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Date: 08-25-2017

Case Style:

Mercury Casualty Company v. City of Pasadena

Case Number: B266959 & B268452

Judge: Lavin

Court: California Court of Appeals Second Appellate District Division Three on appeal from the Superior Court, Los Angeles County

Plaintiff's Attorney: Richards, Watson, & Gershon, Robert C. Ceccon, Saskia T. Asamura, T. Peter Pierce, and Stephanie Cao; Michelle Beal Bagneris, Ann S. Rider, and Javan N. Rad

Defendant's Attorney: Timothy E. Cary, Brian M. Wong, and Nathan R. Hurd

Description: In 2011, a storm brought hurricane-force winds to the City
of Pasadena (City), uprooting more than 2,000 trees. One of
those trees fell on the home of Sarah and Christopher Dusseault,
causing severe property damage. Before it fell, the tree stood in a
parkway that abuts the Dusseaults’ property. Although the City
owned the tree, there is no record of who planted it.
In 2012, Mercury Casualty Company (Mercury), the
Dusseaults’ insurer, sued the City for inverse condemnation.
After a bench trial, the trial court entered judgment in Mercury’s
favor, finding the tree that fell on the Dusseualts’ home was a
work of public improvement that supported an inverse
condemnation claim. The court awarded Mercury $800,000 in
damages for insurance benefits paid to the Dusseaults, and an
additional $329,170 in costs under Code of Civil Procedure
section 1036.
On appeal, the City contends the court erred in finding it
liable under a theory of inverse condemnation. We conclude the
tree that fell on the Dusseaults’ home does not constitute a work
of public improvement for purposes of an inverse condemnation
claim. Because the City could not be held inversely liable for the
3
damage caused to the Dusseaults’ home, we reverse the judgment
and subsequent order awarding costs.
1
FACTUAL AND PROCEDURAL BACKGROUND
1. The City’s Urban Forest
The City owns more than 60,000 trees as part of its “urban
forest.” The City adopted its first formal policy addressing cityowned
trees in 1940, when it published the “Official Street Tree
List.” The list designated an official tree for each street in the
City.2 The list did not include an inventory of the City’s thenexisting
trees or establish any procedures or guidelines for
pruning, removing, or otherwise maintaining city-owned trees.
In 1976, the City adopted a “Master Street Tree Plan,”
which listed the official tree for each street in the City and
included an inventory of the City’s then-existing trees.3 Like the
Official Street Tree List, the Master Street Tree Plan did not
establish any procedures or guidelines for removing or otherwise
1 The City also appeals from the court’s order awarding costs,
including attorney fees, under Code of Civil Procedure section 1036.
Because costs under that section can only be awarded to a plaintiff who
is successful in bringing an inverse condemnation claim (see Code Civ.
Proc., § 1036), we also reverse that order.
2 According to the City’s Forestry Superintendant, an official tree
is a species of tree the City prefers to plant on city-owned property
adjacent to each of its streets. The Official Street Tree List named the
Red Box Eucalyptus as the official tree for Hillside Terrace, where the
tree at issue in this case (a Canary Island Pine) was located.
3 In the Master Street Tree Plan, the City changed the official tree
for Hillside Terrace from Red Box Eucalyptus to Canary Island Pine.
4
maintaining city-owned trees. In 1989, the City published an
updated inventory of its trees.
In 1992, the City adopted Municipal Code Chapter 8.52,
entitled “City Trees and Tree Protection Ordinance” (Ordinance).4
The Ordinance established city-wide policies for protecting,
maintaining, and removing trees that are part of the City’s urban
forest.5
The Ordinance identifies the types of trees that fall within
its scope, including “Public Trees” (public trees) and “Street
Trees” (street trees). The Ordinance defines a public tree as “a
tree located in a place or area under ownership or control of the
city including but without limitation streets, parkways, open
4 The City amended the Ordinance in 2002 and 2010.
5 Section 8.52.015 states that the purposes of the Ordinance are
to: “[p]reserve and grow Pasadena’s canopy cover by protecting
landmark, native and specimen trees on specified areas of private
property and expanding the protection of street trees and trees on
public property[;] [¶] [s]afeguard the City’s urban forest by providing
for the regulation of the protection, planting, maintenance and removal
of trees in the city[;] [¶] [p]rotect the visual and aesthetic character of
the city[;] [¶] [i]mprove and enhance property values by conserving and
adding to the distinctive and unique aesthetic character of the many
areas of Pasadena[;] [¶] [i]mprove the quality of life for residents,
visitors and wildlife[;] [¶] [c]reate favorable conditions for the
protection of designated landmark, native and specimen trees, for the
benefit of current and future residents of Pasadena[;] [¶] [m]aintain
and enhance the general health, safety and welfare of the city and its
residents by assisting in counteracting air pollution and in minimizing
soil erosion and other related environmental damage[;] [¶] [p]rotect
and maintain healthy trees in the land use planning processes as set
forth herein[;] [¶] [and] [e]stablish procedures and practices for
fulfilling the purposes of this city tree and tree protection ordinance.”
5
space, parkland and including city owned property under the
operational control of another entity by virtue of a lease, license,
operating or other agreement.” The Ordinance defines a street
tree as “any public tree whose trunk is located primarily within
any parkway, public sidewalk, street median, traffic island or
other right of way under the ownership or control of the city by
easement, license, fee title or other permissive grant of use.”
The Ordinance does not establish specific design standards
or parameters for the planting or removal of street trees, nor does
it include any maintenance or pruning schedules for street trees.
The Ordinance does, however, prohibit members of the public
from pruning, removing, or otherwise injuring any street trees,
and it establishes a procedure through which members of the
public may request the City to inspect, remove, or prune a street
tree.
The City Manager is tasked with implementing the
Ordinance. The City Manager’s responsibilities include, among
other things: planting, maintaining, caring for, and removing
trees covered by the Ordinance; developing maintenance
standards for trees located in public places; issuing permits
under the Ordinance; and enforcing the Ordinance by issuing
compliance orders or administrative citations.
In either 2005 or 2010, the City implemented a policy of
inspecting and maintaining its street trees every five years. A
certified arborist testified that the City’s five-year maintenance
schedule was consistent with the industry standard for
6
maintaining trees and exceeded the standards used by most other
cities.
6
2. The Dusseaults’ Property
In 2004, Sarah and Christopher Dusseault purchased a
home on Hillside Terrace in Pasadena. The Dusseaults’ property
is separated from the street by a 20-foot-wide dirt parkway that
the City owns. At the time the Dusseaults purchased their home,
four Canary Island Pine trees stood in the parkway.7 The trees
were planted in the late 1940s or early 1950s by an unknown
party.
8
6 While this appeal was pending, we granted Mercury’s request
for judicial notice of portions of a draft “Urban Forest Management
Plan” (draft plan), dated April 20, 2015, which a private contractor
prepared for the City. The portions of the draft plan provided to us
identify the purposes and benefits of maintaining the City’s urban
forest, many of which are similar to those identified in the Ordinance,
and compare the size of, and cost of maintaining, the City’s urban
forest to those owned and maintained by other cities in Southern
California. Because there is no evidence that the City adopted or
implemented any portion of the draft plan, it does not affect our
analysis.
7 Throughout this opinion, we sometimes refer to the four Canary
Island Pine trees located in front of the Dusseaults’ home as “Tree F-
1,” “Tree F-2,” etc., a designation similar to the one used by the parties
at trial and by the City in its records documenting the location and
condition of the trees. When viewed from the street, Tree F-1 is
located to the left of the Dusseaults’ driveway, and Tree F-2, Tree F-3,
and Tree F-4 are located to the right of the driveway.
8 The City does not dispute that, at the time of the incident giving
rise to this lawsuit, it owned the Canary Island Pine trees in front of
the Dusseaults’ property because they were located in a public
parkway.
7
In addition to Trees F-1 through F-4, there were shrubs
inside the city-owned parkway that the prior owners of the
Dusseaults’ home had planted. The Dusseaults maintained the
shrubs using a sprinkler system that they owned.9 The sprinkler
system also irrigated the city-owned trees, which may have
caused them to grow between 40 to 50 feet taller than they would
have grown with only natural irrigation.
The City inspected the trees in front of the Dusseaults’
property on three occasions between 2006 and 2008. In April
2006, the City inspected Trees F-2 and F-3 after Sarah Dusseault
reported that Tree F-3 had started to lean toward the family’s
house. The City determined that Tree F-3 did not need to be
removed and scheduled Trees F-2 and F-3 for pruning. In April
2007, the City pruned Trees F-2 and F-3.10 In February 2008, the
City removed Tree F-4 after it died.
In early 2011, the Dusseaults re-landscaped the parkway in
front of their property. They replaced some of the existing
vegetation with drought-resistant plants and shrubs and
installed a new drought-resistant irrigation system. A neighbor
testified that during the landscaping project, one of the workers
hired by the Dusseaults removed chunks of tree roots near the
9 According to the City’s Forestry Superintendant, the City allows
homeowners to landscape the areas of public parkways that front
private property, with the exception that the homeowners cannot
remove or otherwise disturb the trees planted in public parkways.
10 The City’s Forestry Superintendant could not recall how
frequently the City pruned the trees in front of the Dusseaults’
property before it implemented the five-year pruning cycle, but City
records show that before April 2007, Tree F-2 had last been pruned in
June 1993.
8
base of Tree F-2, the largest of which was about two feet long and
the width of a human fist.
3. The Storm
During the evening of November 30, 2011, a storm carrying
hurricane-force winds struck Pasadena. The storm injured more
than 5,000 city-owned trees, more than 2,000 of which were
uprooted. Around 12:30 a.m. on December 1, 2011, Tree F-2 fell,
causing severe damage to the Dusseaults’ home. At the time it
fell, Tree F-2 was around 100 feet tall.
The storm was unusually destructive for several reasons.
First, the storm carried hurricane-force winds, which are
measured at 73 miles per hour or higher. A weather station
located about three miles from the Dusseaults’ home measured
gusts of wind ranging from 79 to 101 miles per hour between
midnight and 3:00 a.m. on the night of the storm. Second, the
gusts of wind changed direction rapidly. Finally, the winds
approached the City from an unusual direction. The Santa Ana
winds that frequently strike the City tend to approach from the
northeast. The storm’s winds, on the other hand, approached the
City from the north and northwest. Trees are more likely to fall
when they are struck by winds that approach from an unusual
direction because trees “adapt their roots and their branching
structure to a specific wind pattern.”
4. Mercury’s Lawsuit
Mercury paid the Dusseaults more than $700,000 in
insurance benefits for the damage that Tree F-2 caused to their
home. In July 2012, Mercury, as subrogee under the Dusseaults’
insurance policy, sued the City for inverse condemnation alleging
the City was liable for the damage caused to the Dusseaults’
9
home because the City owned Tree F-2.11 On May 11, 2015, the
court commenced a four-day bench trial.
On July 24, 2015, the court issued a statement of decision
and entered judgment in favor of Mercury. The court found the
City liable for inverse condemnation on the following grounds:
“1. The tree that fell was a public improvement maintained for a
public purpose; [¶] 2. The damage to the residence of Mercury’s
insured was proximately caused by the public improvement; [¶]
3. The City is strictly liable for the property damage under
inverse condemnation; [¶] [and] 4. The doctrine of superseding
cause does not apply, under these facts, to the City’s liability
under inverse condemnation.” The court explained its ruling as
follows: “[T]he Canary Island pine tree that fell on and damaged
the [Dusseaults’] residence was a work of public improvement
and subjects the City to liability for inverse condemnation. The
damage to the residence of Mercury’s insured was proximately
caused by the public improvement. The City’s maintenance of a
110 foot tall Canary Island pine tree only 60 feet away from the
insured’s residence exposed that property owner to a peril from
the falling of the tree, caused by whatever event, to which she
would not otherwise have been exposed. Because the tree fell
causing private property damage, and was a work of public
improvement, the City is strictly liable for the property owner’s
loss under inverse condemnation. Were the decision otherwise,
the homeowner would bear a loss for damage caused by a public
improvement project that is not imposed on other Pasadena
residents.”
11 Mercury also alleged claims for dangerous condition of public
property and nuisance, but it dismissed those claims before trial.
10
On July 24, 2015, the court entered judgment in Mercury’s
favor in the sum of $800,000. On September 22, 2015, the court
awarded Mercury $329,170 in costs, including attorney fees,
disbursements, expenses, and interest, under Code of Civil
Procedure section 1036. The City timely filed separate appeals
from the judgment and the costs order. We consolidated the two
appeals for purposes of briefing, oral argument, and decision.
DISCUSSION
1. General Principles of Inverse Condemnation
Article 1, section 19 of the California Constitution allows a
property owner to recover “just compensation” from a public
entity for private property that is “taken or damaged for a public
use.” (Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 362.)
“When there is incidental damage to private property caused by
governmental action, but the governmental entity has not
reimbursed the owner, a suit in ‘inverse condemnation’ may be
brought to recover monetary damages for any ‘special injury,’ i.e.,
one not shared in common by the general public.” (Ibid.)
In inverse condemnation, a property owner may recover
from a public entity for “any actual physical injury to real
property proximately caused by [a public] improvement as
deliberately designed and constructed ... whether foreseeable or
not.” (Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 263–
264 (Albers).) Thus, a public entity generally is strictly liable for
any damage to private property caused by a public improvement
as that improvement was deliberately designed, constructed, or
maintained. (Pacific Bell v. City of San Diego (2000) 81
Cal.App.4th 596, 610 (Pacific Bell).) Inverse condemnation
liability does not arise out of general tort liability, such as
negligent acts in the day-to-day maintenance or operation of a
11
public improvement. (Cal. State Automobile Assn. v. City of Palo
Alto (2006) 138 Cal.App.4th 474, 479 (Cal. State Automobile
Assn.).) “ ‘The destruction or damaging of property is sufficiently
connected with “public use” as required by the Constitution, if the
injury is a result of dangers inherent in the construction of the
public improvement as distinguished from dangers arising from
the negligent operation of the improvement.’ [Citation.]”
(Paterno v. State of California (1999) 74 Cal.App.4th 68, 87
(Paterno).)
The fundamental policy “underlying the concept of inverse
condemnation is that the costs of a public improvement
benefiting the community should be spread among those
benefited rather than allocated to a single member of the
community.” (Pacific Bell, supra, 81 Cal.App.4th at p. 602.)
Thus, as the California Supreme Court explained in Albers, the
primary consideration in an inverse condemnation action is
“ ‘whether the owner of the damaged property if uncompensated
would contribute more than his proper share to the public
undertaking.’ ” (Albers, supra, 62 Cal.2d at p. 262.) In other
words, “[i]nverse condemnation liability ultimately rests on the
notion that the private individual should not be required to bear
a disproportionate share of the costs of a public improvement.”
(Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d
550, 566.)
2. The City is not inversely liable because Tree F-2 was
not a work of public improvement and the City’s tree
maintenance plan was not deficient.
The City contends the trial court erred in finding it liable in
inverse condemnation because Tree F-2 was not a work of public
improvement. Specifically, the City argues that because there is
no evidence that the City planted the tree as part of a
12
construction project serving a public purpose, such as a roadway
beautification project, the tree was not a work of public
improvement as that term is used in the inverse condemnation
context. We agree.
A public project or improvement is a “use which concerns
the whole community or promotes the general interest in its
relation to any legitimate object of government.” (Bauer v.
County of Ventura (1955) 45 Cal.2d 276, 284.) Whether
something is a public improvement is a question of law. (Barham
v. Southern Cal. Edison Co. (1999) 74 Cal.App.4th 744, 752.) We
therefore independently review the trial court’s finding that Tree
F-2 “was a public improvement maintained for a public purpose.”
Only three published decisions have addressed inverse
condemnation claims arising out of a public entity’s ownership of
trees, none of which held the entity inversely liable. (See Regency
Outdoor Advertising, Inc. v. City of Los Angeles (2006) 39 Cal.4th
507 (Regency); City of Pasadena v. Superior Court (2014) 228
Cal.App.4th 1228, 1234 (City of Pasadena); Boxer v. City of
Beverly Hills (2016) 246 Cal.App.4th 1212 (Boxer).) Only two of
those opinions, Regency and City of Pasadena, discussed whether
a city-owned tree qualifies as a work of public improvement for
purposes of inverse condemnation.12
12 Boxer addressed only whether the alleged property interest that
was damaged by the city’s trees (a right to unobstructed views from
one’s property) constitutes a sufficient property interest to support an
inverse condemnation claim. (See Boxer, supra, 246 Cal.App.4th at
pp. 1217–1225.) The court held that such a property interest is not, by
itself, sufficient to give rise to a claim in inverse condemnation without
discussing whether the city’s trees constituted public improvements.
(Id. at pp. 1219–1225.)
13
In Regency, the California Supreme Court affirmed a
judgment in favor of the City of Los Angeles on a billboard
company’s inverse condemnation claim. In that case, the city had
planted palm trees on its own property along both sides and in
the median of Century Boulevard as part of a project to beautify
the road. (Regency, supra, 39 Cal.4th at p. 513.) Regency, a
company that owned billboards along Century Boulevard, sued
the city in inverse condemnation, claiming that the palm trees
obscured the public’s view of the company’s billboards. (Id. at
pp. 513–514.) Regency alleged that the city’s planting of the
palm trees in front of the billboards resulted in a taking of the
company’s “ ‘right of visibility,’ ” which the company claimed
entitled it to compensation from the city. (Id. at p. 516.) The
court rejected Regency’s theory of inverse condemnation liability,
holding that a property owner’s interest in having its property
viewed by the public, by itself, does not constitute a sufficient
property right to give rise to an inverse condemnation claim. (Id.
at pp. 519–523.)
As part of its analysis, the court assumed that the planting
of trees along a city-owned street as part of a highway
beautification project constituted a public improvement for
purposes of an inverse condemnation claim. (Regency, supra, 39
Cal.4th at pp. 521–523.) The court recognized that the city’s
project benefited the public generally and served a public
purpose—i.e., the maintenance and improvement of city-owned
roads. (Id. at pp. 521–522.) The court also observed that in
exercising its power to maintain and improve the city’s road
system, “ ‘[the government] may plant shade trees along the road
to give comfort to motorists and incidentally to improve the
appearance of the highway. By so doing [the government] aims
to make a better highway than a mere scar across the land would
14
be. If trees interfere with the view of the adjacent property from
the road, no right is interfered with.’ [Citation.]” (Id. at p. 521.)
In City of Pasadena, the appellate court reviewed an order
denying the City’s motion for summary adjudication of Mercury’s
claim for inverse condemnation arising out of residential damage
caused by a different city-owned tree that fell during the
November 2011 storm. In that case, the City also argued that “ ‘a
tree is not a work of public improvement that is the proper
subject of an inverse condemnation action.’ ” (City of Pasadena,
supra, 228 Cal.App.4th at p. 1231.) The trial court denied the
City’s motion, concluding there was sufficient evidence to send
the claim to trial because a trier of fact could find the subject tree
was a public improvement to support an inverse condemnation
claim. (Id. at p. 1232.) The City filed a petition for writ of
mandate challenging the trial court’s ruling, which was denied.
(Id. at pp. 1232–1236.)
As a threshold matter, the reviewing court noted that a
public improvement is a project or use that involves “(1) a
deliberate action by the state (2) taken in furtherance of public
purposes.” (City of Pasadena, supra, 228 Cal.App.4th at p. 1234.)
The court then examined Moerman v. State of California (1993)
17 Cal.App.4th 452 and Wildensten v. East Bay Regional Park
Dist. (1991) 231 Cal.App.3d 976 (Wildensten), two cases that
define when a public entity has not engaged in any deliberate
action that would give rise to an inverse condemnation claim.
(City of Pasadena, supra, at p. 1234; see also Moerman, supra, 17
Cal.App.4th at pp. 456–459 [no deliberate action when the entity
does not control the movements of wild animals on state land
that cause damage to a plaintiff’s property]; Wildensten, supra,
231 Cal.App.3d at pp. 978–981 [no deliberate action when the
entity does not improve or stabilize raw land that it owns and
which causes damage to the plaintiff’s property during a
15
landslide].) Next, the court looked to Regency for guidance in
determining whether the planting of a tree can constitute a
“public purpose.” (City of Pasadena, at pp. 1234–1235; see also
Regency, supra, 39 Cal.4th at pp. 521–523.) Drawing from these
cases, the court concluded that “if the instrumentality that
allegedly caused the plaintiff’s damages (such as a tree) is part of
the construction of a public improvement (such as a highway
beautification plan), the public improvement element of an
inverse condemnation claim is satisfied.” (City of Pasadena, at
p. 1235.)
Ultimately, the court denied the writ petition because a
triable issue of fact existed as to whether the City’s tree that
damaged the insured’s home was a work of public improvement.
(City of Pasadena, supra, 228 Cal.App.4th at pp. 1235–1236.)
Specifically, the court determined that the City failed to present
any evidence demonstrating that the tree was not part of the
construction of a public project. (Id. at p. 1235.)
Based on Regency and City of Pasadena, we hold that a tree
constitutes a work of public improvement for purposes of inverse
condemnation liability if the tree is deliberately planted by or at
the direction of the government entity as part of a planned
project or design serving a public purpose or use, such as to
enhance the appearance of a public road. Our holding comports
with the requirement for inverse condemnation claims that the
complained-of damage must be caused by an improvement that
was “deliberately designed and constructed.” (See Albers, supra,
62 Cal.2d at p. 263.) Indeed, in virtually every case affirming
inverse condemnation liability, the responsible public entity, or
its predecessor, deliberately constructed the improvement that
caused damage to private property. (See, e.g., id. at pp. 254–255
[a county’s construction of roads caused a landslide]; Pacific Bell,
supra, 81 Cal.App.4th at pp. 599–601, 607–610 [water main pipes
16
constructed and maintained by a city burst and flooded private
property]; Cal. State Automobile Assn., supra, 138 Cal.App.4th at
pp. 476–484 [sewage pipes constructed and maintained by a city
backed up and flooded private property]; Imperial Cattle Co. v.
Imperial Irrigation Dist. (1985) 167 Cal.App.3d 263, 269–271
[drainage structure constructed and maintained by a public
entity flooded private property]; Aetna Life & Casualty Co. v. City
of Los Angeles (1985) 170 Cal.App.3d 865, 872–874 [power lines
constructed and maintained by public entity sparked and caused
a fire that damaged private property].)
Our holding is also consistent with a fundamental
justification for inverse condemnation liability: the public entity,
acting in furtherance of public objectives, took a calculated risk
that damage to private property may occur. (Yox v. City of
Whittier (1986) 182 Cal.App.3d 347, 355; see also Van Alstyne,
Inverse Condemnation: Unintended Physical Damage (1969) 20
Hastings L.J. 431, 491 [proceeding with a public project without
incorporating necessary prevention measures for known risks is a
“deliberate policy decision to shift the risk of future loss to
private property owners rather than to absorb such risk as a part
of the cost of the improvement paid for by the community at
large”].)
Here, there is no record of who planted Tree F-2 or for what
purpose it was planted. All we know is that the tree was planted
on Hillside Terrace in the late 1940s or early 1950s. At the time
the tree was planted, it was not the same species as the type of
tree that the City had designated as the official street tree for
Hillside Terrace. There is therefore nothing to suggest that the
City planted the tree as part of a planned project or design to
beautify its roads, or to serve some other public purpose. There is
also nothing to suggest that the City took a calculated risk by
planting Tree F-2, or any other tree, near the Dusseaults’
17
property. Other than owning Tree F-2 and pruning it in 1993
and 2007, there is no evidence the City took any deliberate action
before Tree F-2 fell in 2011. (See Wildensten, supra, 231
Cal.App.3d at pp. 979–981 [mere ownership of undeveloped land,
without more, cannot form the basis for an inverse condemnation
claim].) In short, Tree F-2 was not a work of public improvement.
We also reject Mercury’s argument that the City’s adoption
of the Ordinance converted Tree F-2 into a work of public
improvement because the Ordinance promotes the public’s
interest in maintaining trees. The Ordinance was adopted in
1992, several decades after the tree was planted. It therefore
could not have had any bearing on how or for what reason Tree
F-2 was planted. Further, although one of the Ordinance’s
general goals is to preserve and grow the City’s canopy cover, it
does not establish specific design standards or parameters for the
planting or removal of street trees, nor does it include any
maintenance or pruning schedules for street trees like Tree F-2.
We also note that there was no showing that the City’s
articulated public policy of promoting urban forestry reduced the
value of private abutters’ property. (See Regency, supra, 39
Cal.4th at pp. 522–523 [if a street is ornamented so as to be more
beautiful, the public is benefited generally and the abutter is
benefited specially]; Clement v. State Reclamation Bd. (1950) 35
Cal.2d 628, 642 [“The decisive consideration [in an inverse
condemnation case] is whether the owner of the damaged
property if uncompensated would contribute more than his
proper share to the public undertaking.”].) Quite simply, the
Ordinance does not constitute a design for a public project or
improvement, nor does it convert Tree F-2 into a work of public
18
improvement, that subjects the City to inverse condemnation
liability.13
Citing Marin v. City of San Rafael (1980) 111 Cal.App.3d
591, Mercury contends that it is immaterial to an inverse
condemnation analysis whether the City planted Tree F-2
because the City has since taken ownership of the tree and
assumed responsibility for maintaining it as part of an urban
forestry program. In Marin, a city was held inversely liable for
property damage caused by a city-owned storm water drainage
pipe that had been extended onto private property with the city’s
approval and at the city’s direction. (Id. at pp. 593–596.)
Because the city had approved and substantially participated in
the construction of the extension, and because the city conceded
ownership of the storm water drainage system to which the
extension was connected, the reviewing court found there was
sufficient evidence to hold the city inversely liable for damage
caused by a work of public improvement the city had deliberately
designed and constructed. (Id. at pp. 595–596.) Mercury’s
reliance on Marin is misplaced. Unlike in Marin, there is no
evidence that the City converted a private improvement to public
use, or deliberately designed or helped construct the
improvement.
13 For similar reasons, the City’s Master Street Tree Plan does not
constitute a design for a public improvement or convert Tree F-2 into a
work of public improvement. Like the Ordinance, the Master Street
Tree Plan was adopted several decades after Tree F-2 was planted. In
addition, the Master Street Tree Plan does not contain specific design,
maintenance, or removal requirements—it only establishes a general
policy favoring uniformity among the trees that are planted on each of
the City’s streets.
19
Nor is there any evidence that the City’s tree maintenance
plan established a taking for inverse condemnation purposes. To
establish an inverse condemnation claim based on a government
entity’s maintenance of one of its improvements, the property
owner must show that the plan of maintenance was deficient in
light of a known risk inherent in the improvement. (See Paterno,
supra, 74 Cal.App.4th at pp. 87, 90 [distinguishing between a
negligent government policy or plan and negligent conduct by
government employees]; see also Arreola v. County of Monterey
(2002) 99 Cal.App.4th 722, 742 [“So long as the entity has made
the deliberate calculated decision to proceed with a course of
conduct, in spite of a known risk, just compensation will be
owed.”].) For example, in Pacific Bell and McMahan’s of Santa
Monica v. City of Santa Monica (1983) 146 Cal.App.3d 683,
disapproved on other grounds in Bunch v. Coachella Valley Water
Dist. (1997) 15 Cal.4th 432, 443, the cities were held inversely
liable for flooding damage caused by the cities’ water-main pipes
where the cities employed policies of waiting until the pipes broke
or malfunctioned before replacing them. Liability in both of those
cases turned on the fact that the cities’ plans for remedying
known risks in their water-main systems were inadequate.
(Pacific Bell, supra, 81 Cal.App.4th at pp. 607–610 [upholding
inverse condemnation claim based on break in a cast-iron city
water pipe; city was aware all such pipes needed to be replaced,
but maintained a policy of waiting until a pipe broke before
replacing it]; McMahan’s of Santa Monica, supra, 146 Cal.App.3d
at pp. 696–698 [damage caused by break in city-operated water
main that had been in use 51 years despite an assumed lifetime
of 40 years; maintenance program to replace pipes itself was
inadequate].)
In this case on the other hand, the City’s five-year cycle for
inspecting and caring for City trees was not only adequate, the
20
undisputed evidence established that it exceeded the standards
used by most other cities. In other words, there is no evidence
that the City made “ ‘a deliberate policy decision to shift the risk
of future loss to private property owners rather than to absorb
such risk as a part of the cost of the improvement paid for by the
community at large.’ ” (Paterno, supra, 74 Cal.App.4th at p. 86.)
In sum, we conclude that Tree F-2 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. We also conclude that the City’s tree maintenance plan, as
implemented by the City Manager under the Ordinance, does not
subject the City to liability for an inverse condemnation claim
because no evidence was presented that the plan was deficient.
Because the City could not be held inversely liable for the
damage caused to the Dusseaults’ home by the tree, we reverse
the judgment.
14 Our holding, of course, does not immunize the
City from all forms of liability for damage caused by its trees. In
a case like this, a property owner (or subrogee) may still sue the
public entity for, among other claims, dangerous condition of
public property. (See Gov. Code, § 835; see also Milligan v. City
of Laguna Beach (1983) 34 Cal.3d 829, 834 [a public entity is not
immune from liability for a dangerous condition of public
property created by a city-owned tree that damaged adjacent
private property].)

14 In light of our holding, we do not reach the City’s arguments
that the court also erred in finding the tree proximately caused the
damage to the Dusseaults’ home and by rejecting its contention that
the November 2011 storm was a superseding cause that cut off the
City’s liability.

Outcome: The judgment and the post-judgment order awarding costs to Mercury are reversed. Upon issuance of the remittitur, the trial court shall enter judgment in favor of the City. The City shall recover its costs on appeal.

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