Defendant County of Contra Costa’s motion for summary judgment is denied. Defendant’s motion for summary adjudication of the first cause of action for inverse condemnation is denied. This case is not akin to DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329. In DiMartino, it was significant that the drainage pipe that was constructed under lots 36 and 37 (plaintiffs’ property) used the natural drainage channel across the property. Hence, the fact that the private pipe was connected to the City’s public drainage facilities under Tara Road did not change the natural flow of water which would be running across lots 36 and 37. Indeed, the DiMartino court specifically found that the water in question would have been contained “in the natural water course on the western edge of plaintiffs’ property.” Id. at 332.

Here, the record indicates the opposite. The water that is collected by the County’s catch basin on Berkeley Park Boulevard and subsequently channeled through private pipes, including the Trevino storm drain pipe, is not confined by the natural watercourse. Rather, the amount of water is far greater than the amount of water that would naturally occur in the watershed. Plaintiffs have submitted the testimony of an expert to that effect as well as the testimony of the County’s own maintenance and public works directors. See Ulrick Decl., paragraphs 4, 6; Mayer Decl., Exhibit A (Yee Depo. 30:12-20; Yee Depo. 31:1-32:3)

DiMartino is also distinguishable from this case because in DiMartino, the Court found that the purpose of the private pipe connected to the public portion of the drainage system under Tara Road was a private purpose. The Court specifically found that: “The purpose of the pipe appears to have been entirely private: to permit construction of private residences on lots 36 and 37, which otherwise would have been unbuildable due to waters flowing in a natural watercourse.” See DiMartino, supra, 80 Cal.App.4th at 344. Here, the purpose of the private pipes connected to the public drainage system at the top and bottom of the private pipes is clearly for a public use, namely, to alleviate the public safety hazards of storm drainage water. See Mayer Decl., Exhibit A (Yee Depo. 32:13-33:14) and Exhibit B (Avalon Depo. 17:24-19:8).

In the court’s view, this case is much closer to Marin v. City of San Rafael (1980) 111 Cal.App.3d 591 or Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783. In Marin, supra, 111 Cal.App.3d at 595-596, the appellate court found an implied acceptance of a private pipe attached to a public drainage system due to the City’s use of the land for a public purpose over a reasonable period of time. That is certainly the case here as the County has used the private pipes to connect their catch basins at the uphill drainage facility on Berkeley Park Boulevard and the downhill catch basin on Santa Fe Avenue. In both Skoumbas, supra, 165 Cal.App.4th at 783 and this case, the public entity owned the uphill road, the catch basin and the beginning of the pipe that later connected to the private pipes on private property that drained the surface water. In both cases, water was diverted from the hardscape above the catch basin in a greater amount than the natural watercourse and was done so for a public use, that is, to prevent a public safety hazard and/or damage to private property. In Marin and Skoumbas, the appellate courts found inverse condemnation liability.

Summary adjudication of the second cause of action for dangerous condition of public property and the third cause of action for nuisance are denied. The County has moved for summary adjudication of these two causes of action on the ground that it did not own or control the Trevino storm drain pipe. As set out above, the County has failed to establish this fact. Likewise, the exception set out in the CCP Section 337.15(e) appears to apply to prevent the ten year statute from barring Plaintiffs’ causes of action.

Defendant’s request for judicial notice is granted. See Evid. Code Section 452(c). Defendant’s request for judicial notice of Ordinance No. 1010-2.006, in reply, is also granted. See Evid. Code Section 452(b)

Plaintiffs’ evidentiary objections are ruled on as follows:

Declaration of Mitch Avalon
Paragraph 12, page 5, lines 1-4: Sustained — legal conclusion
Paragraph 14, page 5, lines 23-26: Sustained – legal conclusion

Declaration of Joseph Yee
Paragraph 10, page 4, lines 15-17: Sustained – legal conclusion
Paragraph 12, page 5, lines 7-10: Sustained – legal conclusion
Paragraph 17, page 7, lines 11-15: Overruled
Paragraph 20, page 8, lines 14-18: Overruled