Mercury Casualty Company v. City of Pasadena

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.”

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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

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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.

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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’

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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

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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

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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

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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

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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’

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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

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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.

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.