SoCal Self Storage-Loma Linda v. Clark CA4/1 ( 2016 )

Filed 1/28/16 SoCal Self Storage-Loma Linda v. Clark CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SOCAL SELF STORAGE-LOMA LINDA, D068697
LP,
Plaintiff and Appellant,
(Super. Ct. No. CIVDS1200111)
v.
RAYMOND J. CLARK et al.,
Defendants and Respondents.
_____________________________________
SOCAL SELF STORAGE-LOMA LINDA, D068698
LP,
Plaintiff and Appellant,
(Super. Ct. No. CIVDS1200111)
v.
LOMA LINDA UNIVERSITY,
Defendant and Respondent.
CONSOLIDATED APPEALS from judgments of the Superior Court of San
Bernardino County, John M. Pacheco, Judge. Judgments affirmed.
DiJulio Law Group and R. David DiJulio, Daniel A. Cantor for Plaintiff and
Appellant.
Yoka & Smith and Stephen H. Smith, Peter W. Felchlin, Lauren A. Lofton for
Defendants and Respondents Raymond J. Clark, Carol A. Clark and Clark Family
Holdings, LLC.
Clayson, Mann, Yaeger & Hansen and Roland C. Bainer, Emily C. Meeson for
Defendant and Respondent Loma Linda University.
Plaintiff and appellant SoCal Self Storage-Loma Linda, LP (SoCal) appeals from
summary judgments in favor of defendants and respondents Clark Family Holdings, LLC
(Clark)1 and Loma Linda University (University) on SoCal's second amended complaint
for negligence, nuisance, trespass and conversion seeking damages from mud, rocks,
water and debris coming onto SoCal's storage facility after a large storm occurred in
December 2010. The trial court granted summary judgments in Clark's and University's
favor on several grounds, including that neither Clark nor University breached any duty
or reasonably foresaw SoCal's damages, they did not cause SoCal's damages as the
damages were due to an overflowed flood control basin and failure of SoCal's masonry
wall, and/or the water flowing from Clark's or University's buildings was not a substantial
factor in SoCal's damages.
1 The summary judgment in Clark's favor was also granted in favor of individual
defendants Raymond J. Clark and Carol A. Clark. SoCal has elected not to pursue its
appeal of the judgment as to the individual defendants.
2
Asserting the trial court erred by not applying Keys v. Romley (1966) 64 Cal. 2d
396 (Keys), SoCal contends it presented undisputed evidence that Clark and University
diverted drainage from its natural flow onto SoCal's property, and neither defendant
presented evidence that SoCal's conduct was unreasonable, precluding summary
adjudication on its negligence cause of action. SoCal makes similar arguments as to its
causes of action for nuisance, trespass, and conversion. SoCal alternatively contends that
for purposes of the Keys analysis, it raised triable issues of material fact as to whether the
harms it suffered were foreseeable, whether defendants' conduct was unreasonable, and
whether its own conduct was reasonable, precluding summary judgment.
We are unpersuaded by SoCal's arguments. Because the summary judgments were
properly granted, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
Background
Clark and University both own parcels of property within the Mountain View
Plaza Shopping Center (shopping center) in Loma Linda, California (City). Clark has
owned its parcel (the Clark property) since about 2006-2007; Raymond and Carol Clark
originally leased the Clark property in late 1998, then purchased it in 2002, subsequently
transferring it to Clark. The Clark property consists of a food market and a number of
parking spaces immediately in front of the market. The improvements preexisted Clark's
2 We state the undisputed facts from the parties' separate statements. In its opposing
separate statement, SoCal frequently stated that certain facts were "undisputed, but
materially incomplete." It then referred to its own opposing evidence and declarations,
much of which, as we discuss below, was excluded for purposes of Clark's motion.
3
ownership; Clark did not build, develop or grade its property. University has owned its
parcels since 1996. The shopping center contains other buildings and an asphalt parking
surface that slopes predominantly to the north and to a lesser degree to the east.
Since 1985, SoCal has operated a storage facility (at times SoCal's property)
located on Mountain View Avenue, consisting of individual storage units with metal roll-
up doors, an office and a small residence, all on asphalt. Before December 22, 2010, the
storage facility's perimeter included masonry structures, masonry wall sections and a
motorized, rolling metal gate at the main entrance. Drainage exited through a masonry
wall section in the storage facility's northwest corner. The storage facility's southern
boundary abuts the shopping center's asphalt parking. North and east of the storage
facility are railroad tracks, with a flood control channel further north. In between the
storage facility and the Clark property is a parcel of land that is not owned by Clark or its
members.
In December 2010, San Bernardino and Riverside Counties experienced about five
days of significant rainfall. The rainwater in the area of the shopping center dislodged a
tremendous amount of mud, rocks, and debris in the hills to the south, some of which was
carried by fallen rain to the Scott Canyon Basin (the basin), which was built to collect
seasonal rainwater. The basin is not owned or maintained by Clark or University. On
December 22, 2010, the basin failed, causing much of the collected water, mud, rocks
and debris to overflow its banks and run from the basin onto Mountain View Avenue for
several blocks. The flow entered the shopping center at Mountain View Avenue and at a
City access road to the west of SoCal's property, traveled over Clark's and University's
4
properties, then entered the storage facility's main entrance, filling its northwest areas
with mud, rocks, water and debris several feet high. In addition, two sections of a steep
slope built by City along Mountain View Avenue failed, sending a substantial amount of
mud, dirt and debris into the access road, which blocked the storage facility's drainage. A
storm drain installed by City at the end of the access road also clogged and failed to
function. The storage facility continued to fill with water, mud, dirt and debris until one
of its masonry walls collapsed, triggering a massive surge of mud, water and other debris
out of the storage facility and into the access road that caused significant damage to the
structure and contents of the storage units.
During years of ownership, the flow of water on the Clark property has typically
travelled northbound over the adjacent property of others in the shopping center, and
ultimately into or around SoCal's property before making its way to the nearby flood
channel. The water that inundated the Clark property in December 2010 did not originate
from its property, but merely passed through it on its way to the channel. Since 1998, the
Clark property has never been inundated by water, mud, rocks and/or debris in a manner
similar to what had occurred in December 2010; Clark had no knowledge of any water
flow issues or similar flooding and it never experienced any significant issues with
surface water flow or flooding.
Similarly, University's parcel has not been inundated by water, mud, rock and/or
debris since University's acquisition of it in 1996.
5
SoCal's Lawsuit and Defendants' Motions for Summary Judgment/Adjudication
SoCal sued Clark, University and others for damages stemming from the
December 2010 rainfall and flooding. It eventually filed a second amended complaint
alleging causes of action against Clark and University for negligence, nuisance, trespass
and conversion.
University moved for summary judgment or alternatively summary adjudication of
issues. As to the negligence cause of action, it argued Keys, supra, 64 Cal. 2d 396 was
inapplicable because the damage to SoCal's property was caused by floodwaters and not
surface waters, and that the matter was governed by the so-called "common enemy" rule,
under which an owner could protect his land by diverting floodwater over another's land,
as long as that owner did not unreasonably benefit at the expense of adjoining
landowners. It argued Keys likewise did not apply to stream water or water collected in a
wash basin. University argued it took no action to unreasonably benefit itself at SoCal's
expense, compelling a finding that it was not negligent. With respect to nuisance,
University argued SoCal could not show it created a condition that was either harmful to
health, obstructed the use of SoCal's property, or interfered with SoCal's use and
enjoyment of its property. As to trespass, University argued it did not own or maintain
the failed flood control basin from which the damaging flow came, and SoCal could not
establish it caused water, mud, debris to enter SoCal's property. As to conversion,
University argued SoCal could not establish it intentionally and substantially interfered
with SoCal's personal property. As to all of the causes of action, University further
argued there was nothing it could do to prevent the floodwaters from flowing to the
6
lowest point onto SoCal's property, and its failure to take action did not contribute to, and
could not be a substantial factor in, causing SoCal's harm.
Clark also moved for summary judgment or alternatively summary adjudication of
issues. It argued that regardless of whether the flow from the rainstorm was
characterized as a flood or surface water, it had no liability because it did not engage in
any conduct to cause SoCal's injuries. Specifically, Clark asserted, via a declaration of
Raymond Clark, it did nothing to cause the water, mud, rocks and debris to enter SoCal's
property, nor did it redirect the water onto SoCal's property or cause the errant flow of
water, mud, rocks and debris. Additionally, Clark asserted that at no time before
December 2010 had it altered or improved its parcel including by repaving or grading the
parking lot or changing or improving upon the drainage system in place so as to affect the
manner in which water flowed off its property. Clark further argued the damage to
SoCal's property was not reasonably foreseeable, presenting SoCal's discovery responses
that in the 26 years SoCal had owed the facility, there had never been flooding to the
extent of what had occurred in December 2010, nor was SoCal aware of water flow
issues or flooding before its ownership of the facility. Clark finally argued that given the
lack of foreseeability, it owed no duty to SoCal, but also given the lack of any detrimental
conduct on its part, it did not cause or contribute to SoCal's damages. For these reasons,
Clark argued summary judgment or adjudication was warranted on SoCal's causes of
action for trespass, nuisance, and conversion.
SoCal opposed the motions, making almost identical arguments and referring to
Clark and University collectively in terms of their alleged interference with the area's
7
natural drainage. SoCal conceded that Clark did not build, develop or grade its property,
nor did it divert, attempt to divert, or in any way alter the flow of the water, mud, rocks
and debris that entered its property. SoCal likewise conceded that University did not
divert or attempt to divert the water, mud, rocks, debris away from its property. Rather,
SoCal argued the defendants had interfered with the area's natural northeastward drainage
in three ways: the preexisting buildings on the shopping center's east side created a "wall"
blocking flow; the buildings created an "impenetrable barrier" in the east that stepped
down to the north; and Clark and University collected rainfall on their buildings via roof
drains that discharged water into the shopping center's parking area, using "uncontrolled
sheet flow" to discharge the water onto SoCal's property. SoCal argued that despite
public warnings to sandbag, the defendants "took no action to control their discharge,"
but instead discharged the mud, rocks, water and debris onto SoCal's property, rendering
them either liable as a matter of law under Keys, supra, 64 Cal. 2d 396, or presenting a
fact issue for the jury.
Presenting supporting declarations from SoCal's general partner and manager
Dennis Geiler, SoCal maintained that Clark's and University's conduct was unreasonable
for purposes of applying Keys because they either did not pay to install inlets (Clark) or
install more inlets (University), and both had two days notice that the storm was
approaching but did not sandbag their property, knowing that water entering it would
discharge onto SoCal's property. SoCal also submitted in opposition declarations of
geologist Cathrene Glick, who likewise stated that Clark and University used
uncontrolled sheet flow to discharge water from the shopping center parking areas to
8
SoCal's property, and also stated that the use of inlets and sandbags would have
minimized SoCal's damages. Glick stated that a reasonable stormwater pollution
prevention plan would have included sandbags or a similar barrier system. In response to
University's motion, SoCal supplemented Glick's declaration with a runoff evaluation
report addressing the efficacy of sandbags.
In reply, Clark objected to the Geiler and Glick declarations. In part, it asserted
that because Geiler was merely a manager who worked at SoCal's facility for several
years, he lacked sufficient knowledge to give expert scientific opinions. Clark also
pointed out that Glick had not performed any water flow testing to determine the
direction the water would flow during the storm if sandbags or other proactive measures
had been taken, and that her opinions lacked foundation and were speculative,
inadmissible and improper. University did not object to SoCal's opposing evidence.
The Court Grants Summary Judgments in favor of Clark and University
The court ruled on Clark's motion in December 2013, and on University's several
months later in March 2014. It sustained Clark's evidentiary objections to Geiler's
conclusions concerning the shopping center's drainage systems, uncontrolled sheet flow,
and surface water flow, as well as Glick's conclusions concerning uncontrolled sheet flow
and the effectiveness of inlets and sandbagging. It granted summary judgments in Clark
and University's favor, ruling neither Clark nor University breached any duty or
reasonably foresaw SoCal's damages; they did not intentionally, negligently, or recklessly
enter SoCal's property or interfere with its use and enjoyment since the mud, rocks and
debris did not originate from Clark or University; they did not dispossess SoCal of its
9
personal property as there was no evidence that the alleged water coming from their
buildings had any substantial factor in creating the failures at the storage facility that
swept the personal property from within the storage units; and they did not cause SoCal's
damages as those damages arose because of the basin overflowing and the breach of
SoCal's masonry wall at the northwest end of its facility. As to Clark, the court also ruled
that the water directed from its building's roof was not a substantial factor in the damages
suffered by SoCal.
SoCal appealed from the ensuing judgments.
DISCUSSION
I. Summary Judgment Principles
"A trial court properly grants a motion for summary judgment where 'all the
papers submitted show that there is no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.' [Citation.] . . . '[W]e take the
facts from the record that was before the trial court when it ruled on that motion.
[Citation.] " 'We review the trial court's decision de novo, considering all the evidence
set forth in the moving and opposing papers except that to which objections were made
and sustained.' " [Citation.] We liberally construe the evidence in support of the party
opposing summary judgment and resolve doubts concerning the evidence in favor of that
party.' " (Hartford Cas. Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal. 4th 277, 286.)
A defendant moving for summary judgment "must show that the plaintiff has not
established, and reasonably cannot be expected to establish, one or more elements of the
cause of action in question." (Patterson v. Domino's Pizza, LLC (2014) 60 Cal. 4th 474,
10
499-500.) If the defendant carries this burden, the opposing party is then subjected to a
burden of production to make a prima facie showing of the existence of a triable issue of
material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 849.) "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." (Id. at p. 850.)
II. Keys and the Rule of Reasonableness
Because the parties' arguments require an understanding of the rule stated in Keys,
supra, 64 Cal. 2d 396, we review that case and later developments. In Keys, the defendant
leased property that abutted the plaintiffs' property, which the plaintiffs used for a store.
(Id. at pp. 398-399.) The defendant began constructing an ice rink and paved the area
around the building with asphalt, which entailed grading and leveling the land, as well as
placing downspouts so that rainwater was directed onto the paved area alongside the rink,
then onto plaintiffs' property. (Id. at p. 399.) After the plaintiffs' property was flooded
by surface waters flowing from defendant's land, they sued defendant and the lessors, and
the trial court awarded damages as well as an injunction restraining the defendant from
further damaging their property. (Ibid.) In reaching this award, the trial court found the
defendant had "gathered surface waters on his land by artificial means and discharged
said waters onto the lower land of plaintiffs in a greater volume and in a different manner
than had occurred prior to the construction on his property." (Id. at p. 400.)
11
On appeal, the California Supreme Court discussed the various doctrines that had
evolved to govern surface waters.3 (Keys, supra, 64 Cal.2d at pp. 400-405.) In so doing,
it explained the difference between surface water and floodwater: "Water diffused over
the surface of land, or contained in depressions therein, and resulting from rain [or] snow
. . . is known as 'surface water.' It is thus distinguishable from water flowing in a fixed
channel, so as to constitute a watercourse . . . . The extraordinary overflow of rivers and
streams is known as 'flood water.' " (Id. at p. 400.) The court explained that in
California, as to both urban and rural areas, the rights and liabilities of adjoining
landowners with respect to flow of surface waters had generally been determined by the
rule of civil law, under which the owner of an upper estate was entitled to discharge
surface water as the water naturally flows, and was liable for any damage he caused to
adjacent property by the discharge of water in an unnatural manner. (Id. at pp. 406, 408.)
Though this was the case, the court found the rule could be unnecessarily rigid and unjust
in developed areas (id. at p. 407), and that principles of tort liability were appropriately
applied such that "[n]o party, whether an upper or a lower landowner, may act arbitrarily
3 One such rule was the common enemy rule. (Keys, supra, 64 Cal.2d at pp. 400-
402.) The court explained that the common enemy rule, "[s]tated in its extreme form, . . .
holds that as an incident to the use of his own property, each landowner has an
unqualified right, by operations on his own land, to fend off surface waters as he sees fit
without being required to take into account the consequences to other landowners, who
have the right to protect themselves as best they can." (Id. at p. 400.) But the court stated
that, apparently with respect to surface waters, "the common enemy rule . . . has never
been followed in California, and, in fact, was summarily rejected nearly a century
ago . . . ." (Id. at p. 406.)
12
and unreasonably in his relations with other landowners and still be immunized from all
liability." (Id. at pp. 407-409.)4
The Keys court thus modified the civil law rule to establish a rule turning on the
reasonableness of the landowners' conduct: "It is therefore incumbent upon every person
to take reasonable care in using his property to avoid injury to adjacent property through
the flow of surface waters. Failure to exercise reasonable care may result in liability by
an upper to a lower landowner. It is equally the duty of any person threatened with injury
to his property by the flow of surface waters to take reasonable precautions to avoid or
reduce any actual or potential injury. [¶] If the actions of both the upper and lower
landowners are reasonable, necessary, and generally in accord with the foregoing, then
the injury must necessarily be borne by the upper landowner who changes a natural
system of drainage, in accordance with our traditional civil law rule. [¶] . . . Our rule
has the advantage of predictability, in that responsibility for diversion of surface waters is
fixed, all things being relatively equal." (Keys, supra, 64 Cal.2d at pp. 408-409.) Keys
made clear that "the question is not one of strict negligence accountability, although . . .
'an owner should not escape liability when he is negligent.' The question is
reasonableness of conduct." (Keys, at p. 409.)
4 In reaching this conclusion the Keys court stated: "As pointed out by Kinyon and
McClure in their article [Interferences With Surface Waters (1940)] 24 Minnesota Law
Review 891, at page 936, 'There is no question, however, that one's liability for
interfering with surface waters, when incurred, is a tort liability. An unjustified invasion
of a possessor's interest in the use and enjoyment of his land through the medium of
surface waters, or any other type of waters, is as much a tort as a trespass or a private
nuisance produced by smoke or smells.' " (Keys, supra, 64 Cal.2d at pp. 407-408.)
13
The court in Keys further explained: "The issue of reasonableness becomes a
question of fact to be determined in each case upon a consideration of all the relevant
circumstances, including such factors as the amount of harm caused, the foreseeability of
the harm which results, the purpose or motive with which the possessor acted, and all
other relevant matter. [Citation.] It is properly a consideration in land development
problems whether the utility of the possessor's use of his land outweighs the gravity of
the harm which results from his alteration of the flow of surface waters. [Citation.] The
gravity of harm is its seriousness from an objective viewpoint, while the utility of
conduct is its meritoriousness from the same viewpoint. [Citation.] If the weight is on
the side of him who alters the natural watercourse, then he has acted reasonably and
without liability; if the harm to the lower landowner is unreasonably severe, then the
economic costs incident to the expulsion of surface waters must be borne by the upper
owner whose development caused the damage. If the facts should indicate both parties
conducted themselves reasonably, then courts are bound by our well-settled civil law
rule." (Keys, supra, 64 Cal.2d at p. 410.)
In Ektelon v. City of San Diego (1988) 200 Cal. App. 3d 804, 810, a panel of this
court held that Keys "postulated a broad rule of reasonableness to be applied to all factual
situations" (id. at p. 808) and thus "an upstream landowner has no absolute right to
protect his land from floodwaters by constructing structures which increase the
downstream flow of water into its natural watercourse, but is instead governed by the
ordinary principles of negligence." (Id. at p. 810.) Ektelon relied on Linvill v. Perello
(1987) 189 Cal. App. 3d 195, in which the court reversed a summary judgment and held a
14
property owner was required to act reasonably under all circumstances when building
barriers to protect his property from damage by floodwaters. (Ektelon, 200 Cal.App.3d at
pp. 808-809, citing Linvill, at pp. 197, 198.) In Weaver v. Bishop (1988) 206 Cal. App. 3d
1351, the appellate court rejected application of the common enemy doctrine applicable
to floodwaters in favor of a rule of reasonableness: "[T]he nearly unanimous trend has
been away from per se rules based on categorical judgments of 'generally perceived
reasonableness,' [which underlies the common enemy rule,] and toward fact-based
determinations of reasonableness in the particular circumstances of each case." (Id. at p.
1357.) The Weaver court pointed out "it is now held that the 'common enemy' doctrine
itself is qualified by a reasonableness requirement . . . ." (Ibid., citing Linvill, at p. 199
[applying Keys to the diversion of floodwaters].) In Belair v. Riverside County Flood
Control Dist. (1988) 47 Cal. 3d 550, the California Supreme Court acknowledged the
Linvill and Ektelon application of Keys to situations involving flood and stream waters in
actions between private landowners. (Belair, at p. 567, fn. 9.)
In Locklin v. City of Lafayette (1994) 7 Cal. 4th 327 (Locklin), the California
Supreme Court expanded the application of the Keys reasonableness standard to
situations involving a natural watercourse. (Locklin, at p. 337.)5 It began its discussion
5 Locklin dealt in part with the immunity provided by the so-called natural
watercourse rule, which privileged certain landowner conduct to discharge water into a
natural watercourse or make improvements in stream beds to improve drainage. (See
Pacific Bell v. City of San Diego (2000) 81 Cal. App. 4th 596, 612, fn. 9.) Locklin defined
a natural watercourse as " 'a channel with defined bed and banks made and habitually
used by water passing down as a collected body or stream in those seasons of the year
and at those times when the streams in the region are accustomed to flow.' " (Locklin,
15
of the rule by acknowledging that "[t]he modern rule governing landowner liability for
surface water runoff and drainage is no longer simply a rule of property law . . . . Today
a landowner's conduct in using or altering the property in a manner which affects the
discharge of surface waters onto adjacent property is subject to a test of reasonableness."
(Id. at p. 351.) In reaching its decision, Locklin agreed with Ektelon v. City of San Diego,
supra, 200 Cal. App. 3d 804, Weaver v. Bishop, supra, 206 Cal. App. 3d 1351, and other
courts that had held the Keys rule "applicable to all conduct by landowners in their
disposition of surface water runoff whether the waters are discharged onto the land of an
adjoining owner or into a natural watercourse . . . . " (Locklin, 7 Cal.4th at pp. 354-355,
357.) The California Supreme Court also acknowledged its past recognition that the Keys
rule of reasonableness had been applied by the courts to actions involving private
landowners' treatment of flood and stream waters. (Id. at p. 354, fn. 16, citing Belair v.
Riverside County Flood Control Dist., supra, 47 Cal.3d at pp. 567-568, fn. 8.)
Locklin held that "[w]hen alterations or improvements on upstream 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, as a property owner,
may be liable for that damage. The test is whether, under all the circumstances, the upper
supra, 7 Cal.4th at p. 345.) It includes a canyon or ravine through which surface water
customarily flows in rainy seasons, as well as " 'all channels through which, in the
existing condition of the country, the water naturally flows,' and may include new
channels created in the course of urban development through which waters presently
flow. [Citation.] Once surface waters have become part of a stream in a watercourse,
they are no longer recognized as surface waters." (Ibid.)
16
landowner's conduct was reasonable. This rule of reasonableness applies to both private
and public landowners . . . ." (Locklin, supra, 7 Cal.4th at p. 337.) The test for
reasonableness "requires consideration of the purpose for which the improvements were
undertaken, the amount of surface water runoff added to the streamflow by the
defendant's improvements in relation to that from development of other parts of the
watershed, and the cost of mitigating measures available to both upper and downstream
owners. Those costs must be balanced against the magnitude of the potential for
downstream damage." (Id. at p. 337.) The key difference between Keys and Locklin is
that under Locklin, when both upper and lower landowners act reasonably in discharging
and receiving surface water in a natural watercourse, the upper landowner is immune and
the lower landowner is liable, as "the natural watercourse rule imposes the burden of
stream-caused damage on the downstream property." (Locklin, at p. 337.)
We conclude that after Locklin, there is no reason to distinguish between the
source, type or nature of waters that flow over or upon a landowner's property in applying
the reasonableness test. The Keys reasonableness standard governs a landowner's tort
liability for damage caused by his or her diversion of waters whether they are discharged
directly onto an adjacent property or into a natural watercourse, as well as a landowner's
liability for efforts to protect his land from floodwaters. (Locklin, supra, 7 Cal.4th at
p. 354, fn. 16; Ektelon, supra, 200 Cal.App.3d at pp. 808-809; accord, Contra Costa
County v. Pinole Point Properties, LLC (2015) 235 Cal. App. 4th 914, 928 (Contra Costa)
[after Locklin there is no valid reason for distinguishing between surface waters and those
17
that flow through a natural watercourse when determining the obligations of
landowners].)
III. Liability in Tort for Negligence and Nuisance
SoCal sued Clark and University in tort for both negligence and nuisance.
" 'Actionable negligence involves a legal duty to use due care, a breach of such legal
duty, and the breach as the proximate or legal cause of the resulting injury.' " (Beacon
Residential Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal. 4th 568,
573.) " 'Duty, being a question of law, is particularly amenable to resolution by summary
judgment.' " (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal. 4th 1148, 1154.) And
foreseeability of harm, which is likewise a question of law, is a " ' "crucial factor" ' in
determining the existence and scope of that duty." (John B. v. Superior Court (2006) 38
Cal. 4th 1177, 1189; Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal. 4th
1138, 1146.) "When negligent conduct interferes with another's free use and enjoyment
of his or her property, nuisance liability arises." (Contra Costa, supra, 235 Cal.App.4th
at p. 934.)
The main premise of SoCal's appellate argument is that Keys is the controlling
authority, and that Keys "is triggered when an upper landowner diverts water from its
natural flow." SoCal argues the trial court erred by failing to apply Keys but rather
confused it with negligence, and because it is "undisputed" that both Clark and University
diverted surface or floodwater from its natural flow and into SoCal's property, the court
erred by failing to address whether Clark and University had diverted water from its
18
natural flow and granting summary judgment.6 More specifically, SoCal argues that the
shopping center contained a drainage system that blocked easterly drainage, and the
system collected or routed drainage down its parking area into SoCal's facility. It
acknowledges that Clark had asserted it had purchased its property with the drainage
systems in place, and that University claimed it did not divert water. SoCal apparently
maintains they were not mere purchasers or passive actors because they engaged in
"affirmative conduct by using their properties, and their drainage systems." SoCal further
points to its expert Glick's testimony that the December 2010 storm was well publicized,
warnings to sandbag were given, and had Clark and University sandbagged, the damage
would have been significantly reduced.
The foregoing discussion (part II ante) demonstrates that the relevant inquiry, for
purposes of assessing the tort liability of Clark and University for water runoff and
drainage, is not merely whether they diverted waters as SoCal maintains, but the
reasonableness of their actions to the extent they did so: " 'Failure to exercise reasonable
care may result in liability by an upper to a lower landowner.' " (Locklin, supra, 7
Cal.4th at p. 352.) On defendants' motions for summary judgment, we therefore evaluate
whether there is evidence for a trier of fact to decide that Clark and University
6 We do not address SoCal's specific arguments about asserted errors committed by
the trial court. The trial court's reasoning is irrelevant as our role on appeal is to review
the parties' summary judgment papers de novo. (Jimenez v. County of Los Angeles
(2005) 130 Cal. App. 4th 133, 140; Reyes v. Kosha (1998) 65 Cal. App. 4th 451, 457-458.)
In any event, the court expressly recognized in ruling on both Clark's and University's
motions that Keys was the relevant test: whether Clark and University acted reasonably in
relation to the management and care of their property with respect to the drainage of
water across it.
19
unreasonably altered or used their property in a manner that affected the discharge of
water onto SoCal's property. (See id. at p. 351; Keys, supra, 64 Cal.2d at pp. 409-410;
Gdowski v. Louie (2000) 84 Cal. App. 4th 1395, 1400, 1403.) Applying this standard on
our de novo review compels us to reject SoCal's arguments.
A. There is No Evidence SoCal's Damage Was the Result of any Unreasonable Action or
Inaction by Clark with Respect to the Flow of Waters on Clark's Property
As indicated above, for purposes of Clark's motion, the court excluded SoCal's
opposing opinions of Geiler and Glick as to the defendants' interference with the natural
drainage, the creation of a drainage system, the asserted use of uncontrolled sheet flow,
the flow and impact of water due to heavy rains, the use of a stormwater pollution
prevention plan, and the efficacy and consequences of sandbagging. SoCal does not
challenge these evidentiary rulings or attempt to demonstrate the court abused its
discretion in those rulings. (See Powell v. Kleinman (2007) 151 Cal. App. 4th 112, 122
[applying abuse of discretion standard to court's final rulings on evidentiary objections on
a motion for summary judgment].) Indeed, SoCal essentially ignores the rulings in its
arguments, when it points to the expert and nonexpert testimony to argue, among other
things, the shopping center's drainage system is diversionary. As to Clark, we therefore
disregard those excluded portions of Geiler's and Glick's opinions in our review. (Code
Civ. Proc., § 437c, subd. (c) [court shall consider all evidence set forth in summary
judgment papers except that to which objections have been made and sustained].)
Thus, the universe of facts as to Clark—undisputed by SoCal—is simply that
Clark engaged in no use or alteration of its property that changed the flow of surface or
20
floodwater: Clark did not build, develop or grade its property, and it did not divert or
attempt to divert or alter the flow of water, mud, rocks and debris that flowed over its
property during the December 2010 rainstorm. The evidence is undisputed that the
flooding began with the overflow of the Scott basin, which resulted in a tremendous flow
of floodwater toward, into and over Clark's and SoCal's property, the failure of City-built
slopes and drains, the additional failure of SoCal's own drainage, and the eventual
inundation of SoCal's property, which was heavily damaged when its masonry wall
failed. Further, because the court excluded Glick's conclusions regarding sandbagging,
Clark's failure to pay for inlets in the parking areas, and the effect of inlets on the storage
facility's damages, there is no evidence that any unreasonable omission or inaction by
Clark on its part either altered or diverted the flow of water, or caused SoCal's damages.
(See Contra Costa, supra, 235 Cal.App.4th at pp. 931-933.)7
7 In Contra Costa, the court pointed out that in the water law diversion context,
"liability can be based on an omission or inaction when the failure to act is an
unreasonable use of the property." (Contra Costa, supra, 235 Cal.App.4th at p. 931,
citing Belair v. Riverside County Flood Control Dist., supra, 47 Cal. 3d 550, 568
[plaintiffs could not prevail on an inverse condemnation claim because they did not
present "substantial evidence" that flooding from a levee failure "was the result of any
unreasonable act or omission attributable to defendants" (italics added)].) In Contra
Costa, the evidence showed a private property owner knew or should have known of an
existing large drainage channel on its property and the need to maintain it to prevent
flooding of an adjacent residential development; it was obvious that without a properly
operating channel, surface waters in the adjacent development had no way of draining;
and the private owner had been warned multiple times of flooding problems caused by
the obstructed channel. (Contra Costa, at pp. 923-924.) The appellate court
acknowledged that whether that owner's omission or failure to act in that case was
unreasonable under Keys was an issue of fact and "depends upon the context of the
situation, including whether it knew at the time it purchased the property that its failure to
maintain the Drainage Channel would likely result in flooding on Lettia Road." (Contra
21
We reject SoCal's argument that Clark somehow engaged in affirmative conduct
by merely using its property in its present state. The argument misses the point, namely,
that there must be evidence raising a triable issue of fact as to whether Clark used its
property in a manner as to divert or discharge waters on it, and whether that use was a
substantial cause of damage to SoCal's property. (Locklin, supra, 7 Cal.4th at pp. 367,
351 [landowner's conduct in "using . . . [its] property in a manner which affects the
discharge of surface waters onto adjacent property" (italics added) is subject to the Keys
reasonableness test].) On this evidence, a reasonable fact finder can only come to one
conclusion. (Accord, Ambriz v. Kelegian (2007) 146 Cal. App. 4th 1519, 1531-1532
[causation is ordinarily question of fact that cannot be resolved by summary judgment,
but the issue may be decided as a question of law if under undisputed facts, there is no
room for a reasonable difference of opinion]; Nichols v. Keller (1993) 15 Cal. App. 4th
1672, 1687.) Mere ownership of developed property, without some act or omission
impacting the discharge of water, is not a use that "affects the discharge of . . .
waters . . . ." (Locklin, supra, 7 Cal.4th at p. 351.)
SoCal argues in the alternative that if a jury found Clark's failure to act to be
reasonable, then the jury would "likely find SoCal's failure to act was reasonable also . . .
given the expert's testimony that SoCal could not significantly mitigate damages by
Costa, at p. 932.) It held the evidence supported the trial court's conclusion that the
private owner was " 'entirely unreasonable' " by failing to keep the drainage channel free
of debris, causing repeated flooding and serious risk of future flooding. (Id. at pp. 924,
936.) Here, Clark's inaction is entirely unlike that in Contra Costa; there is no evidence
Clark somehow failed to maintain its property with respect to water flow or had prior
knowledge of surface water or flooding impacting SoCal's property.
22
sandbagging on its own." SoCal also argues that a jury could not find its own conduct
unreasonable, as there is no evidence it engaged in any affirmative conduct to increase
the danger to its storage facility. The argument misunderstands the Keys rule as it applies
to developed property, under which a landowner incurs no liability when, viewed
objectively, the utility of his or her use of his land outweighs the gravity of harm caused
by the use. (Keys, supra, 64 Cal.2d at p. 410.) But SoCal's arguments fail nevertheless
because they depend on Glick's excluded opinions and statements as to sandbagging.
Additionally, the prerequisite to applying Keys is a landowner's act or omission that has
somehow altered the flow of waters to the detriment of another owner, and here, there is
no evidence that any unreasonable action, omission or use by Clark of its property has
done so. Under these circumstances, there is no basis to apply Keys. (See Gdowski v.
Louie, supra, 84 Cal.App.4th at p. 1405 ["[I]n this case were the jury to find that both
defendants and plaintiff acted reasonably, defendants would still be liable (assuming a
finding they had altered the natural flow of waters)" (italics added)].)
B. University's Tort Liability for Negligence or Nuisance
We address University's motion separately, because University did not object to
SoCal's opposing evidence. Thus, the question is whether University met its threshold
burden to show the absence of triable issues of fact as to one or more elements of SoCal's
negligence and nuisance causes of action, and then whether SoCal's evidence, including
Geiler's declaration describing University's drainage and drainage failures, and Glick's
declaration regarding the need to sandbag or install inlets, raised material issues on that
question for a jury.
23
It is of no consequence that University's summary judgment arguments on the
matter were not focused on the relevant Keys standard. University also argued that SoCal
could not establish causation, and to that end, University presented evidence from its
property coordinator and from SoCal's own discovery responses that University did not
divert or attempt to divert the water, mud, rocks and other debris away from its property
onto SoCal's property, that some of the mud, rocks and debris had originated from the
hills that drained into the basin, and that the mud rocks and debris did not originate from
University's property, but had rushed in from Mountain View Avenue. SoCal conceded
that University took no action to divert or attempt to divert the floodwater, mud, rocks
and debris that had overflowed the basin and travelled from Mountain View Avenue.
SoCal's opposing theory of tort liability, as reflected in Geiler's declaration, was
that the drainage from University's buildings and gutter system diverted the natural flow
of surface and floodwaters, rendering University liable under Keys. Geiler stated that
University's gutter system overflowed during heavy rains, and that the rainflow,
combined with roof discharge of water from University's existing buildings, pooled and
flowed over a sidewalk, across another gutter, and into the facility through its main
entrance. Geiler asserted that a University gutter sitting on the facility's south property
line would overflow or pool in heavy and light rains, causing water to seep through a wall
of a residence at the facility and forcing SoCal to replace carpet and flooring a number of
times. According to Geiler, because University would not fix this problem, SoCal
ultimately paid for a curb to address it. However, Geiler also stated that the shopping
center drainage changed in 2009 when the city of Loma Linda widened Mountain View
24
Avenue, thereby routing more water through a narrower area, and creating a sluice that
"restricts drainage and increases flow velocity between [Mountain View Avenue] and the
Facility and the Shopping Center."
As Geiler describes it, it is University's inaction—the failure to take affirmative
steps to maintain, improve or repair its drainage and gutter system—that serves as the
supposed basis for University's tort liability. Glick's declaration similarly indicates
University's liability would arise from inaction: that is, University's failure either to
affirmatively redirect uncontrolled sheet flow (which by definition, is not the result of
any conduct by University), create barriers with sandbags to stem the floodwaters, or
install additional inlets in the shopping center parking lot west of their eastern buildings
before December 22, 2010. According to Glick, had sandbags been used, the water
entering the facility would have drained out of the facility and its northwest masonry wall
would not have fallen, eliminating the damage to its storage unit doors and reducing the
sediment at the facility.8 Glick also averred that had University placed additional inlets,
those inlets would have helped discharge the water entering the parking lot, and "would
have helped to further reduce the [storage f]acility's damage." But in her preliminary
8 Glick's supplemental report reaches a similar conclusion. She states:
"Implementation of standard flood prevention plans, or stormwater pollution prevention
plans, for the Mountain View Plaza shopping center including placement of sandbags
along Mountain View Avenue property boundary would have retained the sediment and
debris within the Mountain View avenue right-of-way. It is our opinion that placement
of a row of sandbags (typically 3-bags high in a triangular fashion) placed along the
western extent of the parking lot areas (parallel to the direction of water flow) would
have been sufficient to retain the sediment and debris on the street and sidewalk areas
thus reducing or avoiding the inflow of sediment and debris to the parking lot and into the
subject storage facility."
25
hydrologic assessment and runoff evaluation addressing the December 2010 storm event,
Glick opined that the "primary causes" of the storage facility's inundation were "a direct
result of" failures that had nothing to do with University's gutter drainage, sheet flow,
sandbagging or inlets on University's property.9
Focusing on whether the evidence demonstrates University's inaction was
unreasonable, we conclude as a matter of law it does not. We look to University's
purpose or motives in using its property, as well as the amount and foreseeability of harm
caused. (Keys, supra, 64 Cal.2d at p. 410; Contra Costa, supra, 235 Cal.App.4th at p.
934.) We also look at the "amount of surface water runoff added to the streamflow by
the defendant's improvements in relation to that from development of other parts of the
watershed." (Locklin, supra, 7 Cal.4th at p. 337.) Under Keys, University incurs no
liability when, objectively viewed, the utility of University's use of its land outweighs the
gravity of harm caused by the use. (Keys, supra, 64 Cal.2d at p. 410; Contra Costa, at
9 Glick's report opines that the "primary causes of the inundation of [SoCal's]
property are a direct result of" (1) City's inadequate reservoir operational planning and
maintenance; (2) City's failure to maintain runoff control structures; (3) clogging of storm
drain inlets along Mountain View Avenue due to runoff from the watershed; (4) widening
of Mountain View Avenue that altered and restricted stormwater flow without adequate
catch basins; (5) alteration of the stormwater runoff pattern from the Loma Linda plaza
due to installation of a curb along the access road constructed to accommodate the
widening of Mountain View Avenue, and (6) clogging of the storm drain inlet installed
along the access road between Mountain View Avenue and the project site and slope
failure on the Mountain View Avenue fill embankment. In reply, SoCal points to the
fifth cause, claiming that Glick was referring to the flow over University's parking lot.
Even if that were the case, Glick stated that the alteration of the runoff in that area was
"by installation of a curb along the access road constructed to accommodate the widening
of Mountain View Avenue and construction of the extended roadway fill embankment."
Glick thus attributed the runoff alteration to City's curb and embankment, not to
University's gutters, inadequate inlets or sheet flow off its buildings.
26
p. 934.)
SoCal presented no evidence that University had any improper motive or purpose
in passively using or maintaining its parking areas and buildings, or that it had any other
purpose for its gutter system than the standard drainage of rainwater from its buildings.
There is no evidence University intended to direct surface or floodwater onto SoCal's
property. Nor can SoCal show foreseeability of the resulting harm as a component of the
reasonableness inquiry. (Keys, supra, 64 Cal.2d at p. 410; Contra Costa, supra, 235
Cal.App.4th at p. 932.) It is undisputed that since University's acquisition of its property,
it had never been inundated by water, mud, rocks and/or debris. SoCal presented
evidence that the weather service gave several days notice of the possibility of flooding,
but there is no evidence that University knew or should have known the water flow
through roof drains and parking lot or via its gutter system would discharge an
unreasonably severe amount of water into SoCal's property. Geiler's statement that
University "would not fix" its overflowing gutters, and that a residence on SoCal's
property suffered seepage in heavy rains, does not permit a reasonable inference that
University was aware of a drainage problem on SoCal's property or its extent. Unlike
Contra Costa, supra, 235 Cal. App. 4th 914, in which the landowner was warned multiple
times that failure to maintain an existing drainage channel on its property would result in
flooding to the adjoining residences, there is no evidence here University knew its
inaction with respect to the existing gutters or inlets on its property would contribute with
the heavy flooding to cause the significant damage that occurred in December 2010.
Indeed, SoCal's own evidence demonstrates the absence of any prior known water
27
discharge problems, when Geiler states: "Prior to December 22, 2010, in the 26 years
that [SoCal] had owned the Facility, it had never experienced any significant issues with
surface water discharge, much less any flooding. Plaintiff is unaware of the Facility
experiencing any significant issues with surface water discharge or flooding prior to its
ownership of the Facility." Notably, Glick pointed out in her hydrologic assessment that
prior, more significant, storm events did not result in flooding in the vicinity or at SoCal's
property: "The December 16-22, 2010, storm event, which resulted in significant
flooding and sediment deposition at the project site and the surrounding areas in Loma
Linda, California produced significantly less rain than storm events which occurred in the
2006-2007 rain season, which did not generate flooding at or in the vicinity of the project
site." Thus, the extensive damage to SoCal's property from the basin overflowing and
flooding was not foreseeable as to render University's omissions unreasonable.
Further, notwithstanding Keys's rejection of strict negligence accountability, there
must nevertheless be a causal relationship between a diverting landowner's conduct and
alleged harm to an adjoining landowner. (Keys, supra, 64 Cal.2d at p. 410 [the amount of
harm caused by the upper owner is one of the reasonableness factors]; see also Locklin,
supra, 7 Cal.4th at pp. 359-360.) Here, it is undisputed that days of heavy rain in
December 2010 caused an overflow of the Scott basin, which resulted in a torrent of
water, mud, dirt and debris down Mountain View Avenue into the shopping center
parking lot. That onslaught—combined with City's widening of Mountain View Avenue
as well as slope, drainage, and other failures that were not attributable to University—
were the primary causes of the inundation of SoCal's property, failure of SoCal's
28
masonry wall, and significant damage. Though Glick presented some evidence that
sandbagging by University would have reduced SoCal's damage, her official and studied
conclusion as to the primary causes of the inundation of SoCal's property had nothing to
do with University's gutter drainage, sheet flow, sandbagging or inlets on University's
property. Glick's testimony shows that other failures caused by the December 2010
storm were intervening and primary causes of the significant harm suffered by SoCal.
This evidence compels a conclusion that SoCal has not demonstrated triable issues
of material fact as to University's role in causing its harm, which as we have indicated,
is a matter that may be decided as a question of law if the facts leave no room for a
reasonable difference of opinion. (Ambriz v. Kelegian, supra, 146 Cal.App.4th at
pp. 1531-1532.) " '[A] cause in fact is something that is a substantial factor in bringing
about the injury.' " (South Coast Framing, Inc. v. W.C.A.B. (2015) 61 Cal. 4th 291, 298.)
Given that the primary causes of SoCal's damages were unrelated to University,
we would conclude under these circumstances, that on balance, the utility of University's
uses in draining surface and floodwaters off its property precludes liability as a matter
of law. The question of reasonableness is a factual inquiry (Keys, supra, 64 Cal.2d at
p. 410; Contra Costa, supra, 235 Cal.App.4th at p. 932), but on this evidence, a
reasonable fact finder can only come to one conclusion. Summary judgment was
properly granted on SoCal's tort causes of action for negligence and nuisance.
29
IV. Trespass
" ' "The essence of the cause of action for trespass is an 'unauthorized entry' onto
the land of another." ' " (Church of Christ in Hollywood v. Superior Court (2002) 99
Cal. App. 4th 1244, 1252.) It does not require a personal entry onto the property but
" 'may be accomplished by the casting of substances or objects upon the plaintiff's
property from without its boundaries.' " (Elton v. Anheuser–Busch Beverage Group, Inc.
(1996) 50 Cal. App. 4th 1301, 1306.) But "liability for trespass will not be imposed unless
the trespass was intentional, the result of recklessness, negligence, or the result of an
extra hazardous activity." (Wilson v. Interlake Steel Co. (1982) 32 Cal. 3d 229, 233; see
also Armitage v. Decker (1990) 218 Cal. App. 3d 887, 906.) We have already held
summary judgment was properly granted on SoCal's negligence claim, eliminating that
theory of trespass. Intentional conduct, for purposes of a trespass, may include not only
the result the actor desires, but also the consequences that he knows are substantially
certain to result. (Staples v. Hoefke (1987) 189 Cal. App. 3d 1397, 1408; see also Roberts
v. Permanente Corp. (1961) 188 Cal. App. 2d 526, 530 [the "doing of an act which will to
a substantial certainty result in the entry of foreign matter upon another's land suffices for
an intentional trespass to land upon which liability may be based"].)
SoCal argues the court erred by granting summary judgment on its trespass cause
of action, asserting there was undisputed evidence that both Clark and University
"intentionally diverted water into SoCal's property without permission and damaged it."
However, the sole record citation in support of this assertion is SoCal's points and
authorities in opposition to the summary judgment motions, in which it merely argued
30
that Clark and University "for years have used their building to block the area's natural
drainage and have used their outlets and their parking area to discharge their waters and
the waters they receive from [other property owners] into the Facility." Of course,
" '[e]vidence' means testimony, writings, material objects, or other things presented to the
senses that are offered to prove the existence or nonexistence of a fact." (Evid. Code,
§ 140.) It is well settled that "[s]tatements and arguments by counsel are not evidence."
(Gdowski v. Gdowski (2009) 175 Cal. App. 4th 128, 139.) Thus, we do not consider these
statements when evaluating SoCal's claim. As a result, SoCal has not met its appellate
burden to demonstrate error.
A summary judgment is presumed to be correct, and even when review is de novo,
the appellant still bears the burden of affirmatively demonstrating error. (See Claudio v.
Regents of the University of California (2005) 134 Cal. App. 4th 224, 252.) Thus, it is
SoCal's responsibility to point out the claimed triable issues by specific citation to the
factual record and supporting legal authority. This court is not " 'obligate[d] . . . to cull
the record for the benefit of the appellant.' " (Bains v. Moores (2009) 172 Cal. App. 4th
445, 455.) When an appellant asserts a point but fails to support it with reasoned
argument and appropriate legal and factual citations, we treat the point as forfeited.
(Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal. App. 4th 1052, 1066; see also People
v. Stanley (1995) 10 Cal. 4th 764, 793.) That is the case here, but we observe in any event
based on our analysis above that there is no evidence by which a reasonable jury could
conclude that Clark or University either sought to divert water onto SoCal's property, or
created a condition that they knew to a substantial certainty would result in a damaging
31
diversion of water onto SoCal's property. We conclude SoCal has not shown its evidence
raised triable issues of material fact as to trespass.
V. Conversion
"Conversion is the wrongful exercise of dominion over the personal property of
another." (Taylor v. Forte Hotels International (1991) 235 Cal. App. 3d 1119, 1124.)
" ' " 'The elements of a conversion claim are: (1) the plaintiff's ownership or right to
possession of the property; (2) the defendant's conversion by a wrongful act or
disposition of property rights; and (3) damages . . . .' " ' " (Lee v. Hanley (2015) 61
Cal. 4th 1225, 1240; see also Black's Law Dict. (6th Ed.1990) p. 332, col. 1 [conversion is
an "unauthorized assumption and exercise of the right of ownership over goods or
personal chattels belonging to another, to the alteration of their condition or the exclusion
of the owner's rights"].)
Conversion is a strict liability tort in that wrongful intent is not necessary: " ' "The
foundation for the action for conversion rests neither in the knowledge nor the intent of
the defendant. . . . [Instead,] 'the tort consists in the breach of what may be called an
absolute duty; the act itself . . . is unlawful and redressible as a tort.' " ' " (Moore v.
Regents of University of California (1990) 51 Cal. 3d 120, 144 & fn. 38; Taylor v. Forte
Hotels International, supra, 235 Cal.App.3d at p. 1124; see also Regent Alliance Ltd. v.
Rabizadeh (2014) 231 Cal. App. 4th 1177, 1181.) " 'Therefore, questions of the
defendant's good faith, lack of knowledge, and motive are ordinarily immaterial.' "
(Regent Alliance Ltd., at p. 1181.) This court has held that while the tort does not require
wrongful intent, "the act must be knowingly or intentionally done . . . ." (Taylor v. Forte
32
Hotels International, at p. 1124, citing Poggi v. Scott (1914) 167 Cal. 372, 375; see also
Collin v. American Empire Ins. Co. (1994) 21 Cal. App. 4th 787, 812-815 [conversion
cannot occur "accidentally"].)
SoCal's appellate arguments on these points suffer from the same flaws as its
arguments on trespass: they are based only on citations to arguments made in its opposing
points and authorities. Thus, SoCal has not demonstrated with reasoned legal argument
or competent evidence that summary judgment was precluded on its conversion claim.
And, on this record, evidence supporting essential elements of SoCal's conversion
claim—Clark or University's wrongful act or disposition of SoCal's personal property, as
well as any act on their part knowingly or intentionally done—is absent.
33
DISPOSITION
The judgments are affirmed.
O'ROURKE, J.
WE CONCUR:
NARES, Acting P. J.
PRAGER, J.*
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
34