Merits Reversal Hinged On City Not Bearing Responsibility For Private Pipeline Non-Maintenance Where City Refused A Public Dedication Offer.
In Ruiz v. County of San Diego, Case No. D074654 (4th Dist., Div. 1 March 17, 2020) (unpublished), Plaintiff homeowners obtained a $328,000 inverse condemnation award against the County of San Diego when their privately-owned underground storm drain pipe rusted out over 50 years of use. The trial judge, who entered the merits award, subsequently awarded plaintiffs $529,540.50 in attorney’s fees and costs under CCP § 1036, the inverse condemnation fee-shifting statute which can benefit plaintiffs.
Well, everything went POOF! on appeal. The 4/2 DCA decided that the merits judgment was infirm based on the city refusing a prior public dedication offer such that it had no maintenance or control over plaintiffs’ private pipeline. Much to their chagrin, plaintiffs also lost their fee/costs recovery—a reversal of fortune on appeal.
BLOG OBSERVATION—We bloggers will note that appeals by governmental authorities do seem to result in a higher reversal rate than non-governmental appeals, sometimes involving a reversal as a matter of law or a modification, which obviously impacts the adverse fee/costs recovery greatly—they go away completely or are remanded for a redetermination based on the modification on appeal.