This case was last updated from Santa Clara County Superior Courts on 08/07/2019 at 18:19:56 (UTC).

Falconio, et al. v. Santa Clara Valley Water District, et al. (Consolidated into Lead Case No. 18CV322210)

Case Summary

On 03/20/2018 Falconio filed an Other - Complex Tort/Class Action lawsuit against Santa Clara Valley Water District, Consolidated into Lead Case No 18CV322210. This case was filed in Santa Clara County Superior Courts, Downtown Superior Court located in Santa Clara, California. The Judges overseeing this case are Walsh, Brian C and Kirwan, Peter. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ******5153

  • Filing Date:

    03/20/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Complex Tort/Class Action

  • Court:

    Santa Clara County Superior Courts

  • Courthouse:

    Downtown Superior Court

  • County, State:

    Santa Clara, California

Judge Details

Judges

Walsh, Brian C

Kirwan, Peter

 

Party Details

Plaintiffs

Falconio, Renay

Flores, John

Case, Jill

Demers, Manon

Lan Phu, Phuong

Ruiz, Luis

Bronze, Brenda

Rios, Sylvia

Falconio, Patrick

Grota, Carmen

La, Chanh

Grota, Manuel

Defendants

City of San Jose

Santa Clara County

Santa Clara Valley Water District

Other

Superior Court of Calfiornia

Attorney/Law Firm Details

Plaintiff Attorney

Hawes, Amanda

Other Attorney

Superior Court of CA, County of Santa Clara

 

Court Documents

Notice

Notice CMC 10-5-18 at 10am in D19: Comment: CMC set for 10/5/18 at 10am in D19 (16 related cases)

Notice

Notice CMC reset to 6-8-18 at 10am in D19: Comment: CMC reset to 6/8/18 at 10am in D19

Order

Order & Notice of Reassignment of Case to Dept 19: Comment: Order & Notice of Reassignment of Case to Dept 19, Hon. Peter H. Kirwan presiding - signed/TCZ

Summons: Issued/Filed

Summons Issued Filed:

Notice: Related Cases

Notice of Related Case:

Civil Case Cover Sheet

Civil Case Cover Sheet:

Complaint (Unlimited) (Fee Applies)

Complaint (Unlimited) (Fee Applies):

 

Docket Entries

  • 10/12/2018
  • Reserved: Demurrer - Judicial Officer: Kirwan, Peter; Hearing Time: 10:00 AM; Cancel Reason: Vacated; Comment: Demurrers, Motions to Strike

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  • 10/05/2018
  • Conference: Case Management - Judicial Officer: Kirwan, Peter; Hearing Time: 10:00 AM; Cancel Reason: Vacated

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  • 06/25/2018
  • View Court Documents
  • Notice - Notice CMC 10-5-18 at 10am in D19: Comment: CMC set for 10/5/18 at 10am in D19 (16 related cases)

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  • 06/08/2018
  • Conference: Case Management - Judicial Officer: Kirwan, Peter; Hearing Time: 10:00 AM; Cancel Reason: Vacated; Comment: (1st CMC)

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  • 04/03/2018
  • View Court Documents
  • Notice - Notice CMC reset to 6-8-18 at 10am in D19: Comment: CMC reset to 6/8/18 at 10am in D19

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  • 04/03/2018
  • View Court Documents
  • Order - Order & Notice of Reassignment of Case to Dept 19: Comment: Order & Notice of Reassignment of Case to Dept 19, Hon. Peter H. Kirwan presiding - signed/TCZ

    Read MoreRead Less
  • 03/22/2018
  • View Court Documents
  • Summons: Issued/Filed - Summons Issued Filed:

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  • 03/22/2018
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  • Notice: Related Cases - Notice of Related Case:

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  • 03/22/2018
  • View Court Documents
  • Civil Case Cover Sheet - Civil Case Cover Sheet:

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  • 03/20/2018
  • View Court Documents
  • Complaint (Unlimited) (Fee Applies) - Complaint (Unlimited) (Fee Applies):

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Complaint Information

AMANDA HAWES (CA STATE BAR NO. 42800

mandyhawes10@gmail.com Law Office of Amanda Hawes

123 East San Carlos Street, # 452 San Jose, CA 95112 Telephone: 415-987-1776

E-FILED

3/20/2018 5:32 PM Clerk of Court

Superior Court of CA, County of Santa Clara

18CV325153

Reviewed By: R. Walker

M. SUZANNE MURPHY (CA STATE BAR NO. 145657)

smurph7878@aol.cm Law Office of M. Suzanne Murphy

1547 Palos Verdes Mall, # 418 Walnut Creek, CA 94597 Telephone: 925-286-4810

SUPERIOR COURT OF CALIFORNIA,

COUNTY OF SANTA CLARA

Patrick and Renay FALCONIO; Brenda No. BRONZE; Jill CASE; John FLORES and Manon DEMERS; Manuel and Carmen GROTA; Chanh LA and Phuong LAN COMPLAINT FOR INVERSE

PHU; Sylvia RIOS; Luis RUIZ

Plaintiffs, V. Santa Clara Valley Water District; The City of San Jose; Santa Clara County; and DOES 1 through 100,

Defendants.

CONDEMNATION, BREACH OF MANDATORY DUTY, NUISANCE, NEGLIGENCE, TRESPASS, DANGEROUS CONDITION OF PUBLIC PROPERTY;

NEGLIENT INFLICTION OF EMOTIONAL

DISTRESS; INTENTIONAL INFLITION OF IE{I]\E/II%E;‘ONAL DISTRESS and INJUNCTIVE

JURY TRIAL DEMANDED

NATURE OF THE CASE

L. This action arises out of the devastating flooding that occurred along Coyote Creek in and around San Jose, California on or about February 21, 2017 as a result of the overtopping of the public works project known as the Leroy Anderson Dam (“Anderson Dam” or “the Dam™) which caused Coyote Creek to overflow its banks and thereby discharge water, dirt and debris onto and across Plaintiffs’ properties, damaging Plaintiffs’ real and personal property and causing personal injury and other consequential damages as alleged herein.

2. The catastrophic overspilling of Anderson Dam and flooding of Coyote Creek was the direct and proximate result of Defendants’ failure to properly and reasonably design, control, maintain and operate both the Dam and Coyote Creek.

3. The flooding along the Coyote creek was exacerbated by Defendant City’s failure to:

1) properly design and maintain its storm sewers; 2) properly design and maintain the flapper valves along the creek; and 3) properly design and construct the city park in Rock Springs, thereby enabling the water from the creek to overflow its banks; and 4) prioritize affordable housing for poor and working families - especially those displaced by flooding - thereby subjecting Plaintiffs and their neighbors to additional trauma and distress.

+. The damage and injury caused by the February 21, 2017 flooding was also the direct and proximate result of Defendants’ failure to properly give timely notice to residents including Plaintiffs and their families despite Defendants’ actual knowledge of a dangerous condition of public property including inter alia that Anderson Dam was going to overtop and, inevitably, flood the areas along its banks.

5 Even a few hours advance warning of what Defendants knew was happening would have substantially reduced losses of personal property and emotional distress and would have provided real opportunities to secure and protect real property and to secure medications

upon which several Plaintiffs relied to maintain their health. 10.

Plaintiffs, and each of them, have suffered an injury in an amount within the jurisdiction of the court.

PLAINTIFFES

Plaintiffs are all victims of the Coyote Creek Flood of 2017 and the actionable government conduct that caused the flood and plaintiffs’ damage and injury. Each Plaintiff owned real property and/or personal property that was damaged in the flood. Some plaintiffs suffered personal injuries and/or consequential damages as a consequence of the flood and/or the failure of government agencies to give notice of the flood despite the fact that Defendants and each of them knew or should have known that the flood was going to occur and was occurring in time to prevent or limit damage and injuries to the Plaintiffs and their property. In addition, Plaintiffs suffered such foreseeable consequential damages as lost wages, loss of irreplaceable heirlooms and family treasures, medical costs, and extra expenditures for housing, food and transportation.

Each Plaintiff was a resident of California who at the time of the flood resided in and/or owned real property in the City of San Jose, County of Santa Clara, California. In addition to losing (and/or suffering diminution in the value of) real and personal property, each Plaintiff also suffered substantial emotional distress and other consequential damages from these devastating losses and disruptions.

Plaintiffs Patrick and Renay FALCONIO, Jill CASE, Chanh LA and Phuong LAN PHU identified herein filed timely claims pursuant to Government Code Section 911.2 against the

Water District, the City of San Jose and Santa Clara County, which claims set forth the circumstances upon which this action is based. Each of the Defendant public entities with which claims have been filed has expressly or by inaction denied Plaintiffs’ claims.

DEFENDANTS

Defendants are those governmental agencies who own and/or are responsible for the design, maintenance, management, supervision, and/or operation of Anderson Dam and Reservoir, as well as related structures such as the outlet valve and the spill ways designed to manage and draw down the level of water in Anderson Reservoir. Defendants are also responsible for the 14.

management of the area referred to as the Coyote Creek watershed area. Likewise, Defendant agencies are responsible for warning residents of and protecting them from imminent danger to their homes, their health, their possessions, and their well-being, Defendant Santa Clara Valley Water District (“the District™) is a public agency that operates as a special district that controls and is legally responsible for flood control throughout Santa Clara County and in particular the design, construction, maintenance, management and operation of Anderson Dam and Reservoir and relevant portions of Coyote Creek.

Defendant City of San Jose (“San Jose™ or “the City™) is a Charter City that is responsible for providing timely emergency services to its residents and for giving reliable and timely notice to its residents of dangerous situations it knows are about to take place or are taking place. Defendant City of San Jose also controls and is legally responsible for the maintenance and management of relevant portions of Coyote Creek.

Defendant County of Santa Clara (“Santa Clara County”) has a long history of oversight of flood control within the entirety of Santa Clara County, dating back to the time when the area was called “the Valley of Heart’s Delight” due to its rich agricultural past. For many decades Defendant Santa Clara County has had a significant, widely-recognized role and responsibility in the oversight of county-wide governmental policy and action on both water conservation and flood control.For example, in or about 1952 the Board of Supervisors of Defendant Santa Clara County formed the Santa Clara County Flood Control and Water Conservation District (“SCCFCWCD?”), with the boundaries of the SCCFCWCD encompassing all of Santa Clara County. In 1964, the SCCFCWCD changed its name to Santa Clara County Flood Control and Water District (“SCCFCWD?), dropping the word “Conservation.”

Then in or about 1968, recognizing the need for specialized knowledge to oversee construction and operation of water and flood control facilities, the Board of Supervisors of Defendant Santa Clara County effectuated and approved the merger of the Santa Clara Valley Water Conservation District and the Santa Clara County Flood Control and Water District (SCCFCWCD). 16.

The new agency that resulted from this merger retained the name of the SCVWD and the elected board of the SCVWCD, but also added two appointees named by the Board of Supervisors of Defendant County. Staffs of the agencies were combined, and a countywide agricultural advisory committee and water commission were established so that the merger enabled integrated resource management, addressing both water supply and flood control through one county-wide agency, and eliminated duplication of effort. In 1974, Santa Clara County Flood Control and Water District changed its name to the Defendant District’s current name — Santa Clara Valley Water District (SCVWD).

Based on the above historical record, Defendant County of Santa Clara has, and/or at times relevant to this action, has had, legal responsibility for the design, construction, maintenance, management and operation of Anderson Dam and Reservoir and relevant portions of Coyote Creek.

Defendant County of Santa Clara also has legal responsibility for coordinating emergency services throughout Santa Clara County and for protecting and preserving public health throughout Santa Clara County. As the sole provider of public health services for both Santa Clara County and the City of San Jose (the County Public Health Officer is also the Public Health Officer for the City of San Jose), Defendant County of Santa Clara has legal responsibility for (a) protecting and preserving public health throughout Santa Clara County, including within the City of San Jose, (b) protecting the residents of Santa Clara County from environmental health hazards including residents of the City of San Jose; and (c) notifying at risk residents of Santa Clara County of an impending public health and safety disaster such as a flood, including residents of the City of San Jose when they are the persons at risk of such impending disaster.

Defendants DOES 1 through 100, inclusive, are persons and entities, and all agents, employees of said entities (a) charged with and/or engaged in some manner in the control, management, supervision, oversight, maintenance, operation, design, redesign, construction, and/or ownership of Anderson Dam and Reservoir and/or Coyote Creek; and/or (b) are responsible in some manner for the use, deployment, maintenance, testing of emergency notification system(s) or procedures or both and/or (c) responsible for the identification of approval or, and/or deployment of flood control devices, mechanisms and/or procedures. Notwithstanding their responsibilities as set forth in para 18 above, DOES 1 through 100 failed to oversee, supervisor or deploy and/or approve appropriate flood control devices, measures or mechanisms and/or procedures despite the ability, knowledge and authority to do so. DOES 1 through 100 were negligent or otherwise responsible for the damage and injuries to Plaintiffs, in spite of their knowing of the hazardous conditions present. At all times mentioned herein, each of the Defendants was the agent of each of the other Defendants, and at all times acted with the scope and purpose of their agency, and each Defendant has ratified the acts of his agent. Plaintiffs are unaware of the true nature and capacities of Defendants DOES 1 through 100, inclusive, and therefore sue those Defendants under fictitious names. Plaintiffs will seek leave to amend this complaint to allege their true names and capacities when ascertained. Plaintiffs are informed and believe and on that basis allege that each of these fictitiously named Defendants is legally responsible for the tortious conduct alleged herein, and Plaintiffs’ damages as alleged herein were proximately caused by said Defendants.

JURISDICTION AND VENUE

The amount in controversy exceeds the minimum jurisdictional limit for Superior Court Unlimited Jurisdiction. Venue is proper in Santa Clara County because one or more Defendants reside in Santa Clara County, are subject to the personal jurisdiction of the Court, and because the injury and damage to Plaintiffs occurred and took place within the jurisdictional area of this Court.

APPLICABLE LAW

California State law applies to all claims in this action.

ALLEGATIONS REGARDING THE HISTORY OF ANDERSON DAM AND COYOTE CREEK

Coyote Creek, which measures approximately 63 miles in length, is the longest stream and drains the largest watershed in Santa Clara County and is located within the over 320 square

6 mile watershed system managed by the Water District. Water stored in Coyote and Anderson Reservoirs, both of which are owned and managed by the Water District, drains into Coyote Creek, which terminates in the San Francisco Bay north of and near the community known as Alviso. Portions of Coyote Creek are located within unincorporated areas of the County of Santa Clara, and other portions are located within the jurisdictional boundaries of the City

of San Jose.

A. When Anderson Dam Overtops, Coyote Creek Floods Properties Around its Banks.

26.

Anderson Dam was constructed in 1950, and has a capacity of approximately 91,000 acre feet, more than all of the other reservoirs owned and maintained by the Water District in Santa Clara County combined.

Since its construction in 1950, there have been approximately 13 major flooding events along Coyote Creek, including the flooding in February 2017. Each of these incidents resulted in preparation of a flood report by or for the Water District.

Since 1950, each time Anderson Dam has filled and overspilled, significant flooding has occurred along and within the “reaches” of Coyote Creek between Tully Road to the south and Montague Expressway to the north, sometimes referred to as the “mid-Coyote Creek reach” (area). In contrast, when Anderson Dam has not overspilled, no flooding has occurred within the mid-Coyote Creek area.

In March/April 1982, Anderson Dam overtopped. Coyote creek overtopped its banks and significant flooding occurred along Coyote Creek. As documented in the 1982 Flood Report from the Water District, “Coyote Creek flooded a large area during this storm.”

In 1983, Anderson Dam overtopped and significant flooding occurred along Coyote Creek. As noted in the Flood Report prepared by the Water District, Coyote Creek flooded in San Jose between Highway 237 and the Bay on both the west and east sides of the creek.

In 1997, Anderson Dam overtopped and significant flooding occurred along Coyote Creek -

including in the Rock Springs area affected by the Coyote Creek flood of 2017. In 1998, Anderson Dam overtopped and significant flooding occurred along Coyote Creek. According to the 1998 Flood report prepared by the Water District, Golden Wheel mobile home park was “inundated” and residents were evacuated.

Concerns over seismic stability led to an evaluation of Anderson Dam which was completed in 2011. It determined that the downstream and upstream embankments could become unstable during a very large magnitude earthquake and that the rupture of faults underlying the dam could have adverse impact on the outlet pipe and intake structure. As the District notes: “A breach of Anderson Dam at full capacity could have catastrophic consequences, including inundation and other significant impacts to surrounding land more than 30 miles northwest to San Francisco Bay, and more than 40 miles southeast to Monterey Bay.

* (Source: http://www.valleywater.org/SCW-C1.aspx)

As a result, a 45-foot restriction was approved by the regulatory agencies (California Division of Safety of Dams “DSOD”and the Federal Energy Regulatory Commission “FERC”) in order to minimize the likelihood of a catastrophic dam rupture and massive flood. This restriction meant that the District was responsible for keeping the water level in

the Reservoir at no more than 68% of capacity.

ALLEGATIONS REGARDING THE COYOTE CREEK FLOOD OF 2017

B. Defendants Knew Anderson Dam Was Going to Overtop and, Therefore, That Coyote

I,

Creek Would Flood, But Did Not Warn or Protect Residents — Including Plaintiffs and Their Families — From Preventable Harm to Their Persons and Property.

In response to forecasts by the National Weather Service predicting substantial rainfall in January 2017, the Water District started releasing water from Anderson Dam through the only discharge gate, which has a capacity of only around 425 cubic feet per second (“cfs™), on or around January 9, 2017. Despite these efforts to reduce the water level behind the Anderson Dam, the level in Anderson Reservoir reached the 68% restricted capacity level on

or around January 22, 2017. The County Office of Emergency Services (OES) established an Operational Plan Period from February 15 to February 21,2017. On February 15, 2017, a full six days before the Coyote Creek flooding at issue here, the County wrote and shared with San Jose and, upon information and belief, the Water District, the following Overview of the Operational Plan Period: “During the 2016-2017 winter storm season, Santa Clara County has received significantly more rain than in past years. Due to the multiple winter storms Santa Clara Valley Water District (SCVWD) total reservoir storage is about 95.5% of capacity at spillway crest, at 130% of restricted capacity, and at 165% of the 20 year average for the current month. SCVWD is currently releasing water from 8 reservoirs and 2 reservoirs are spilling in addition to the controlled releases. It is expected that Anderson Dam will begin spilling prior to or during the next series of storm systems. (Emphasis added)”. Based, inter alia, on the history of prior floods (recited above), all of the Defendants knew or should have known that Coyote Creek would flood as soon as Anderson Dam started to spill. The first conference call during the Operational Plan period was held the same day, at 2:00 pm on February 15* Representatives from the City of San Jose participated in that call. On February 16% at 1:00 pm, County OES coordinated another call. Again, City of San Jose representatives participated. On this call, the Water District reported that Anderson Dam was at 99.2% of capacity. On the same call, representatives of the City of San Jose reported “coordinating with city departments to identify potential evacuation center and shelter locations in the event of Coyote Creek Flooding™. On February 17, four days before the Coyote Creek flooding, County OES coordinated an additional call. Representatives of San Jose and the Water District both participated. The National Weather Service reported on that call that there would potentially be 4 inches of rain in the mountains and 3 inches in the foothills. On that same call, the Water District reported a “concern for Monday storm on Coyote Creek. Projected 7000 cubic feet per second (cfs) peak spillway flow. Sycamore Bridge floods at approx.. 5900 cfs...Anderson

9 Dam is releasing at 500 cfs — when spillway reaches 2000 cfs, the outlet release will be closed.” On the same call, San Jose representatives reported that calls about downed trees had increased.

On or about February 18, 2017 Anderson Dam began to overspill. Based on the decades of flood history of Anderson Dam, Defendants knew or should have known that flooding along the Coyote Creek was imminent.

On February 20 at 8:30 a.m., one day before the flood, County OES coordinated another conference call. Representatives of the Water District and San Jose participated. The overview for the call warned, “The potential for copious amounts of rainfall which could cause widespread flooding exists with this system’” (Emphasis added). On the same call, the Water District warned, “4 reservoirs are spilling, Anderson, Uvas, Lexington and Coyote.” San Jose reported on the same call that its Emergency Operational Center had been activated and that it was “monitoring reservoirs and streams”.

On the same day, February 20, at 2:13 p.m., the Water District sent an email to the City of San Jose and the County stating that with respect to Coyote Creek, “Peak spill flow forecasts are now between 7k and 9k cfs, and might be sustained depending on the rainfall pattern. With respect to Coyote Creek Flood Thresholds, the Water District said, “7,400 cfs — Rock Spring Neighborhood”.

Later that same day, February 20, 2017, County OES coordinated another call at 3:00 p.m.. representatives of the City of San Jose, the Water District and the National Weather service all participated. The Water District reported “4 reservoirs continue to spill. Anderson now projected peak flow is 7,000-9,000 CFS between 6-10am Tuesday with 12-24 hours of peak flow. Spillway flow to downtown San Jose on Coyote Creek is roughly a 6 hour delay.” The City of San Jose reported that it had rescued two urban campers, opened two evacuation centers and that the Red Cross had opened two as well. Plaintiffs still were not notified that flooding was imminent and essentially certain.

The next day, the day of the flood, February 21, 2017, County OES coordinated another call

with representatives of San Jose and the Water District in attendance at 9:00 a.m. The Water District reported that seven reservoirs were spilling including Anderson. The City of San Jose reported that “Rock Springs neighborhood is flooded” and that it “will be issuing messaging along Coyote Creek™.

San Jose Mayor Sam Liccardo acknowledged that the city failed to adequately warn the residents in advance of the floods and the city has repeatedly accepted responsibility for fixing the problem. Liccardo repeatedly reiterated that the city made mistakes.“We have repeatedly acknowledged our failure to properly notify residents of the risk of flooding and for relying too heavily on the creek flow data provided by the water district,” Liccardo said.

(Source: https://www.mercurynews.com/2017/06/12/san-jose-flood-victims-file-claims-as-

new-records-show-city-staff-tried-to-sound-alarm-before-flooding/)

Mayor Liccardo also told NBC Bay Area News that more could have been done to prevent such a calamity from happening and that he accepted the blame: "There's been a failure," he said Sunday. "I've said repeatedly, if it happened in my city, I'm responsible. (Source: http:/ www.nbclosangeles.com/news/california/San-Jose-Flooding-Damage-Cost-414864693.html, Published Tuesday, Feb. 28, 2017).

City employees knew that flooding was going to occur or was actually occurring along Coyote Creek in February, long before the City issued any evacuation orders or sent any type of emergency notification to residents.

Various City employees tried to alert their supervisors within the City's emergency response system yet nothing was done in a timely manner, and by the time that the city finally issued evacuation orders, the flood had already inundated 3 neighborhoods - Rock Springs, Olinder/ William, and the Golden Wheel and South Bay mobile home parks.

Many flood victims were terrified by emergency orders to evacuate their homes under traumatic conditions after their homes were already flooded. Many were removed from their homes in boats by the San Jose Fire Department. Many had this trauma compounded by being taken to city emergency shelters which were overrun with sickness, children

vomiting, and other unsafe, unsanitary and hazardous conditions. Sk

An independent analysis done by emergency management consultant Witt O’Brien concluded that San Jose’s response to the devastating Coyote Creek Flood of 2017 included repeated mistakes that were made in a similar Coyote Creek flood in January 1997 and that the City relied too heavily on flood projection figures from the Santa Clara Valley Water

District.

C. Defendant Water District Made a Plan to Pump Water Out of Anderson to Prevent

52,

33.

54.

Flooding, But Failed to Implement it.

Starting on or about January 9, 2017 (a month and a half before the flood), the Water District began releasing water from Anderson Dam through its outlet valve due to concerns about the amount of rain that had already fallen as well as weather reports that were predicting huge amounts of rain as part of a weather system called an “atmospheric river” by the National Weather Service. The District also tracked and monitored the rise in water levels at Anderson Reservoir, but failed to take timely action to obtain and install pumps to reduce the steadily-increased water levels at Anderson Reservoir in order to prevent overtopping.

Despite the predicted storms and the fact that, as of January 22, 2017, Anderson was already in excess of its 68% restricted capacity prescribed by the California Division of the Safety of Dams (described above in paragraphs 28 and 29), the Water District was in active denial of the urgency of controlling water levels at Anderson, in spite of the fact that the District had used pumps in the past to reduce water levels at its other reservoirs. Its dilatory approach is illustrated by the following January 22, 2017 communication by a District representative: “we are not planning to install the pump-over just yet, but we are preparing for the potential possibility by obtaining approvals from the regulators beforehand.”

Had the District made plans for a pump over solution and obtained necessary permits in a

timely manner, they could have prevented (or significantly reduced the impact of) the flood.

12 59,

The Defendants’ abject failure for many decades to do anything to correct and eliminate the known risk of overtopping of Anderson Dam and flooding along Coyote Creek led to the

catastrophic losses as complained of herein.

FIRST CAUSE OF ACTION

(Inverse Condemnation) All Plaintiffs v. All Defendants

Plaintiffs re-allege and incorporate herein by reference each and every allegation of the foregoing paragraphs as if fully set forth.

As a direct and proximate result of Defendants’ unreasonable acts and/or omissions as described herein, Anderson Dam posed an unreasonable risk of harm to Plaintiffs, which led to the discharge of water, silt, sewage and debris upon and across the properties Plaintiffs owned or occupied, damaging and diminishing the value of their real and/or personal property.

Defendants’ taking of and damaging Plaintiffs’ real and personal property constituted a taking for a public use and purpose without just compensation. Such taking without compensation has caused Plaintiffs to bear an unfair and disproportionate share and burden of the damage caused by the abject failures of Defendants in violation of Article 1, Section

19 of the California Constitution.

A K

(Failure to Perform and Violation of Mandatory Duties)

Plaintiffs Patrick and Renay FALCONIO, Jill CASE, Chanh LA and Phuong Lan PHU

v. All Defendants

Plaintiffs re-allege and incorporate herein by reference each and every allegation of the foregoing paragraphs as if fully set forth.

At all times alleged herein, Defendant the Water District, Defendant County of Santa Clara and DOES 1 through 100 substantially participated in the design, planning, approval, construction, and/or operation of the flood control system of which Anderson Dam is a part, and were obliged to adequately and properly maintain Anderson Dam and Reservoir as well

as the Coyote Creek watershed, pursuant inter alia to the California Water Code. At all times alleged herein, Defendants, and each of them, were charged with the responsibility for the maintenance, inspection, repair, and supervision of Coyote Creek.

At all times alleged herein Defendant Santa Clara County was the agency responsible under federal law with managing and operating the Integrated Public Alert & Warning System (“IPAWS”) system for the benefit and protection of residents in its jurisdiction in the event of an impending disaster. Defendant Santa Clara County failed to use that system to warn Plaintiffs, in spite of clear evidence that a serious flood was imminent. Upon information and belief, Defendant Santa Clara County made representations to elected and appointed officials representing Plaintiffs that IPAWS would be effectively deployed in such an emergency.

At all times alleged herein, Santa Clara County had a mandatory duty to preserve and protect the public health within its borders. Santa Clara County has also had, at all times relevant, a mandatory duty to protect and preserve environmental health. The County recognizes and acknowledges this duty and obligation; the County Environmental Health Agency includes in its program and services disaster preparedness, disaster relief, and mold relief. Moreover, by agreement between Santa Clara County and the City of San Jose, the County’s Chief Public Health Officer serves as the Chief Public Health Officer for the City of San Jose. Despite the County’s prescribed duties and responsibilities and the explicit agreement whereby the County’s Chief Public Health Officer also serves as the Chief Public Health Officer for the City of San Jose, Santa Clara County failed to provide timely, clear and effective warnings, personal protection, personal assistance, emergency preparedness information or functional support of relief to residents of the City of San Jose who were inundated by sewage-laden toxic flood waters and struggled to preserve and protect themselves, their families, their homes and their possessions

Inundated San Jose residents including Plaintiffs were, unbeknownst to them, in harm’s way from prolonged contact with flood water — directly by being in flood water, and indirectly through contact with flood-saturated personal property, and/or through efforts to remove standing flood water and/or clean soaked walls or other breeding grounds for toxic mold.

This imminent threat and danger to the health of San Jose residents would have been obvious 65.

to the County, the County’s Public Health Officer and staff and the County’s Environmental Health depart had environmental and/or public health workers been deployed full-time, round-the-clock in the physical locations in San Jose where flooding was occurring and in the days immediately prior to and following the flooding. Pro-active public and environmental health intervention to warn and protect residents from these risks was not provided. Instead, residents of flooded areas of San Jose were given handouts of brushes and bleach from the Red Cross, a gesture that encouraged already stressed out residents to believe that scrubbing walls with bleach was an effective measure to prevent build-up of mold when in fact, post-Katrina, the bleach remedy had been clearly shown not to be effective at all.

As a direct and proximate result of the negligent and careless failure of Defendants to discharge their aforementioned mandatory duties, Plaintiffs’ real and personal property were severely damaged or destroyed by water, silt and other debris, thereby causing Plaintiffs to

sustain damage and severe emotional and physical suffering.

THIRD CAUSE OF ACTION

(Nuisance)

Plaintiffs Patrick and Renay FALCONIO, Jill CASE, Chanh LA and Phuong Lan PHU

66.

67.

68.

v. All Defendants Plaintiffs re-allege and incorporate herein by reference each and every allegation of the foregoing paragraphs as if fully set forth. Defendants’ failure to properly maintain and manage Anderson Dam and Reservoir and Coyote Creek constituted an unreasonable act that also breached specific legal and mandatory duties. These conditions also constitute an ongoing nuisance which could cause recurrent floods in the event of heavy rains in the future. Defendants’ faulty and irresponsible management, maintenance, operation and use of Anderson Dam and Reservoir and Coyote Creek was an unreasonable use of land constituting a nuisance under California Civil Code Section 3479. Plaintiffs allege upon information and belief that Defendants knew or should have known based upon prior history

and information provided to them that as a result of the unreasonable condition in which

15 69.

Anderson Dam and Reservoir and Coyote Creek were maintained, Anderson Dam would overspill and cause massive flooding along the Coyote Creek area, thereby causing damage to homes and real and personal property of Plaintiffs, interfering with Plaintiffs’ comfortable enjoyment of their lives, their health, and their real and personal property , all without Plaintiffs’ consent.

As a direct and proximate result of Defendants’ nuisance, Plaintiffs’ real and personal property and certain Plaintiffs’ persons were all damaged as described herein, and caused fears, anxiety, and other emotional distress and consequential damages to Plaintiffs in an

amount to be proven at trial.

FOURTH CAUSE OF ACTION

(Negligence)

Plaintiffs Patrick and Renay FALCONIO, Jill CASE, Chanh LA and Phuong Lan PHU

70.

71

12,

13,

v. All Defendants

Plaintiffs re-allege and incorporate herein by reference each and every allegation of the foregoing paragraphs as if fully set forth.

Defendants , and each of them, had duties which required that they exercise such reasonable and ordinary care in the management, control, improvement, operation, construction, and repair of Anderson Dam and Coyote Creek that Plaintiffs’ properties as well as their health and well-being would be protected.

Defendants and each of them also had duties which required them to exercise reasonable and ordinary care in notifying Plaintiffs when flooding was likely or certain to occur and of the health and safety hazards of flooding and flood water, and in maintaining, creating, and deploying systems and mechanisms to accomplish such warning. Defendants’ failure to fulfill these duties constituted actionable negligence.

Defendants, and each of them, created, maintained, allowed to exist, failed to abate, and failed to warn of an unreasonably dangerous condition of public property located near and/or around Plaintiffs’ properties, including Anderson Dam and Reservoir and areas in and along

Coyote Creek all in breach of Defendants’ duties to exercise reasonable and ordinary care.

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12 13 14 &27

Defendant Santa Clara County negligently and unreasonably failed to provide timely and effective warnings, personal protection, assistance, preparedness information, and functional relief to residents who were inundated by sewage-laden toxic flood waters, mold and other flood related hazards.

As a direct and proximate result of Defendants’ negligence and breach of their duties, Plaintiffs’ real and personal property and persons were damaged as described herein, and caused fears, anxiety, and other emotional distress to Plaintiffs in an amount to be proven at

trial.

FIFTH CAUSE OF ACTION

(Trespass) Plaintiffs Patrick and Renay FALCONIO, Jill CASE, Chanh LA and Phuong Lan PHU

76.

v. All Defendants

Plaintifts re-allege and incorporate herein by reference each and every allegation of the foregoing paragraphs as if fully set forth.

On or about February 21, 2017, Plaintiffs were owners and/or possessors of property consisting of land and improvements and personal property in close proximity to Anderson Dam and Reservoir and Coyote Creek, owned, possessed and controlled by Defendants Water District and City of San Jose and/or DOES 1 through 100.

On or before February 21, 2017, Defendants Water District and Does | through 100 intentionally, knowingly, carelessly, and negligently performed substandard maintenance, operation, control or supervision of Anderson Dam.

On or before February 21, 2017, Defendants Water District and City of San Jose and Does 1 through 100 intentionally, knowingly, carelessly, and negligently performed substandard maintenance, operation, control or supervision of Coyote Creek.

SIXTH CAUSE OF ACTION

(Dangerous Condition of Public Property)

Plaintiffs Patrick and Renay FALCONIO, Jill CASE, Chanh LA and Phuong Lan PHU

81.

v. All Defendants

Plaintiffs re-allege and incorporate herein by reference each and every allegation of the foregoing paragraphs as if fully set forth.

Anderson Dam and Reservoir are and/or at all time relevant were owned and/or controlled and maintained by the Water District and the County. They are and at all times relevant were regulated and overseen by DOES 1 through 100.

Coyote Creek was owned, maintained and/or controlled by the Water District and the City of San Jose.

Anderson Dam and Reservoir were dangerous and defective on or before February 21, 2017. Defendants knew that the Dam’s outlet valve and spillway were inadequate to reduce the level of water sufficiently to prevent a flood. Knowing that this was the case, Defendants nevertheless failed to use pumps and/or siphons to reduce the level of water to meet the 68% water level restrictions required by the State and federal agencies. These dangerous and defective conditions which Defendants, and each of them, created and/or had notice of, were the proximate and legal cause of Plaintiffs’ damage as alleged herein.

Anderson Dam and Reservoir were in a dangerous condition that created a reasonably foreseeable risk that it would overspill and cause Coyote Creek to discharge water, silt and debris upon Plaintiffs property, causing damage to Plaintiffs and their property as alleged herein.

At all times, Defendants and each of them knew or should have known that Anderson Dam and Reservoir and Coyote Creek were in a dangerous and defective condition.

Plaintiffs are further informed and believe that Defendants had actual and constructive knowledge well prior to the February 21, 2017 flood that the dangerous condition would lead to overspilling and flooding along Coyote Creek and that the Coyote Creek channel was full of debris that restricted the water flow through the creek, thereby increasing the likelihood of flooding. Defendant Water District developed a plan to help address and mitigate some of the

18 dangerous condition but failed to implement it in a timely manner, despite the forecast from the National Weather Service that an “atmospheric river” was about to inundate the County. In fact, the District did nothing to even start trying to implement their pump over plan to prevent flooding until time was already up.

Defendants failed to prevent and/or remedy said conditions within a reasonable time after knowledge or to reasonably warn Plaintiffs of the dangers thereof, thereby directly and

proximately causing the resulting damage to Plaintiffs’ real and personal property.

SEVENTH CAUSE OF ACTION

(Negligent Infliction of Emotional Distress)

Plaintiffs Patrick and Renay FALCONIO, Jill CASE, Chanh LA and Phuong Lan PHU

89.

v. All Defendants

Plaintiffs re-allege and incorporate herein by reference each and every allegation of the foregoing paragraphs as if fully set forth.

Defendants, and each of them, had a legal duty to Plaintiffs, as foreseeable victims, to exercise reasonable care as set forth herein. Defendants’ breach was the legal and proximate cause of the injuries and damages suffered by Plaintiffs.

As a result of the negligent conduct of Defendants, and each of them, Plaintiffs suffered serious emotional distress. Defendants knew or should have known that Plaintiffs would be harmed and suffer serious emotional distress during and as a result of their acts, omissions, conduct and/or other wrongdoing. Defendants’ conduct, actions and inaction were a substantial factor in causing Plaintiffs serious emotional distress, all of which caused and continues to cause and will cause physical and mental suffering, all to Plaintiffs” general damagedetermined at the time of trial.

As a direct and legal result of Defendants’ negligence, Plaintiffs were injured emotionally,

physically and/or economically and/or were in the zone of danger of the flood.

EIGHTH CAUSE OF ACTION

(Intentional Infliction of Emotional Distress)

Plaintiffs Patrick and Renay FALCONIO, Jill CASE, Chanh LA and Phuong Lan PHU

v. All Defendants Plaintiffs re-allege and incorporate herein by reference each and every allegation of the

foregoing paragraphs as if fully set forth.

Plaintiffs and their neighbors in the areas flooded in Feb. 2017 are working families and

retirees; the median income of residents in the zip codes where warnings were not given and

where devastating flooding occurs are markedly lower than in zip codes on the West Side of

Silicon Valley that would have been flooded by overtopping of Calero Reservoir 20 years

ago had the Water District not timely installed pumps in Calero Reservoir to keep water

levels from overtopping and flooding these economically privileged areas of Silicon Valley.

Plaintiffs and their neighbors are also well aware that their suffering and dispossession due to

a flood about which they were not warned or protected may be a boon to speculators

interested in opportunities to invest as Plaintiffs and their neighbors are pushed to the edge.

As Plaintiff Roma Smith, age 10, stated in her claims to the Water District, the City and the

County: “4 hours of warning would have helped so many people be ready, clear out

basements, get sandbags, move cars, save things that cannot be replaced. If they

(Defendants) knew about the problem days before, then what happened was a ‘land grab’

because if they cared about us, they would have told us.*

Defendants have engaged in extreme and outrageous conduct towards Plaintiffs and their

neighbors in the 3 neighborhoods most directly affected by the Coyote Creek flood: Olinder/

William Street, Rock Springs and the Mobile home Parks — both in the short term and the

long term. Specific examples include but are not limited to:

« The District’s promise that 2 bond issues which created special assessments on real property, and which were passed by the voters, would be put into flood control. The district then failed to apply the designated funds to flood control where it was obviously needed. Instead, the District spent the bond funds to protect other areas of the county, particularly other neighborhoods with higher median incomes.

« Knowing days in advance that the areas around Coyote Creek were going to flood,

endangering lives and property, and failing to protect against the flood, failing to install O ©O©W-

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27

98.

pumps despite knowing they were needed, failing to provide necessary health protections

and failing to give Plaintiffs notice of the impending flood. Defendants engaged in the aforementioned outrageous conduct with reckless disregard of the probability that such conduct would result in flooding and damage to personal and real property, would put lives in danger and would cause severe emotional distress to Plaintiffs, Defendants’ outrageous conduct was the actual and proximate cause of Plaintiffs’ emotional distress. The wrongful acts of Defendants were done maliciously, oppressively, fraudulently and in conscious disregard for the safety and health of the public The conduct of Defendants was without justification and has caused plaintiffs and others impacted by the flood to bear a disproportional, unfair burden.

PRAYER

WHEREFORE, Plaintiffs pray for judgment against Defendants as follows:

a. General damages as alleged herein;

b. damages for loss of property as well as the diminution of property values, according to proof;

c. Special damages as alleged herein and as according to proof;

d. Costof replacement, repair and/or improvement according to proof;

e. Intereston the principal amount of their damages from February 21, 2017 until paid;

f. Costs of suit, including reasonable attorneys’ fees and all costs and expenses of litigation;

g. Attorney’s fees and expert fees as may be allowable under applicable law, including California Code of Civil Procedure sections 1021.5 and 1036;

h. Injunctive relief requiring Defendants to put in place and test 1) appropriate notification procedures; 2) pumps and/or other mechanisms to prevent and or mitigate future occurrences; 3) a functioning plan and program to ensure that Coyote Creek is free and clear of debris or impediments to the creek flow and thereby protect the emotional and physical

well-being of Plaintiffs, many of whom still reside in the affected area; i. Injunctive relief requiring Defendant Santa Clara County to develop and implement a program to provide emergency health protection and prevention services to be available during future disasters, as well as to develop and implement a health surveillance program to track, monitor, treat and control disaster related adverse health impacts; and

j. For an order awarding such other and further relief as this Court may deem just and proper.

DATED: March 20, 2018 By: a Hawes Office of Amanda Hawes 23 East San Carlos Street, # 452 San Jose, CA 95112 Telephone: 415-987-1776