs allege that in the early 1980s, SCVWD recognized the need to develop a strategy to better manage its dual responsibilities of flood control and water conservation. (Omnibus Complaint, ¶¶ 55–56.) A district study established that the spillway capacity of Anderson Dam was not large enough to handle the Probable Maximum Flood (PMF) and recommended an enlargement of the spillway. (Id., ¶ 54.) Consultants advised SCVWD that “multipurpose operational criteria to Coyote and Anderson Reservoirs,” known as a “rule curve,” “could result in tangible flood control benefits without excessive loss in water supply.” (Id., ¶ 56.) Their report recommended the adoption of “Rule Curve #30” to balance water conservation with flood protection. (Ibid.)
A series of floods (several of which overtopped the spillway) and efforts to improve the performance of Anderson Reservoir occurred over the years. After significant flooding in the 1990s, SCVWD recognized that to effectively employ the recommended “Rule Curve #30,” it needed to evaluate “[w]hether and how best to increase our discharge capacity at Anderson Reservoir in order to get back to the rule curve quicker.” (Id., ¶ 65, italics original.) But it took no such action. (Id. at ¶¶ 65, 71.) Had the recommended “Rule Curve #30” been in place leading up to the 2017 flood, and had SCVWD retrofitted the spillway and the Dam’s discharge pipe to increase discharge capacity, these measures would have reduced the flood impacts significantly if not prevented them entirely. (Id., ¶ 66.)
Moreover, voters approved special tax assessments proposed by SCVWD to expand its flood control efforts in 2000 (the Clean, Safe Creeks Plan) and 2012 (the Safe, Clean Water and Natural Flood Protection Program). (Omnibus Complaint, ¶ 7.) But SCVWD failed to effectively apply the designated funds to flood control in Plaintiffs’ neighborhoods, where it was obviously needed. (Ibid.) Coyote Creek and its channel were inadequately maintained through the mid-reach section in downtown San Jose, causing a buildup of debris which impaired the channel’s capacity to carry water that overtopped Anderson spillway. (Id., ¶ 155.)
B. The 2017 Flood
On January 9, 2017, in response to forecasts predicting an “atmospheric river” posing a markedly increased flood risk, SCVWD started releasing water from Anderson Dam through its only discharge gate, with a capacity of approximately 425 cubic feet per second. (Omnibus Complaint, ¶ 95.) Despite this effort to lower the water level behind the Dam, Anderson Reservoir reached 68 percent of capacity on January 22 and continued to fill up. (Ibid.) SCVWD did little to reduce water levels beyond exploring the possibility of renting and installing pumps to counter the accumulating water, which never occurred. (Id. at ¶¶ 96–106.) Plaintiffs allege that a pump-over plan implemented in late January 2017 would have prevented the flooding. (Id., ¶ 106.)
The Anderson Dam spillway began to overspill on February 18, leading to the devastating flooding that harmed Plaintiffs. (Omnibus Complaint, ¶ 115.)
C. The Claims Against SCVWD
Based on the allegations summarized above, Plaintiffs assert claims against SCVWD for nuisance, dangerous condition of public property, and inverse condemnation. As stated in its notice of motion, SCVWD moves for summary judgment or, alternatively, summary adjudication of each cause of action on the following grounds:
1. Inverse Condemnation: All water released from SCVWD’s facility in February 2017 was from natural runoff. Plaintiffs cannot show that SCVWD’s facility increased the volume of water flow down Coyote Creek. Plaintiffs only assert negligent operation of SCVWD’s facility, which is insufficient to constitute a cause of action for inverse condemnation. Further, SCVWD has no duty to upgrade its facility. Finally, Plaintiffs cannot establish the damages to Plaintiffs’ properties were substantially caused by an inherent risk presented by the deliberate design, construction, or maintenance of a SCVWD facility.
2. Dangerous Condition of Public Property: Plaintiffs cannot establish a dangerous condition or causation. Further, SCVWD is entitled to government immunities.
3. Nuisance: Plaintiffs cannot establish causation and SCVWD is entitled to statutory government immunities.
II. LEGAL STANDARD
“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; see also Code Civ. Proc., § 437c, subd. (p)(2).)
This standard provides for a shifting burden of production; that is, the burden to make a prima facie showing of evidence sufficient to support the position of the party in question. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850–851 (Aguilar).) The burden of persuasion remains with the moving party and is shaped by the ultimate burden of proof at trial. (Ibid.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Ibid.) The opposing party must produce substantial responsive evidence that would support such a finding; evidence that gives rise to no more than speculation is insufficient. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162–163.)
The traditional method for a defendant to meet its burden on summary judgment is by “negat[ing] a necessary element of the plaintiff’s case” or establishing a defense with its own evidence. (Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) The defendant may also demonstrate that an essential element of plaintiff’s claim cannot be established by “present[ing] evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Aguilar, supra, 25 Cal.4th at p. 855.)
On summary judgment, “the moving party’s declarations must be strictly construed and the opposing party’s declaration liberally construed.” (Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717 (Hepp); see also Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64 [the evidence is viewed in the light most favorable to the opposing plaintiff; the court must “liberally construe plaintiff’s evidentiary submissions and strictly scrutinize defendant’s own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff’s favor”].) Summary judgment may not be granted by the court based on inferences reasonably deducible from the papers submitted, if such inferences are contradicted by others which raise a triable issue of fact. (Hepp, supra, 86 Cal.App.3d at pp. 717–718.)
Even if there are some triable issues in the case, the court has the power to summarily adjudicate that one or more causes of action has no merit, there is no affirmative defense to one or more causes of action, there is no merit to a claim for punitive damages (Civil Code section 3294), or one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. (Code Civ. Proc., § 437c, subd. (f)(1).)
III. FEDERAL PREEMPTION
As an initial matter, while not mentioned in its notice of motion, SCVWD contends that any claims arising from its operation of Anderson Dam and Reservoir are pre-empted by the Federal Power Act (FPA) because Anderson is regulated by the Federal Energy Regulatory Commission (FERC). To support this assertion, SCVWD relies entirely on a declaration by the Chief Operating Officer of its Water Utility Enterprise, Aaron Baker, which does not attach or summarize any FERC license or order governing the Dam. (See Sep. State. ISO Mot. (SS), nos. 38–41.) Mr. Baker’s relevant testimony, in its entirety, is:
Because it has an attached hydroelectric function added in 1988, the dam and reservoir are regulated by [FERC]. SCVWD operates Anderson pursuant to and consistent with the terms and conditions of the FERC orders and has done so since 1988 when first issued. SCVWD has received no notices of violation from FERC for dam operations.
(Decl. of Aaron Baker ISO Mot., ¶ 7.) Plaintiffs dispute these asserted facts and state that the only FERC order produced in this action specifically exempts Anderson from licensing by FERC.[7] (See Pls.’ Resp. to Sep. State. (PRSS), nos. 38–41; Decl. of Anne Kepner ISO Opp., Ex. 14 [August 24, 1984 “Order Granting Exemption From Licensing of a Small Hydroelectric Project of 5 MW or Less”].) They object to Mr. Baker’s testimony about unattached FERC orders based on lack of foundation and lack of authentication.
Even if the Court were to consider Mr. Baker’s testimony that some “FERC orders” with some undisclosed “terms and conditions” govern the operation of the Dam’s “hydroelectric function,” this does not show that Plaintiffs’ claims here are pre-empted. As SCVWD’s own authority states, “parties injured by a licensee’s conduct extrinsic to that authorized by the FERC license are entitled to sue on common law claims for damages.” (United States v. S. Cal. Edison Co. (E.D. Cal. 2004) 300 F.Supp.2d 964, 981.) Any pre-emption “depends on whether the conduct was extrinsic to the FERC order.” (Mot., p. 8.) Without the relevant order or orders before it, there is no way for the Court to undertake this analysis.
SCVWD accordingly fails to meet its initial burden to show any portion of the claims asserted by Plaintiffs are preempted. (To the extent SCVWD attempts to bolster this argument on reply by providing new documents or new arguments, that is improper.)
IV. INVERSE CONDEMNATION
In their first cause of action for inverse condemnation, Plaintiffs allege that as a result of SCVWD’s “use, ownership, maintenance, installation, design, control, plan, or operation of the [Anderson Dam and Reservoir as well as Coyote Creek], water escaped and entered Plaintiffs’ property causing damage.” (Omnibus Complaint, ¶ 147.) Plaintiffs contend that SVCWD failed to (1) increase the capacity of Anderson’s spillway and discharge pipe; (2) adopt a “rule curve” recommended by consultants that would increase flood control without excessive loss in water supply; (3) install pumps to increase the Dam’s discharge capacity; and (4) start emptying the Dam sooner in preparation for this particular storm, which could have avoided the flooding that occurred. Plaintiffs further contend that SCVWD failed to keep Coyote Creek clear below the Dam, which could have avoided the flooding.
SCVWD maintains that the flow of water that harmed Plaintiffs was “all due to natural rain and runoff,” and “Plaintiffs cannot establish Anderson discharged an increased volume of surface water into Coyote Creek.” It further contends that simple negligent maintenance of Anderson cannot support a claim for inverse condemnation. While not mentioned it its notice of motion, SCVWD urges that Government Code section 8655 immunizes it from this claim. Finally, SCVWD argues that lack of maintenance of a natural stream cannot support a claim for inverse condemnation, and there is no facility or structure along Coyote Creek other than Anderson for which SCVWD is responsible.
A. Legal Standard for Inverse Condemnation Liability
“Under article I, section 19 of the California Constitution (article I, section 19), a public entity must pay the owner just compensation when it takes or damages private property for public use.” (City of Oroville v. Superior Court (2019) 7 Cal.5th 1091, 1102 (Oroville).) This provision is the authority for both proceedings initiated by the public entity to take property—otherwise known as “eminent domain”—and those initiated by the property owner for just compensation as a result of a taking—otherwise known as “inverse condemnation.” (Ibid.) A property owner may recover just compensation from a public entity for any actual physical injury to real property “substantially caused by an inherent risk presented by the deliberate design, construction, or maintenance of the public improvement,” whether foreseeable or not. (Id. at p. 1105.) “A link to one of the aforementioned ‘inherent risks’ is necessary, but not sufficient, for a successful inverse condemnation claim. The plaintiff must also establish substantial causation” as a separate requirement. (Id. at p. 1107.)
[M]ultiple concerns, some arguably in tension with each other, are at stake in the interpretation of article I, section 19. One is to pool the burden to the individual property owner and distribute throughout the community the losses resulting from the public improvement. Another is to mitigate concerns that compensation allowed too liberally will seriously impede, if not stop, beneficial public improvements because of the greatly increased cost.
(Oroville, supra, 7 Cal.5th at p. 1103.)
Inverse condemnation claims “arise in a wide variety of contexts … [f]rom underground excavation projects, to street construction, to the distinctive realm of flood control improvements….” (Oroville, supra, 7 Cal.5th at p. 1103.) Within this “proverbial waterfront of public improvements” (ibid.), “the unique problems of flood control litigation” arise “in a distinctive context that bears only a limited relationship to [the] analysis of public improvements in other contexts” (id. at pp. 1108–1109). With flood control projects, and in related situations where damage is “caused by the runoff of surface water from improvements on [public] property into a natural watercourse or from public improvements constructed in or on a watercourse[,] … the public agency is liable only if its conduct posed an unreasonable risk of harm to the plaintiffs, and that unreasonable conduct is a substantial cause of the damage to plaintiff’s property. The rule of strict liability generally followed in inverse condemnation [citation] is not applicable in this context.” (Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 367 (Locklin), citing Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 554 (Belair).)[8]
Specifically, “when a public entity’s design, construction, or maintenance of a flood control project poses an unreasonable risk of harm to property historically subject to flooding and causes substantial damage to it, the property owners may recover damages for inverse condemnation under section 19.” (Bunch v. Coachella Valley Water Dist. (1997) 15 Cal.4th 432, 436 (Bunch).)
When a water project fails, … causing flood damage, the issue is whether the system’s design, construction, and maintenance were reasonable. (Belair, supra, 47 Cal. 3d at p. 565.) If the public entity’s conduct is unreasonable and a substantial cause of damage, the entity “is liable only for the proportionate amount of damage caused by its actions.” (Locklin, supra, 7 Cal. 4th at p. 368.) This inverse condemnation rule invokes constitutional balancing principles and is not governed by tort concepts of fault or negligence. It requires a balancing of the public need for flood control against the gravity of harm caused by unnecessary damage to private property.
(Bunch, supra, 15 Cal.4th at p. 436.)
Here, SCVWD maintains that the Court need not inquire into the reasonableness of its conduct, because no public improvement for which it is responsible was a substantial cause of Plaintiffs’ damages. Plaintiffs contend that the evidence is disputed as to both whether SCVWD caused an increased discharge of water from Anderson, and whether it assumed responsibility for maintaining Coyote Creek.
B. Anderson
1. Material Facts
SVCWD urges there is no dispute that the increased flow of water that harmed Plaintiffs was “all due to natural rain and runoff,” and “Plaintiffs cannot establish Anderson discharged an increased volume of surface water into Coyote Creek.” To support this argument, it relies entirely on Mr. Baker’s declaration, discussed above. (See SS, nos. 23–37.) Among other things, Mr. Baker declares that all of the water entering Anderson Reservoir in the months leading up to the flood was from natural runoff (id., no. 23) and once the Reservoir filled, logic and engineering principles would dictate that no more water exited the spillway than entered the Reservoir from this natural rainfall and runoff (id., no. 37). The Dam did not fail, and the spillway functioned as designed. (Id., nos. 33–34.) The peak flow did not exceed the design capacity of the spillway. (Id., no. 36.)
Plaintiffs dispute these facts only to the extent that there is evidence that water “being contained in Anderson” during the months leading up to the flood was imported from the State Water Project and Central Valley Pipeline, with imports occurring “as late as November 15, 2016.” (See PRSS, no. 23, italics original; see also PRSS, no. 37.) Plaintiffs do not dispute that after this point, beginning in January 2017, several significant storm systems impacted the watershed. (SS & PRSS, no. 24 [this fact undisputed].) On January 9, 2017, SCVWD opened the reservoir’s outlet pipe and left it open until February 20, 2017. (SS & PRSS, nos. 25–26 [disputed only to the extent SCVWD claims opening the pipe lowered the water level behind the dam].) Meanwhile, additional storms hit the watershed from January 9 until February 17, causing the water level in Anderson Reservoir to rise. (SS & PRSS, no. 27 [this fact undisputed].) On February 18, the Reservoir reached capacity, and water began flowing over the spillway. (SS & PRSS, no. 28 [this fact undisputed].) At about 8 a.m. on February 21, 2017, peak flow of about 7,400 cubic feet per second over the spillway was reached, which was the highest discharge ever recorded but well below the design capacity of 57,400 cfs and significantly below the PMF level. (SS & PRSS, no. 30 [this fact undisputed].) This water flowed downstream and overflowed the creek banks in the flood zones where Plaintiffs’ properties are located. (SS & PRSS, no. 31 [this fact undisputed].) Plaintiffs do not dispute that neither the Dam nor the spillway failed. (SS & PRSS, nos. 33, 34, & 36.)
Instead, Plaintiffs point to evidence that SCVWD allowed Anderson “to ‘fill and spill,’ which in turn caused an increased volume and velocity of water to rush into Coyote Creek as a result. (PMF 4-6, 11-14, 16-34, 48-59.)” (Opp., pp. 13–14, emphasis original.) “Specifically, instead of approximately 425 cfs of water entering Coyote Creek from Anderson via its discharge valve as was occurring prior to the overspilling, a peak of approximately 7,400 cfs of water began entering Coyote Creek from Anderson on February 21, 2017, as a result of the dam overspilling. (PMF 50.) This was an approximate three-fold increase in velocity and a seven-fold increase in volume of water. (Id.)” (Opp., p. 14, emphasis original.)
But this evidence does not show any increase in the volume or velocity of water discharged compared to what would have occurred in the absence of the Dam. Rather, Plaintiffs complain that the discharge increased from what was occurring when the Dam was effectively reducing the natural flow from rainfall and runoff.
So it is undisputed that Anderson did not increase the natural flow of water into the creek during the events at issue, compared to the flow that would have occurred in the absence of a dam. The question is whether this negates any possibility that SCVWD’s management of Anderson was a substantial cause of the flooding as a matter of law. SCVWD relies primarily on Locklin, Belair, and an older case, Kambish v. Santa Clara Valley Water Conservation Dist. (1960) 185 Cal.App.2d 107 (Kambish), to argue that it does.
2. Belair, Locklin, and Subsequent Authorities
Locklin held that “[w]hen alterations or improvements on upstream [public] property discharge an increased volume of surface water into a natural watercourse, and the increased volume and/or velocity of the stream waters or the method of discharge into the watercourse causes downstream property damage, a public entity … may be liable for that damage” applying the reasonableness standard discussed above. (Locklin, supra, 7 Cal.4th at p. 337, italics original.) While Locklin addressed public improvements that impacted surface water runoff as opposed to a flood control project, the parties agree that the general standard it describes governs this case. (See Contra Costa County v. Pinole Point Properties, LLC (2015) 235 Cal.App.4th 914, 928 (Pinole) [“after Locklin, there is no valid reason for distinguishing between surface waters and those that flow through a natural watercourse when determining the obligations of landowners”]; see also Bunch, supra, 15 Cal.4th at p. 454 [stating that the “Belair/Locklin reasonableness test applies to cases involving public flood control works that cause physical damage to private property”]; Pacific Shores Property Owners Assn. v. Department of Fish & Wildlife (2016) 244 Cal.App.4th 12, 44–45 [Belair/Locklin test applies “whether the improvements are to a natural watercourse, discharge increased surface water into a natural watercourse, or divert water away from a potentially dangerous natural flow”].)
One recent authority cited by SCVWD stated that “[u]nder Locklin, inverse condemnation liability attaches only where there has been damage from ‘an increased volume or velocity of surface waters discharged into a natural watercourse from public works or improvements on publicly owned land.’ ” (Pinole, supra, 235 Cal.App.4th at p. 938, quoting Locklin, supra, 7 Cal.4th at pp. 337–338, italics added.) But Locklin itself did not go so far: rather, it focused on the theory before it to hold that “if the cause of the damage is claimed to be addition of surface water runoff from public improvements such as roads to the stream flow, a public agency is liable only for the proportionate amount of damage caused by its actions,” if those actions were unreasonable. (Locklin, supra, 7 Cal.4th at p. 368.) Plaintiffs’ theory here is somewhat different, and cannot be resolved by applying one sentence in Locklin out of context.
The key to that larger context is Belair, which Locklin heavily relied on. Belair affirmed a verdict in favor of a flood control district that owned a levee that breached so that it failed to protect the plaintiff’s property from flooding as intended, applying a reasonableness standard. Belair announced the specific version of the reasonableness standard applicable here: “when a public flood control improvement fails to function as intended, and properties historically subject to flooding are damaged as a proximate result thereof, plaintiffs’ recovery in inverse condemnation requires proof that the failure was attributable to some unreasonable conduct on the part of the defendant public entities.” (Belair, supra, 47 Cal.3d at p. 567.) As Bunch stated more recently (and somewhat differently), Belair “held that when a public entity’s design, construction, or maintenance of a flood control project poses an unreasonable risk of harm to property historically subject to flooding and causes substantial damage to it, the property owners may recover damages for inverse condemnation.” (Bunch, supra, 15 Cal.4th at pp. 435–436.)
With regard to the substantial cause requirement, Belair reasoned:
[I]n order to establish a causal connection between the public improvement and the plaintiff’s damages, there must be a showing of “ ‘a substantial cause-and-effect relationship excluding the probability that other forces alone produced the injury.’ [Citations.]” [Citation.] Where independently generated forces not induced by the public flood control improvement -- such as a rainstorm -- contribute to the injury, proximate cause is established where the public improvement constitutes a substantial concurring cause of the injury, i.e., where the injury occurred in substantial part because the improvement failed to function as it was intended. The public improvement would cease to be a substantial contributing factor, however, where it could be shown that the damage would have occurred even if the project had operated perfectly, i.e., where the storm exceeded the project’s design capacity. In conventional terminology, such an extraordinary storm would constitute an intervening cause which supersedes the public improvement in the chain of causation.
(Belair, supra, 47 Cal.3d at pp. 559–560, italics original.)
Critically, Belair explained that “[i]nverse condemnation liability for failure of flood control projects is not predicated upon proof that the public improvement made a preexisting hazard worse.” (Belair, supra, 47 Cal.3d at p. 561, italics original.) But where the public improvement did not in some way fail, but simply was inadequate or not designed to prevent the flooding that occurred, causation is absent: “flooding occurred in spite of the flood control improvements, not because of them.” (Belair, supra, 47 Cal.3d at p. 562; see also Biron v. City of Redding (2014) 225 Cal.App.4th 1264, 1278 [“plaintiffs failed to prove the storm drainage system was a substantial cause of their damage because the system did not fail, it was simply overwhelmed by the amount of water the storm deposited into the system,” citing Belair].)
As one important authority summarized more recently:
The appellate court in Belair had decided that because the plaintiffs’ land had been historically subject to flooding, the levee failure could not be the proximate cause of the damage because it had not increased that historical risk. [Citation.] The Supreme Court disagreed. Belair determined that a flood control project serves the public good by preventing damage that would otherwise be expected to occur in the normal course of events. The flood control project could be a concurring cause of flood damage because adjoining landowners rely on the protection it was built to provide. However, as Belair acknowledged, the flood control project could only be a concurring cause if the flood was one the Project was designed to accommodate.
(Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 747–748 (Arreola), italics added.)[9]
So Belair and subsequent authorities hold that “[i]nverse condemnation liability for failure of flood control projects is not predicated upon proof that the public improvement made a preexisting hazard worse.” (Belair, supra, 47 Cal.3d at p. 561, italics original; see also Akins v. State of California (1998) 61 Cal.App.4th 1, 45, fn. 39 [“[i]f some water would have entered plaintiffs’ homes in the absence of the public works, defendants could still be liable because the public works were a substantial concurring cause of damage,” subject to the reasonableness standard governing properties historically subject to flooding], italics added.) But nor is there liability where such projects fail to prevent damage they were not designed to prevent.
Importantly, “the government need not provide any level of flood protection.” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 96 (Paterno I).) “It would be an unwarranted usurpation of power for a judge to impose liability for failure to upgrade a project, rather than for a defect in the project planned by the executive and legislative branches.” (Ibid.; see also Id. at p. 97 [“Judges do not decide where to build dams and levees, nor how high.”].)
Paterno I made clear that increasing the level of flood protection of a project is what constitutes an upgrade. … [M]easures required so that a project provides the planned level of protection are [not] somehow an upgrade. Work that restores a [project’s] design level of protection is maintenance, not an upgrade.
(Paterno v. State of California (2003) 113 Cal.App.4th 998, 1033 (Paterno II), quotation marks omitted.)
As can be seen from this discussion, and as discussed further below, the modern authorities emphasize a project’s “design level of protection” in evaluating whether it can be considered a substantial cause of damages to property historically subject to flooding.
3. Kambish and Smith
The parties discuss two older cases arising in the context of water storage projects, Kambish and Smith v. East Bay Municipal Utility Dist. (1954) 122 Cal.App.2d 613 (Smith). These cases are outdated in important respects (see, e.g., Kambish, supra, 185 Cal.App.2d at p. 110 [stating that “[a] property owner cannot recover in inverse condemnation unless, on the same facts, he would have a cause of action against a private citizen”]),[10] and address projects that were not intended as flood control projects. Still, the Court will address them to the extent they may provide a “useful analogy” here. (Oroville, supra, 7 Cal.5th at p. 1103.)
Kambish summarized the fundamental holding of both cases:
The owner of a dam may permit flood waters to flow over a dam in such quantities as naturally flow into the reservoir. Such owner is under a duty not to worsen the condition of a downstream owner, but he is under no duty to improve that situation by using the dam for flood control [citing Smith]. Although Smith affirms a judgment for plaintiff on the ground that defendant dam owner imported water from outside the watershed which caused or substantially contributed to the flooding of plaintiff’s land, it clearly enunciates the accepted rule that, lacking such importation, the dam owner is not liable where he has not augmented the flow beyond that which would have occurred in the absence of the dam.
(Kambish, supra, 185 Cal.App.2d at p. 110.)
Plaintiffs urge that Kambish is distinguishable because here, SCVWD imported water and stored it in Anderson Reservoir, which would not have overtopped if it were empty when the storms that caused the flooding began. But there is no dispute that water imports ceased in November 2016, before the storms came. Plaintiffs may raise an issue concerning whether Anderson could have been managed in a different way that would have prevented the flooding, but they do not raise an issue about whether SCVWD’s water imports “augmented the flow [of Coyote Creek] beyond that which would have occurred in the absence of the dam” during the time the flooding occurred. (Kambish, supra, 185 Cal.App.2d at p. 110, italics added.) In fact, Kambish specifically rejected the stored water theory advanced by Plaintiffs here. (Id. at pp. 110–111 [“The most that plaintiff claims is that the canal to Calero reservoir and the creek valve could have been opened two or three days before the heavy rainfall of December 22, thus affording somewhat greater space in the reservoir for retention of the storm waters of December 22. … [¶] [But] defendant was not under a duty to take these measures. The district’s sole purpose was to take advantage of rainfall to store water to be released when rains ceased.”].)
Plaintiffs urge that this case is more like Smith, which Kambish distinguished. But Kambish emphasized that in Smith, the importation of water was ongoing, and the imported water thus “caused or substantially contributed to the flooding of plaintiff’s land” in a manner that the previously stored water in Kambish did not. (Kambish, supra, 185 Cal.App.2d at p. 110, italics added.) Discussing the evidence in that case, Smith noted that “[d]uring the entire time that water passed over the spillway, appellant was putting large quantities of water into the reservoir that did not come from the natural watershed run-off.” (Smith, supra, 122 Cal.App.2d at p. 622.) Smith concluded “that there is evidence … that more water was released from the dam than naturally flowed into the dam from San Pablo Creek. The appellant was under a duty toward respondents not to permit a greater flow of water over the dam than that which would naturally flow into the dam from San Pablo Creek.” (Ibid.)
But Smith, and Kambish after it, reached this conclusion by directly applying common law concepts, which is no longer how courts approach inverse condemnation. (See Smith, supra, 122 Cal.App.2d at pp. 619–620 [citing the “general rule in this country that the owner of a dam may permit flood waters to pass over the dam in such quantities as flowed in,” which is “not altered by the fact that foreign waters are commingled with the natural waters of a stream, if no more water is released than the amount natural to the flow of the stream”], citing People v. Los Angeles (1950) 34 Cal.2d 695 and other cases.) And in both cases, “the district’s purpose [was] water supply and not flood control.” (Id. at p. 617; Kambish, supra, 185 Cal.App.2d at p. 110–111.)
In sum, Kambish and Smith are consistent with SCVWD’s position here. But they do not apply the modern standard, nor do they address projects designed or operated as flood control projects.
4. Analysis
Plaintiffs emphasize that their complaint about Anderson’s discharge of water during the flood is not that the Dam was designed in the manner it originally was back in the 1950s, when (like the projects addressed in Kambish and Smith) its only purpose was water storage. Rather, they urge that Anderson now has dual purposes of water storage and flood control. Plaintiffs contend that, regardless of its original design, SCVWD’s failure to “operate” or “maintain” Anderson appropriately as a flood control project is what caused the spillway to overtop in 2017. As stated in Bunch,
When a public flood control system fails to protect land from historic periodic flooding, the only way to determine whether a damaged private landowner has thereby been forced to contribute a compensable “disproportionate” share of the public undertaking is to determine whether the system, as designed, constructed, operated, and maintained, exposed him to an “unreasonable” risk of harm, either individually or in relation to other landowners.
(Bunch, supra, 15 Cal.4th at p. 450, italics added.)
a. upgrades
“Maintenance” has a specific definition in this context. As stated above, Paterno I and II held that there is no liability in inverse condemnation for failure to upgrade a flood protection project by increasing the level of flood protection it provides: “[I]ncreasing the level of flood protection of a project … constitutes an upgrade.” (Paterno II, supra, 113 Cal.App.4th at p. 1033, quotation marks omitted.) Maintenance, on the other hand, is “[w]ork that restores a [project’s] design level of protection.” (Ibid.)
Here, Plaintiffs complain that SCVWD failed to take measures like increasing the Dam’s spillway and outlet valve capacity and installing pumps to increase discharge capacity. They claim that these measures would increase the flood protection Anderson has provided historically—which failed to prevent a long series of similar floods over the years. But these measures are not “maintenance,” they are upgrades. By contrast, the authorities cited by Plaintiffs in support of this theory, including Paterno II, all involve flood protection projects that failed to function as intended due to inadequate maintenance. For example, Paterno II found a levee that ultimately breached was inadequately maintained:
[T]he trial court found the levee was built with porous, uncompacted mining debris, in a location which encouraged seepage, leading directly to the failure of the levee, and that long before the failure, feasible cures could have fixed the problems. Use of such technology would not have been an upgrade, but would have ensured the planned flood control capacity was achieved.
(Paterno II, supra, 113 Cal.App.4th at p. 1003.)
SCVWD correctly urges that some aspects of Plaintiffs’ inverse condemnation claim pertain to upgrades, and accordingly fail.
b. operation and maintenance
Still, a deliberate choice to “operate” or “maintain” a flood control project in a manner that exposes landowners to an unreasonable risk of harm, and in fact causes such harm, can support inverse condemnation liability. (Bunch, supra, 15 Cal.4th at p. 450.) In this regard, Plaintiffs contend that because there is evidence that Anderson Reservoir was physically capable of preventing the 2017 flooding if it were managed differently, so that less water was stored behind the Dam leading up to the flood, the flood should be deemed within the design level of protection and SCVWD’s operational plan in this regard should be viewed as a substantial cause of the flooding, evaluated under the reasonableness standard.
Arreola is helpful in evaluating this argument. There, vegetation and sediment that had been deliberately allowed to accumulate in a flood control project caused the flow of water in a river to increase, which ultimately caused a levee to give way and inundate the surrounding valley. (Arreola, supra, 99 Cal.App.4th at p. 736.) With regard to causation, Arreola discussed Belair and affirmed that “[a] project’s capacity … bears upon the element of causation.” (Id. at p. 748.) It rejected the defendant’s strict interpretation of the project’s capacity to exclude additional emergency capacity provided by a “freeboard” included in the original design, finding that this “issue … of causation” was not appropriately resolved in defendants’ favor as a matter of law. (Id. at p. 749.) It emphasized “the evidence that the extra room the freeboard was intended to provide was eliminated by Counties’ ineffective maintenance,” making it “appropriate to permit the finder of fact to decide if the flood exceeded the protection the Project was intended to provide by permitting a finding that the freeboard was part of that protection.” (Arreola, supra, 99 Cal.App.4th at p. 749.)
In Arreola, inadequate maintenance reduced the capacity of the project from its designed capacity. That is quite different from Plaintiffs’ theory here: that SCVWD should have adopted a different operating plan that increased Anderson’s capacity for flood protection beyond its original design and long practice. But nevertheless, the project capacity in Arreola was established by considering evidence about how different aspects of the project were intended to function together to create a particular overall capacity. Such evidence is lacking here.
Here, SCVWD relies on the fact that Anderson was not originally designed as a flood control project, and urges that the Dam and its various components did not “fail” in the sense that they broke or failed to move water from one side of the Dam to the other as designed. But this argument ignores that Anderson has long served a dual purpose as a flood control project, and fails to explain the operational plan that was in place in this regard prior to the flood. While SCVWD shows that Anderson did not increase the natural flow of water through Coyote Creek during the flood itself, the modern cases discussed above establish that this is not completely dispositive. To rule out that its operation of Anderson could be considered a substantial cause of the flooding at issue under these modern cases, SCVWD needs to address how Anderson was operated as a flood control project prior to the storm, and what its capacity was in that context.
Plaintiffs appear to suggest that Anderson’s capacity as a flood control project was the total capacity of the Reservoir, which could have held back the floodwaters at issue if it had been completely empty. The Court finds that theory dubious given Anderson’s dual purpose as a water storage facility. But the position suggested by SCVWD’s motion is equally extreme: that because a drought preceded the 2017 storms, its “overall strategy” at the time was to maximize storage, and that is that. (See SS, nos. 16–22.) The Court cannot accept this simplistic conclusion where there is ample evidence that Anderson has long been operated as a flood control project, too. If Anderson was being operated unreasonably leading up to the flood, and this was a substantial cause of harm to Plaintiffs, SCVWD may well be liable.
There is no question that Anderson did not “fail” in the sense that it broke or was breached. But SCVWD provides no authority showing that this is strictly required. Plaintiffs’ theory that Anderson failed to prevent flooding that it would have prevented if operating as “designed” as a flood control project appears somewhat doubtful given the long history of similar flooding in the area and the absence of any duty on SCVWD’s part to upgrade the Reservoir to provide increased flood protection. But it is an issue SCVWD fails to address.
5. Remaining Arguments Regarding Anderson
In addition its argument about causation, SCVWD contends that because the Governor had declared a drought emergency prior to the flood that remained in place until after it was over, the Emergency Services Act (ESA) immunizes SCVWD for any claim related to the storage of water in Anderson, or failure to release water from it. But as outlined in their opposition, Plaintiffs allege that SCVWD’s inadequate plan for operating Anderson long predated the drought. Again, SCVWD fails to show what that plan was, and it fails to show how any changes it implemented in response to the drought impacted the flooding that occurred. So it fails to show Plaintiffs’ claims are “based upon the exercise or performance, or the failure to exercise or perform, a discretionary function or duty … in carrying out the provisions of [the ESA].” (Gov. Code, § 8655, italics added.)
Finally, SCVWD contends that simple negligence cannot support a claim for inverse condemnation, which requires “a faulty plan involving the design, construction and maintenance” of a public improvement, as opposed to “garden variety inadequate maintenance.” (See Tilton v. Reclamation Dist. No. 800 (2006) 142 Ca1.App.4th 848, 859.) But a faulty plan for operating Anderson is exactly what Plaintiffs allege. Again, SCVWD makes no attempt to show what its plan was for operating Anderson as a flood control project, let alone that the flooding that occurred was due to a negligent failure to stick with the plan. So SCVWD does not show that Plaintiffs’ entire claim for inverse condemnation pertains to nothing more than simple negligence.
6. Conclusion
SCVWD fails to show it is entitled to summary adjudication of Plaintiffs’ inverse condemnation claim insofar as it arises from SCVWD’s operation or maintenance of Anderson as a flood control project.
C. Maintenance of Coyote Creek
1. Material Facts
SCVWD introduces undisputed evidence that the Coyote Creek is a natural, undeveloped stream downstream from Anderson to the area of the Plaintiffs’ property, and SCVWD has constructed no facility in the creek that would change its natural features or character other than Anderson.[11] (SS & PRSS nos. 3–4 [these facts disputed only to the extent SCVWD has constructed Anderson and another dam, Coyote Reservoir,[12] within the creek].) But the sole declaration supporting this part of SCVWD’s motion avoids any discussion of how the creek functions in conjunction with Anderson for flood control purposes and whether SCVWD has or ever had any plan in terms of maintaining the creek, or actually does or ever did any such maintenance. (See Decl. of Sue Tippets ISO Mot.)
Plaintiffs do not dispute that Coyote Creek is in a natural condition downstream from Anderson. But they introduce evidence that SCVWD owns and/or controls relevant portions of the creek. (PSS, nos. 36–37.) Coyote Creek “is used by SCVWD to convey released water from Anderson … out to the San Francisco Bay as part of its flood management plan.” (Id., no. 36.) SCVWD consciously decided not to maintain the vegetation and debris in Mid-Coyote Creek even though it was “the agency authorized to perform [such] work, having a fully funded bond measure … and allocating over $20 Million dollars for the Coyote Creek Flood Protection Project,” the primary purpose of which was “to enhance the creek’s flow conveyance to protect residents from flood events.” (Id., nos. 7–9.) Despite knowing of multiple points in Mid-Coyote Creek where trees and other debris blocked the channel, SCVWD chose to put this work “on hold” to focus on other projects, including improving the flow capacity of other major streams. (Id., nos. 10, 41.)
2. Analysis
SCVWD contends that, because it is in a natural condition, Coyote Creek itself is not a public improvement that would support inverse condemnation liability.
“[A] public improvement for the purposes of an inverse condemnation claim involves (1) a deliberate action by the state (2) taken in furtherance of public purposes.” (City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1234 (City of Pasadena).) There is no deliberate action “when the purported public improvement is neither an ‘instrumentalit[y] of the state nor … controlled by the state.’ ” (Id., quoting Moerman v. State of California (1993) 17 Cal.App.4th 452, 459 [elk relocated by the state were not a public improvement].) Mere ownership of undeveloped land does not suffice. (Id., citing Wildensten v. E. Bay Reg’l Park Dist. (1991) 231 Cal.App.3d 976, 979 [landslide on property the government had failed to stabilize did not involve a public improvement].)
But “natural” objects can be part of a public improvement where they are part of some larger plan or system undertaken by a public entity in furtherance of public purposes. For example, in City of Pasadena, it was held that “[s]ince there was evidence demonstrating that the City’s forestry program, of which the subject tree [(which fell on a house during a storm)] is a part, is the result of (1) a deliberate governmental action (2) serving a public purpose, summary adjudication of the inverse condemnation cause of action was properly denied.” (City of Pasadena, supra, 228 Cal.App.4th at p. 1236; cf. Mercury Casualty Co. v. City of Pasadena (2017) 14 Cal.App.5th 917, 931 [reversing trial judgment where tree “was not a work of public improvement because there was no evidence it was planted as part of a planned project or design serving a public purpose or use” and “tree maintenance plan” did “not subject the City to liability for an inverse condemnation claim because no evidence was presented that the plan was deficient”].)
Here, Plaintiffs contend that SCVWD controls relevant portions of Coyote Creek and uses the creek as part of its flood control function to benefit the public, and SCVWD made a deliberate policy choice not to clear the creek. As with its evidence concerning Anderson, SCVWD’s evidence that the creek is in a natural state does not address its overall plan for operating the flood control project of which the creek could potentially be considered a part, and whether maintaining the creek was ever intended to play some role in that overall project. (See Arreola, supra, 99 Cal.App.4th at p. 732 [discussing evidence in that case that “it was important to keep [a river] channel clear in order to maintain the capacity [the flood control project] was intended to have”].)
A discussion in Locklin is on point. Locklin explained that while passively using a watercourse to drain surface water runoff “does not transform the watercourse into a public storm drainage system,” a theory “that the watercourse has become a public work” might be viable where “[a] governmental entity … exert[s] control over and assume[s] responsibility for maintenance of the watercourse.” (Locklin, supra, 7 Cal.4th at p., 370.) SCVWD fails to address those critical issues here.
SCVWD’s motion fails with regard to Coyote Creek as well, and thus as to the entire claim for inverse condemnation.
V. DANGEROUS CONDITION OF PUBLIC PROPERTY AND NUISANCE
SCVWD’s brief argument that there is no causation supporting Plaintiffs’ dangerous condition claim fails for the same reasons already discussed. Its argument addressing vicarious liability for employee negligence is addressed to only two paragraphs of the Omnibus Complaint and does not apply to Plaintiffs’ allegations that SCVWD is directly liable for maintaining Anderson in a dangerous condition. SCVWD thus fails to show there are no triable issues of fact concerning dangerous condition liability arising from Anderson.
As to nuisance, SCVWD contends that because the Santa Clara Valley Water District Act authorizes it to store water and control flood or storm waters impacting the district, these activities cannot constitute a nuisance per Civil Code section 3482, which provides that “[n]othing which is done or maintained under the express authority of a statute can be deemed a nuisance.” (Civ. Code, § 3482.)
The Court (Judge Kirwan) previously denied SCVWD’s demurrer on this ground, explaining:
This provision does not immunize the District from any and all liability for nuisance related to its operation of the Dam as the District appears to suggest. “A statutory sanction cannot be pleaded in justification of acts which by the general rules of law constitute a nuisance, unless the acts complained of are authorized by the express terms of the statute under which the justification is made, or by the plainest and most necessary implication from the powers expressly conferred, so that it can be fairly stated that the legislature contemplated the doing of the very act which occasions the injury.” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 104, citing Hassell v. San Francisco (1938) 11 Cal.2d 168, 171 [while the Water Code authorizes reclamation districts to maintain and operate public works, “[n]o statute commands or permits rodent burrows, buried pipes and so forth”].) Section 3482 does not apply where the nuisance complained of is “a byproduct of a facility constructed in accordance with statutes or regulations authorizing such facilities.” (Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 158 [(Wilson)].)
The Wilson case cited by Judge Kirwan explains in more detail why a statute providing “ ‘general authorization’ ” to a public works project does not constitute an express authorization of every “byproduct” of the operation of that project within the meaning of section 3482. (Wilson, supra, 234 Cal.App.4th at p. 158, quoting Varjabedian v. Madera (1977) 20 Cal.3d 285, 292.) SCVWD continues to rely on general argument about a general authorizing statute to urge that the operation of Anderson Dam cannot give rise to nuisance liability. This argument fails for the reasons previously stated by Judge Kirwan.
SCVWD’s motion for summary adjudication of the dangerous condition and nuisance claims fails as well, without the need to address its arguments concerning natural conditional immunity as to Coyote Creek.
VI. CONCLUSION
For the reasons discussed above, the Court DENIES SCVWD’s motion for summary judgment/adjudication in its entirety.[13]
The Court will prepare the order.
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LAW AND MOTION HEARING PROCEDURES
The Court rescinded, effective June 21, 2021, all prior general orders restricting courthouse access. Remote appearances for complex civil matters are still permitted, but are no longer mandatory. (See General Order Rescinding Portion of May 6, 2020 General Order Concerning Complex Civil Actions, available at
GeneralOrderRescindingPortionof050621GeneralOrderConcerningComplexCivilActions.pdf.) If a party gives notice that a tentative ruling will be contested, any party seeking to participate in the hearing remotely should contact CourtCall.
Public access to hearings is available on a listen-only line by calling 888-808-6929 (access code 2752612).
State and local rules prohibit recording of court proceedings without a court order. These rules apply while in court and also while participating in a hearing remotely or listening in on a public access line. No court order has been issued which would allow recording of any portion of this motion calendar.
The court does not provide court reporters for proceedings in the complex civil litigation departments. Any party wishing to retain a court reporter to report a hearing may do so in compliance with this Court’s October 13, 2020 Policy Regarding Privately Retained Court Reporters. The court reporter may participate remotely and need not be present in the courtroom.
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Calendar Line 5
Case Name: Liliana Canela v. Costco Wholesale Corporation, et al.
Case No.: 2013-1-CV-248813
This action pursuant to the Private Attorneys General Act (PAGA) alleges that defendant Costco Wholesale Corporation failed to provide suitable seating to employees working as “greeters” and “exit checkers” at Costco locations.
Costco moves for summary adjudication of the claims concerning exit checkers. It urges that Plaintiff waived these claims in 2018, as the parties were preparing to try the case in federal court. Plaintiff opposes Costco’s motion. As discussed below, the Court DENIES summary adjudication.
I. BACKGROUND
This action was initially filed in 2013, as a putative “class action and representative action” under PAGA. Then, as now, Plaintiff alleged that Costco failed to provide suitable seating under the applicable wage order with respect to employees who worked as “greeters” and as “exit checkers” stationed near the entrances and exits, respectively, of Costco locations. Costco removed the case to federal court shortly after it was filed.
About a year later, Canela notified the district court that she no longer planned to seek class status. Canela suggested that the district court lacked jurisdiction because her PAGA claim was always a “representative action” and could have never been brought as a “class action” under [the Class Action Fairness Act (CAFA)]. In light of Canela’s submission, the district court ordered the parties to brief the issue of its jurisdiction. Because Canela had denominated her lawsuit as a “class action” and had sought class status on her PAGA claim as of the time the case was removed from state court, the district court concluded that it had retained CAFA jurisdiction even though Canela had later decided not to pursue class certification.
Costco then moved for partial summary judgment, contending that without a certified class, Canela lacked Article III standing to represent absent aggrieved employees and could not represent absent “aggrieved employees” under Federal Rule of Civil Procedure 23. The district court denied Costco’s motion.
(Canela v. Costco Wholesale Corp. (9th Cir. 2020) 971 F.3d 845, 848 (Canela).)
Costco moved to certify an interlocutory appeal, which was granted. On appeal, the Ninth Circuit held that a PAGA claim cannot be brought as a class action under CAFA, and there was no federal subject matter jurisdiction under CAFA or otherwise. It ordered the district court to remand the action to state court. (Canela, supra, 971 F.3d 845.)
Before the appeal was certified, the parties had engaged in discovery and were preparing for trial before the district court. In April 2018, one month before the fact discovery cutoff and five months before the scheduled trial, Plaintiff’s counsel apparently stated that Plaintiff would not be pursuing claims as to the exit checkers at trial.[14] But a trial in federal court never occurred: the scheduled trial was vacated, and the action was ultimately remanded to this Court in 2020.
On April 28, 2021, Plaintiff filed the operative First Amended Complaint (FAC) in this Court, pursuant to a stipulated order. The FAC re-asserts suitable seating claims on behalf of both greeters and exit checkers, but directly as representative claims under PAGA rather than as a putative class action. A stipulated order filed on February 24, 2021 provides that the parties may use discovery procured while the action was in federal court here in state court, and allowed them to conduct additional fact discovery until September 15, 2021.
On October 28, 2021, Costco filed the instant motion for summary adjudication of the claims regarding exit checkers. According to Costco, Plaintiff waived these claims in 2018 and has not filed an additional notice with the Labor and Workforce Development Agency (LWDA) as to any new “exit checker” claims.
II. LEGAL STANDARD
“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; see also Code Civ. Proc., § 437c, subd. (p)(2).)
This standard provides for a shifting burden of production; that is, the burden to make a prima facie showing of evidence sufficient to support the position of the party in question. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850–851 (Aguilar).) The burden of persuasion remains with the moving party and is shaped by the ultimate burden of proof at trial. (Ibid.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Ibid.) The opposing party must produce substantial responsive evidence that would support such a finding; evidence that gives rise to no more than speculation is insufficient. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162–163.)
The traditional method for a defendant to meet its burden on summary judgment is by “negat[ing] a necessary element of the plaintiff’s case” or establishing a defense with its own evidence. (Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) The defendant may also demonstrate that an essential element of plaintiff’s claim cannot be established by “present[ing] evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Aguilar, supra, 25 Cal.4th at p. 855.)
On summary judgment, “the moving party’s declarations must be strictly construed and the opposing party’s declaration liberally construed.” (Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717 (Hepp); see also Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64 [the evidence is viewed in the light most favorable to the opposing plaintiff; the court must “liberally construe plaintiff’s evidentiary submissions and strictly scrutinize defendant’s own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff’s favor”].) Summary judgment may not be granted by the court based on inferences reasonably deducible from the papers submitted, if such inferences are contradicted by others which raise a triable issue of fact. (Hepp, supra, 86 Cal.App.3d at pp. 717–718.)
Even if there are some triable issues in the case, the court has the power to summarily adjudicate that one or more causes of action has no merit, there is no affirmative defense to one or more causes of action, there is no merit to a claim for punitive damages (Civil Code section 3294), or one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. (Code Civ. Proc., § 437c, subd. (f)(1).)
III. ANALYSIS
All case law on the subject of waiver is unequivocal: “ “Waiver always rests upon intent. Waiver is the intentional relinquishment of a known right after knowledge of the facts. [Citations]. The burden, moreover, is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and ‘doubtful cases will be decided against a waiver.’ ” (City of Ukiah v. Fones (1966) 64 Cal. 2d 104, 107-108 …; Grubb & Ellis Co. v. Bello (1993) 19 Cal. App. 4th 231, 236 ….)
(DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 60.) “Whether a waiver has been established is measured by the circumstances existing at the time the waiver is exercised.” (Kec v. Superior Court (2020) 51 Cal.App.5th 972, 980.) Counsel may effect a waiver on a client’s behalf through statements made during litigation. (See Chamberlain Co. v. Allis-Chalmers Mfg. Co. (1946) 74 Cal.App.2d 941, 945–946 [counsel’s statement that defendant was not asserting a certain position waived any right to pursue that contention as a defense].)
Here, the evidence regarding the scope of Plaintiff’s waiver is disputed. Even setting aside any potential evidentiary issues with the email introduced by Costco (discussed in footnote 1 above), Plaintiff’s counsel declares that his reason for stating he would not purse the exit checker claims in federal court was not, as characterized by opposing counsel’s email, because it was “a bridge too far,” but was instead a “purely tactical” decision “based on [his] assessment of that trial judge.” Thus, there is a triable issue of fact as to whether Plaintiff intended to waive any right to try the exit checker claims going forward, or whether she merely intended to waive any right to try these claims to the court overseeing the claims at the time. Where “[t]he evidence is in conflict regarding [the] intentions” of the party in question, “the extent of [that party’s] waiver [is] not resolvable as a matter of law.” (Old Republic Ins. Co. v. Fsr Brokerage (2000) 80 Cal.App.4th 666, 679.)
Because the scope of Plaintiff’s waiver is disputed, the Court need not address Costco’s argument about the asserted need for Plaintiff to file a new PAGA notice concerning the exit checker claims.
IV. CONCLUSION
Costco’s motion for summary adjudication is DENIED.
The Court will prepare the order.
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Case Name: Shawn Brown v. Security Industry Specialists, Inc., et al.
Case No.: 21CV380292
This is an action under the Private Attorneys General Act (PAGA), alleging Defendant Security Industry Specialists, Inc. (SIS): (a) failed to provide duty free meal periods and failed to provide second meal periods; (b) failed to maintain accurate records; (c) failed to reimburse employees for business expenses; (d) paid final wages by issuing pay cards; (e) failed to pay all final wages owed as a result of fees incurred with the use of pay cards; and (f) failed to provide accurate wage statements.
SIS demurs to and/or moves to strike the allegations concerning the meal period and recordkeeping violations (alleged violations (a) and (b) above), urging that Plaintiff alleges only legal theories and not facts concerning these violations and, relatedly, that Plaintiff alleges PAGA exhaustion in a conclusory manner, and any PAGA notice that included the same information as the Complaint as to these theories would be inadequate.
“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872 [identities of allegedly negligent employees need not be provided to state a claim against school district].) With limited exceptions not applicable here, the rules of pleading require no more than “general allegation[s] of ultimate fact.” (Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1548 [allegation that asserted nuisance “affect[s] a substantial number of people at the same time” suffices to state a claim although it mirrors the element of the claim].) “The pleading is adequate so long as it apprises the defendant of the factual basis for the claim.” (Id. at p. 1549.)
Here, Plaintiff alleges the ultimate facts in support of his claim. (See Rojas-Cifuentes v. Superior Court (2020) 58 Cal.App.5th 1051, 1059 [“Rojas’s allegations here thus included an ultimate fact (American Modular provided workers with wage statements that inaccurately listed hours worked, wages earned, and applicable hourly or piece rates) and supportive evidentiary facts (American Modular’s inaccurate wage statements resulted from [its] failure to pay workers for all hours worked and rest and meal periods missed—and this failure to pay, in turn, resulted from [its] failure to compensate for, among other things, time spent ‘donning and doffing’ ”].)
Similarly, administrative exhaustion may be alleged in general terms. (See Wong v. Regents of University of California (1971) 15 Cal.App.3d 823, 829 [rejecting contention that petition for mandate was defective for failure to allege administrative exhaustion; “The statement … ‘That petitioner has exhausted his administrative remedies’ is a sufficient allegation.”].) Plaintiff has done so here. (See also USS-Posco Industries v. Case (2016) 244 Cal.App.4th 197, 222 [PAGA claim would be subject to demurrer or motion to strike where complaint “does not allege compliance with or even reference PAGA’s exhaustion requirements (§ 2699.3), [and] does not specify which alleged Labor Code violations underlie the supposed PAGA claim”].)
For these reasons, the Court OVERRULES SIS’s demurrer and DENIES its alternative motion to strike.
The Court will prepare the order.
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LAW AND MOTION HEARING PROCEDURES
The Court rescinded, effective June 21, 2021, all prior general orders restricting courthouse access. Remote appearances for complex civil matters are still permitted, but are no longer mandatory. (See General Order Rescinding Portion of May 6, 2020 General Order Concerning Complex Civil Actions, available at
RescindingPortionof050621GeneralOrderConcerningComplexCivilActions.pdf.) If a party gives notice that a tentative ruling will be contested, any party seeking to participate in the hearing remotely should contact CourtCall.
Public access to hearings is available on a listen-only line by calling 888-808-6929 (access code 2752612).
State and local rules prohibit recording of court proceedings without a court order. These rules apply while in court and also while participating in a hearing remotely or listening in on a public access line. No court order has been issued which would allow recording of any portion of this motion calendar.
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The court does not provide court reporters for proceedings in the complex civil litigation departments. Any party wishing to retain a court reporter to report a hearing may do so in compliance with this Court’s October 13, 2020 Policy Regarding Privately Retained Court Reporters. The court reporter may participate remotely and need not be present in the courtroom.
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[1] This is less than the $9,716.18 estimated at preliminary approval because the class size increased from 64 to 72. But the pay periods at issue remained relatively consistent, so the settlement’s escalation clause was not triggered.
[2] Former defendant Edward Lim was dismissed from the action without prejudice pending approval of the parties’ settlement, pursuant to a stipulated order entered on August 13, 2021.
[3] A declaration by CWR’s Executive Director clarifies that CWR is a 501(c)(3) nonprofit that partners with Legal Aid at Work to offer legal consultations for low-wage workers.
[4] Although no FLSA claim is alleged in this action and the Court does not approve a settlement of any such claim, the scope of the release is appropriate. (See Rangel v. PLS Check Cashers of California, Inc. (2018) 899 F.3d 1106, 1110-1111.)
[5] Specifically, the Amargo, Aguilera, Falconio, Espitia, Lieberman, and Hegland Plaintiffs filed an opposition to SCVWD’s motion. The White Plaintiffs and, separately, the Nguyen Plaintiffs move to join in the opposition, and the Court GRANTS their joinders.
[6] The allegations of the Omnibus Complaint are summarized in more detail in the Court’s June 4, 2019 order addressing the last round of challenges to the pleadings. By stating these allegations as background, the Court is not purporting to find these allegations to be true undisputed facts.
[7] This characterization appears to have been accepted by the federal court that remanded this action to this Court in 2020. (See White v. Santa Clara Valley Water Dist. (N.D. Cal. Nov. 9, 2020, No. 20-cv-04242-VKD) 2020 U.S.Dist.LEXIS 209624, at *27 “[I]inasmuch as the District’s position is premised on the assertion that the Dam is a FERC-licensed facility, its arguments appear to be a nonstarter. Here, plaintiffs point out that what the District presents as a FERC ‘license’ actually appears to be an order granting an exemption from the FPA, including licensing, with respect to the Dam.”], *29 [SCVWD did not dispute this characterization].)
[8] Here, SCVWD introduces evidence that Anderson was originally constructed in 1950 as a water supply facility only. (SS & PRSS, no. 5 [undisputed that Anderson was originally constructed as a water supply facility only].) But Plaintiffs present evidence that SCVWD has assumed control of Anderson and has long operated it pursuant to its dual role as a flood control district. (Pls.’ Sep. State., nos. 1, 60–68.) For purposes of this order, the Court assumes Anderson is now a flood control project as well as a water storage project.
[9] Oroville’s summary of Belair’s holding is somewhat different:
[Belair] concluded that despite heavy rainstorms contributing to the flooding, the levee was still a substantial concurring cause of the damages because “the improvement failed to function as it was intended.” This “failed to function as intended” concept was relevant in Belair only to eliminate natural flooding as a cause of the damage. … Belair did not announce a rule triggering liability in all inverse condemnation cases based solely on the existence of any conceivable causal connection between a public improvement and private property damage.
(Oroville, supra, 7 Cal.5th at p. 1109, italics added.) But Oroville was not a flood control case and distinguished Belair on this basis, so it is not clear what it meant by “natural flooding” here.
[10] Oroville explained that “[a]t one point, courts had limited inverse condemnation only to [sic] circumstances where a private party would be liable to the property owner for the injury. We subsequently clarified that ultimately, the just compensation clause is the ‘distinct constitutional source’ that underlies a public entity’s responsibility to compensate owners for those damages to private property resulting from the construction of a public improvement. Common law doctrines may offer a useful analogy, but the roots of inverse condemnation liability lie in constitutional terrain rather than the common law.” (Oroville, supra, 7 Cal.5th at pp. 1102–1103, citations omitted; see also Arreola, supra, 99 Cal.App.4th at pp. 738–739 [explaining that Belair replaced “Archer exception” immunity from inverse condemnation liability in cases where private water law analysis permitted the challenged conduct with a rule of reasonableness]; Locklin, supra, 7 Cal.4th at pp. 365–366 [Belair signaled the “demise” of the Archer exception, which “survived only vestigally in the limitation of inverse condemnation liability for public flood control projects in natural watercourses to damage resulting from a public entity’s unreasonable conduct”].)
[11] SVWD does not specifically address a theory raised in the Omnibus Complaint arising from its alleged ownership of a parcel near Rocksprings Park, but neither do Plaintiffs, so it is not clear if Plaintiffs continue to pursue this theory. (See Omnibus Complaint, ¶ 151.)
[12] Plaintiffs do not claim that Coyote Reservoir had anything to do with the flooding at issue.
[13] The Court need not rule on either party’s objections to evidence, as they are immaterial to its disposition of SCVWD’s motion. (See Code Civ. Proc., § 437c, subd. (q) [“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.”].)
[14] To establish this fact, Costco’s counsel Emily Schroeder attaches an email from Costco’s counsel David Kadue asserting that Plaintiff’s counsel had “confirmed” during a meet and confer conversation that he was not going to pursue such claims. Plaintiff admits that “Plaintiff’s counsel did advise Defense counsel in 2018 that he would not proceed to trial before Judge Freeman with exit checkers claims.” (Def.’s Sep. State. & Pl.’s Resp. no. 5.)
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