Altest Corporation v. City of San Jose, et al.

Complaint Information

Evan W. Walker, SBN 303791

The Law Office of Evan W. Walker 888 Prospect St., Ste. 200

La Jolla, CA 92037

(858) 324-6606

evan@evanwalkerlaw.com

Attorney for Plaintiff

Electronically Filed

by Superior Court of CA, County of Santa Clara, on 5/1/2018 3:57 PM Reviewed By: A. Hwang Case #18CV324263 Envelope: 1473529

SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA

ALTEST CORPORATION,

PLAINTIFF

V. CITY OF SAN JOSE, COUNTY OF SANTA CLARA,

SANTA CLARA VALLEY WATER

DISTRICT, and DOES 1 to 50,

Defendants

Case Number: 18CV324263

FIRST AMENDED COMPLAINT FOR

DAMAGES:

-INVERSE CONDEMNATION [CAL. CONST. ART. 1§ 19];

-DANGEROUS CONDITION OF PUBLIC PROPERTY [GOVT CODE §

8351;

-BREACH OF MANDATORY DUTY

[GOVT CODE § 815.6]; -NEGLIGENCE [GOVT CODE § 815.2]; -PRIVATE NUISANCE;

-TRESPASS

Department: 19

Judge: The Honorable Peter H. Kirwan Action Filed: March 6, 2018

Trial Date: Not Assigned -

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PARTIES, VENUE, AND JURISDICTION

Plaintiff Altest Corporation (“Altest”) is a corporation licensed to do business in the State of California.

Defendant City of San Jose is a public entity under Govt Code § 811.2 (“City”). Defendant County of Santa Clara is a public entity under Govt Code § 811.2 (“County”).

Defendant Santa Clara Valley Water District is a public entity under Govt Code § 811.2 (“District”).

The true names of defendants sued as DOES 1 to 50 are unknown to Plaintiff, and are sued according to California Code of Civil Procedure § 474.

DOES 1 to 50 are liable to Plaintiff.

DOES 1 to 25 were the agents or employees of other names defendants and acted within the scope of that agency or employment.

DOES 26 to 50 are persons whose capacities are unknown to Plaintiff.

Plaintiff will seek leave of Court to amend this Complaint to allege such names

and capacities as soon as the information is ascertained.

. Every reference to Defendants, unless otherwise specified, refers to City, County,

District, and DOES 1 to 50, and to the employees and agents of each. Venue is this Court is proper under California Code of Civil Procedure § 395 because the property is located in Santa Clara County.

GENERAL ALLEGATIONS

. The flood lifts up their waves.

. At all relevant times, Altest owned or had an interest in real and personal

property located at 898 Faulstich Court, San Jose, California.

. January 2017 began with record rainfall and localized flooding in and around

Santa Clara County.

. Coyote Reservoir reached capacity several times. Lexington, Uvas, and Chesbro

Reservoirs also reached capacity and overflowed.

. Soil was saturated; further rain was imminent.

. Soon Coyote Reservoir began spilling over for the fourth time. Anderson

Reservoir reached capacity and began spilling too; upon information and belief, that occurred on February 18. The spillover began causing numerous issues

downstream.

. On February 21, Altest’s property flooded when water overflowed from Coyote

Creek. That same day an electrical malfunction disabled a pump station belonging to the City, causing Coyote Creek backwater to continue to flow into,

over, and through Altest’s property.

20.Upon information and belief, Defendants were responsible for the ownership,

21.

maintenance, management, operation, design, and control of the water conveyance system or the flood management project of which Anderson Reservoir and Coyote Creek are a part.

Upon information and belief, Defendants were responsible for warning Altest about the scope and magnitude of the impending deluge. 22, Upon information and belief, Defendants had notice before the February 21, 2017 flood that they should maximize available reservoir storage to lessen potential flood damages downstream to Anderson Reservoir (i.e. the “Rule Curve #307).

23. Upon information and belief, Defendants had notice before the February 21, 2017 flood that Anderson Reservoir failed to meet design standards intended to avoid spillover.

24.Upon information and belief, Defendants had notice of several flooding events involving the Anderson Reservoir and Coyote Creek before the February 21, 2017 flood.

25. Upon information and belief, Defendants had notice, based on prior evaluations over seismic concerns, that Anderson Reservoir’s water level should not exceed 68% of capacity.

26. Upon information and belief, Defendants began releasing water from Anderson Reservoir through the only available discharge gate in January; 68% capacity was not reached until January 22.

27. Upon information and belief, Defendants had notice based on past and contemporaneous events that Coyote Creek would soon flood.

28. Upon information and belief, Altest’s property flooded because, inter alia, Anderson Reservoir reached capacity and overflowed into Coyote Creek; Anderson Reservoir should not have reached capacity.

29. Altest was not duly warned about the scope and magnitude of the impending deluge. 30.Altest timely submitted the attached claims against the City, County, and District,

thereby complying with the Government Torts Claims Act. PLAINTIFF’S FIRST CAUSE OF ACTION AGAINST DEFENDANTS:

INVERSE CONDEMNATION

CAL. CONST. ART.18 19

31. Altest incorporates in this cause of action paragraphs 1 through 30.

32. Article I, § 19 of the California Constitution provides the basis for recovery against public entities when private property is taken for public use without just compensation.

33. Defendants physically invaded Altest’s property when their failure to construct or maintain or operate the water conveyance system or flood management project o which Anderson Reservoir and Coyote Creek are a part (“project”) caused Altest’s property to flood.

34.Because of Defendants construction or maintenance or operation of the project, water escaped and entered Altest’s property causing damage.

35. Defendants substantially participated in the project because they owned, maintained, designed, controlled, planned, and operated it. That project was a public one.

36.That is to say, upon information and belief, the project failed to function as intended and Altest’s property was proximately damaged as a result. That result was due to Defendants’ unreasonable conduct.

37. Defendants failed to maintain the project when they knew of maintenance 38.Defendants’ ownerships, maintenance, design, control, plan, and operation of the project was unreasonable. Such unreasonable conduct substantially damaged Altest’s property. And it caused Altest to bear a disproportionate share and burden of the damages caused by Defendants.

39.This was a taking. And it was for public use.

40.Altest has not been given just compensation for that taking. PLAINTIFEF’S SECOND CAUSE OF ACTION AGAINST DEFENDANTS:

DANGEROUS CONDITION OF PUBLIC PROPERTY GOVT CODE § 835

41. Altest incorporates in this cause of action paragraphs 1 through 40.

42.Upon information and belief, Defendants owned or controlled the project including, but not limited to, the channels, outlets, drains, banks, and related property (“the property”) at all relevant times.

43. Upon information and belief, the property was in a dangerous condition at the time of the February 21 flooding because, inter alia, Anderson Reservoir had reached capacity and, based on past and contemporaneous events, Defendants knew that Coyote Creek would soon flood.

44.Upon information and belief, it therefore presented a substantial risk of injury to members of the general public even when the property was used with reasonable care and in a reasonably foreseeable manner.

45. Defendants had the power to prevent, fix, and guard against that dangerous

condition. 46.That dangerous condition created a reasonably foreseeable risk of injuring another’s property, which is exactly what happened to Altest when its property was flooded.

47. Negligent conduct of Defendants’ employees acting within the scope of employment created that condition.

48.And Defendants had notice of the dangerous condition for enough time to have protected against it.

49.Altest was harmed.

50.That dangerous condition was a substantial factor in causing that harm. PLAINTIFF’S THIRD CAUSE OF ACTION AGAINST DEFENDANTS:

BREACH OF MANDATORY DUTY

51. Altest incorporates in this cause of action paragraphs 1 through 50.

52. Upon information and belief, Defendants violated Government Code § 8607 by not using the standardized emergency management system specified in the statute when the January and February, and especially the February 21, flooding occurred.

53. Plaintiff was harmed by that violation.

54. Defendants’ failure to follow Government Code § 8607 was a substantial factor in causing Plaintiff’s harm.

55. Upon information and belief, Defendants violated California Code of Regulations, Title 19, § 2405 by not utilizing the Incident Command System specified in the regulation when the January and February, and especially the

February 21, flooding occurred. 56. Plaintiff was harmed by that violation.

57. Defendants’ failure to follow California Code of Regulations, Title 19, § 2405 was a substantial factor in causing Plaintiff’s harm.

58. Upon information and belief, Defendants violated California Code of Regulations, Title 19, § 2407 by failing to 1) utilize the emergency system set out in California Code of Regulations, Title 19, § 2403; and 2) establish communication and coordination as required by California Code of Regulations, Title 19, § 2407 by, inter alia, an overall lack of communication and coordination between Defendants with respect to the localized flooding in and around Santa Clara County as detailed above.

59. Plaintiff was harmed by that violation.

60.Defendants’ failure to follow California Code of Regulations, Title 19, § 2407 was a substantial factor in causing Plaintiff’s harm.

61. Upon information and belief, Defendants violated California Water Code § 6101 by failing to advise the Division of Safety of Dams of the unprecedented flood as detailed above, as well as the unusual or alarming circumstances affecting the Anderson Reservoir, also as detailed above.

62. Plaintiff was harmed by that violation.

63. Defendants’ failure to follow California Water Code § 6101 was a substantial

factor in causing Plaintiff’s harm. PLAINTIFF’S FOURTH CAUSE OF ACTION AGAINST DEFENDANTS:

NEGLIGENCE

GOVT CODE § 815.2

64.Altest incorporates in this cause of action paragraphs 1 through 63.

65. Defendants had a duty to exercise reasonable care in regard to the ownership, maintenance, design, control, plan and operation of the water conveyance system or flood management project of which Anderson Reservoir and Coyote Creek are a part.

66. Defendants breached that duty when their actions caused Plaintiff’s property to flood.

67. Defendants had a duty to exercise reasonable care in regard to warning Altest about the scope and magnitude of the impending deluge.

68.Defendants breached that duty when their actions caused Plaintiff’s property to flood without an adequate prior warning.

69.The City had a duty to exercise reasonable care in regard to its pump station.

70. The City breached that duty when it allowed a disabled pump station to cause Coyote Creek backwater to flow into, over, and through Altest’s property.

71. These breaches caused Altest’s damage.

72. That is to say, Defendants were negligent, Altest was harmed, and Defendants’

negligence was a substantial factor in causing that harm. PLAINTIFF’S FIFTH CAUSE OF ACTION AGAINST DEFENDANTS:

PRIVATE NUISANCE

73. Altest incorporates in this cause of action paragraphs 1 through 72.

74. Defendants’ actions or inactions created a condition that obstructed the free use of property, so as to interfere with the comfortable enjoyment of that property.

75. That condition interfered with Altest’s use and enjoyment of its land.

76. Of course Altest did not consent.

77. Ordinary persons would be reasonably annoyed and disturbed by Defendants’ actions or inactions.

78. Altest suffered harm, and Defendants’ actions or inactions were a substantial factor in causing that harm.

79. Any public benefit of Defendants’ actions or inactions were outweighed by the

seriousness of the harm. PLAINTIFF’S SIXTH CAUSE OF ACTION AGAINST DEFENDANTS:

TRESPASS

80.Altest incorporates in this cause of action paragraphs 1 through 79.

81. Defendants negligently or recklessly caused water to enter Altest’s property. 82.Altest did not give permission for that entry.

83.Altest was harmed, and Defendants’ conduct was a substantial factor in causing

that harm. WHEREFORE, Plaintiff demands judgment from Defendants as follows: As to all Causes of Action,

To enter judgment for Plaintiff on these Counts;

For compensatory damages in the amount of $3,000,000.00;

For judicial interest;

For costs of suit; and

For such other and further relief as this Court may deem proper. In addition,

As to the First Cause of Action, prejudgment interest, reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees per Code

of Civil Procedure § 1036; and

As to the Sixth Cause of Action, general damages for mental anguish.