On 03/22/2018 Gonzalez filed a Personal Injury - Other Personal Injury lawsuit against Santa Clara Valley Water District. 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.
Pending - Other Pending
Santa Clara County Superior Courts
Downtown Superior Court
Santa Clara, California
Walsh, Brian C
Santa Clara Valley Water District
City of San Jose
Superior Court of California
Hare, Jeffrey B
Superior Court of CA, County of Santa Clara
Notice CMC 10-5-18 at 10am in D19: Comment: CMC set for 10/5/18 at 10am in D19 (16 related cases)
Complaint Consolidated First Amended: Comment: Consolidated First Amended Complaint
Notice CMC reset to 6-8-18 at 10am in D19: Comment: CMC reset to 6/8/18 at 10am in D19
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:
Civil Case Cover Sheet: Comment: COMPLEX
Complaint (Unlimited) (Fee Applies):
Conference: Case Management - Judicial Officer: Kirwan, Peter; Hearing Time: 10:00 AM; Cancel Reason: VacatedRead MoreRead Less
Complaint: Amended - Complaint Consolidated First Amended: Comment: Consolidated First Amended ComplaintRead MoreRead Less
Notice - Notice CMC 10-5-18 at 10am in D19: Comment: CMC set for 10/5/18 at 10am in D19 (16 related cases)Read MoreRead Less
Conference: Case Management - Judicial Officer: Kirwan, Peter; Hearing Time: 10:00 AM; Result: Held; Comment: (1st CMC)Read MoreRead Less
Minute OrderRead MoreRead Less
Minute OrderRead MoreRead Less
Notice - Notice CMC reset to 6-8-18 at 10am in D19: Comment: CMC reset to 6/8/18 at 10am in D19Read MoreRead Less
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/TCZRead MoreRead Less
Summons: Issued/Filed - Summons Issued Filed:Read MoreRead Less
Civil Case Cover Sheet - Civil Case Cover Sheet: Comment: COMPLEXRead MoreRead Less
Complaint (Unlimited) (Fee Applies) - Complaint (Unlimited) (Fee Applies):Read MoreRead Less
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10. Coyote Creek runs approximately 63 miles in length from its origin in Henry Coe State Park to its outfall in San Francisco Bay. Located upstream, near its point of origin, are two man- made reservoirs, which serve to capture and hold storm water runoff both as a flood control measure, and to retain water supplies to recharge ground water aquifers located in Santa Clara County. One of these is Coyote Reservoir, which was constructed in or around 1935, and has a capacity of approximately 23,400 acre feet. The other is Leroy Anderson Reservoir, constructed in 1950, with a capacity of approximately 91,300 acre feet, according to State Department of Water Resources statistics. (DISTRICT records put the capacity of Anderson at approximately 89,000 acre feet).
11. The DISTRICT acknowledges that one of its main jobs is to provide flood protection for residents of Santa Clara County. The Santa Clara Valley Water District Web Site noted that the “creeks and rivers that helped form the picturesque Santa Clara Valley” were “subject to periodic flooding.” When Spanish settlers began arriving in 1769, there were about 10,000 Ohlone natives living in the area, who knew that during times of heavy rains, the valley’s creeks and rivers would overflow. As the valley population grew, the periodic overflowing of local creeks and rivers began “to be more than an occasional inconvenience — flooding began to threaten the new homes, business and lives.” The District Web site declares that “Protecting homes, businesses and transportation networks from the devastating effects of floods is one of the main jobs of the water district.”
12. Between 1950, the year in which Anderson Dam was constructed, and not counting the 2017 event, there were twelve (12) major flood events in Santa Clara County. In four (4) of these events', Anderson Reservoir has filled to capacity and spilled. Each time Anderson
Reservoir filled and spilled, flooding has occurred in the mid-Coyote Creek area. When
! Flood Reports were prepared for 1955-56, 1978, 1980, 1982, 1983, 1986, 1995, 1996-97, 1998, 2009, and 2012. Anderson Reservoir was reported to have filled and spilled in 1982, 1983, 1997 and 1998. In each of these four years, flooding was reported to have occurred in the mid-Coyote Creek region. With minor exceptions, when Anderson did not fill and spill, no flooding was reported in the mid-Coyote Creek region, even if extensive flooding occurred elsewhere in the County.
Complaint for Damages -4
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28. During the OES Conference call on Monday afternoon, February 20, the Event Overview stated “The potential for copious amounts of rainfall which could cause widespread flooding concerns exists with this system.” The NWS reported a “Flood warning for Coyote Creek.” The DISTRICT reported that four reservoirs continued to spill, and Anderson was projected to reach peak flow of 7,000 — 9,000 cfs between 6:00 — 10:00 a.m. on Tuesday, and that “Spillway flow to downtown San Jose on Coyote Creek is roughly a 6 hour delay.” CITY reported that it had rescued two urban campers, opened two evacuation centers, and the Red Cross had opened two shelters.
29. During the OES Conference call on Tuesday morning, February 21, at 9:00 a.m., the Event Overview stated that “Flooding remains a concern ... but will diminish later tonight...” NWS issued a Flood Warning for Coyote Creek at Madrone. DISTRICT noted that seven (7) reservoirs were spilling. CITY reported that “Rock Springs is flooded,” and that the CITY “Will be 1ssuing messaging along Coyote Creek.” In other words, despite the fact that the OES conference calls for the past six days had been warning of possible flooding in the Coyote Creek area, the CITY s first effort to send a public announcement did not occur until after the flooding had already started.
30. During the OES Conference call on Tuesday at 12:00 noon, February 21, CITY reported it had “Proclaimed evacuations” in Rock Springs, and started transporting individuals to shelters. CITY also reported it was starting AlertSCC messaging on Coyote Creek.
31, During the OES Conference call on Tuesday afternoon at 3:00 p.m. on February 21, the NWS reported that Coyote Creek was not projected to drop below flood stage until Wednesday evening. DISTRICT reported that “Coyote @ Charcot likely to flood within the next 4-5 hours.” CITY reportedcommand post at the Golden Wheel mobile home park, and was concerned about Coyote Creek at William Street bridge to Arroyo. CITY further advised that it was “Creating flyer for distribution to potential flood areas.” It is noteworthy that in light of
multiple reports of actual flooding that had already taken place, as of 3:00 p.m. in the afternoon
Complaint for Damages -9
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from the DISTRICT via e-mail early the morning of February 21, and was clearly surprised when 911 reports of flooding started coming in during mid-morning.
41. Both DISTRICT and CITY officials were participating in County OES conference calls for a full week ahead of the flooding, and e-mails concerning the flooding were sent to CITY officials at all levels advising of the potential for flooding as a result of the conditions and forecasts.
42. Exacerbating the problem, the CITY knew the position of Director of Emergency Services had been vacant since near the beginning of the rainy season, and knew the position had not been filled as of the date of the flooding. As a consequence, the role was being handled by an Assistant City Manager who admitted he did not understand the charts and metrics provided by the DISTRICT. According to accounts in the news and in a detailed analysis prepared by Witt-O’Brien’s, there was considerable confusion in the CITY EOC as a result of a lack of leadership, preparation and trained personnel. Phone calls attempting to reach the EOC were coming in so fast they simply stopped answering the phone, and when a field staff member texted a photo of the flooding, the Assistant City Manager reportedly stated “How can that be happening?”’
43. Even with the benefit of historical data, significant warnings from NWS and other agencies, including the NWS, County OES, and the disaster at Oroville Dam that had occurred the previous week as a result of the same set of weather conditions that were impacting the Bay Area, neither the DISTRICT nor CITY officials took any steps to prepare, warn, protect, or mitigate against the pending damages that would result from the flooding that occurred. Although emergency crews worked tirelessly throughout the day to rescue hundreds of victims, and evacuation shelters that had been set up the prior week were activated, CITY officials continued to stumble in their response. As of 3:00 p.m. the afternoon of the flooding, the CITY
reported it was “creating a flyer” to notify residents in the flood areas, and it wasn’t until after
Complaint for Damages - 13
the peak of the flooding had passed that the CITY issued evacuation orders to approximately 14,000 residents. By then, the flooding had peaked and was starting to subside. 44. In areport dated June 26, 2017, entitled “February 2017 Coyote Creek Flood After- Action Report,” by Witt-O’Briens, the analysis concluded, in part, “the City repeated many of the same actions made during a similar Coyote Creek flood in January 1997, including relying too heavily on flood projection data from the Santa Clara Valley Water District (SCVWD). In both instances, the City was unnecessarily caught off guard when the flooding occurred, placing residents in a potentially dangerous situation.” (Emphasis added). 43, Moreover, CITY controls, manages and operates a storm drainage system and other public works in the area impacted by the flooding, including a system of storm drain inlets, pipes and discharge outlets that are designed to allow storm runoff to pass through the drop inlets and flow into Coyote Creek. Plaintiff is informed and believes that as flood waters spilled over the banks of Coyote Creek in the areas near certain neighborhoods, such as the areas north of Olinder School, storm drain inlets became clogged with debris, and high water levels in the Creek channel itself kept the discharge outlets from functioning, thereby preventing flood water runoff from draining properly. As a result, flood water reached homes that were not even adjacent to the Creek itself, flooding basements and requiring emergency rescue from SJFD USAR teams well into the evening,
46. The amount in controversy exceeds the minimum jurisdictional limit of Unlimited Jurisdiction for the Superior Court. 47. Venue is proper in Santa Clara County due to the fact that one or more Defendants reside in Santa Clara County and are subject to the personal jurisdiction of the Court, and further, that the injuries and damages to the Plaintiffs occurred within the jurisdictional area of the County of Santa Clara.
(Against All Defendants) 49. Plaintiff incorporates by reference Paragraphs 1 through 48, inclusive, of the Complaint as though fully set forth herein. 50. Plaintiffs are informed and believe, and on this basis aliege, that on or prior to February 21, 2017, Defendant DISTRICT owned, maintained, managed, and operated Coyote and Anderson Dams and Reservoirs, as well as several measuring stations located at various points along Coyote Creek, and further that Defendant DISTRICT had both the responsibility and authority to maintain and manage the many creeks, waterways, drainage basins, and other components of the watersheds within Santa Clara County, including, but not limited to Coyote Creek and its tributaries, and had knowledge and notice that there was a direct correlation between allowing Anderson Reservoir to fill and spill and damages from flooding that would occur in the mid-Coyote Creek area. 51. Plaintiffs are further informed and believe, and on this basis allege, that on or prior to February 21, 2017, Defendant DISTRICT, which owned, maintained, managed and operated‘ Anderson Dam and Reservoir, knew and was aware of the restrictions that had been imposed on Anderson Reservoir by the Department of Water Resources, by and through its Division of Safety of Dams, due to the threat of catastrophic failure due to the dangerous condition caused by seismic instability of the earthen dam. 52. Defendant DISTRICT knew long before February 21, 2017, that the discharge outlet in Anderson Reservoir was inadequate to reduce the level of water in the event Anderson Reservoir was allowed to fill to capacity. Despite its knowledge of the correlation between Anderson Reservoir reaching spillover levels and flooding in the mid-Coyote Creek area, and despit
Moreover, it is well-established that the existing discharge outlet pipe in Anderson Dam is ofpage 15 can't be parsed
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were likely to occur, Plaintiffs suffered damages that they would otherwise would not have suffered. 59. By reason of the foregoing, Plaintiffs have suffered injury and damages as herein alleged in this Complaint, and Defendants, and each of them, are liable for said damages as alleged pursuant to Government Code §835, ef seq.
Against Defendant SANTA CLARA VALLEY WATER DISTRICT
60. Plaintiff incorporates by reference Paragraphs 1 through 59, inclusive, of this Complaint as though fully set forth herein. 61. Defendant DISTRICT, at all times relevant hereto, is the owner and exercises jurisdiction as a special district responsible for maintaining, operating, and managing various public facilities, equipment and systems located within Santa Clara County for the express purpose of flood control and water supply. As part of its jurisdiction, DISTRICT manages various watershed areas and their component reservoirs, dams, spillways, creeks, and sensor data. Further, as part of the scope of its efforts to maintain and manage the elements of the watershed, DISTRICT conducts efforts to clear creeks and rivers within the watershed areas of excess vegetation, overgrowth, fallen trees, and debris, due to the fact that these obstructions can exacerbate damages from flooding and reduce the carrying capacity of the creek channels. 62. The Coyote Creek Watershed, and its integrated system of reservoirs, dams, channels, percolation ponds, retention basins, meters and other instrumentation, are all part of a public project under the jurisdiction of the DISTRICT designed for the purposes of flood control and water supply. 63. In 1997 and 1998, the last two times DISTRICT allowed water levels in Anderson Reservoir to reach capacity and spill over into Coyote Creek, flooding caused damage to
Plaintiffs’ property, in a similar fashion as occurred in February, 2017. 64. Despite knowing that allowing Anderson Reservoir to fill and spill was extremely likely if not guaranteed to cause flooding and damage to Plaintiffs real and personal property, DISTRICT failed to take reasonable and prudent measures to prevent, mitigate or avoid flooding even when it knew that Anderson would once again fill and spill in February, 2017,
65. Defendant DISTRICT’s failure to maintain, repair, abate or correct the well-known deficiencies of Anderson Reservoir or the condition of the creek channels leading to and along the area in which Plaintiffs’ property is located, was a foreseeable and proximate cause of the flooding which occurred on February 21, 2017, and the resulting damage to Plaintiffs’ real and personal property.
66. Plaintiffs are informed and believe, and on the basis of this information and belief, alleges that by reason of the foregoing failure of the DISTRICT to properly maintain, manage, operate and repair the components of the Coyote Creek Watershed and Anderson and Coyote Reservoirs, as well as the failure to take reasonable and prudent steps to mitigate, prevent or minimize the known risk of flooding along Coyote Creek, Plaintiffs suffered damages to their real and personal property.
67. As adirect and proximate result of the flooding that resulted due to Defendant’s actions or failure to take action, Plaintiffs were deprived of the use of their real and personal property, and had to undergo substantial efforts to replace, repair and/or restore their property in order to return. Defendants’ failure to act constituted a taking and damaging for a public use and purpose without compensation in violation of Article I, Section 19 of the California Constitution.
68. As aresult of the flooding, Plaintiffs real and personal property has been damaged in an amount that still being assessed, but that is in excess of the limited jurisdictional amounts of the Superior Court. Plaintiffs will seek permission to amend this Complaint to provide an updated
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91. At all times mentioned herein, Defendant DISTRICT engaged in, and was responsible for, the maintenance, inspection, operation and management of Anderson Reservoir and the Coyote Creek Watershed pursuant to the Act, and subject to the jurisdictional restrictions imposed by DSOD. Defendant DISTRICT was and is an agency intended to be so regulated, and in fact was regulated, by the aforementioned regulations, statutes and laws which required Defendant to diligently and safety perform its duties in compliance with said regulations, statutes and laws. 92. Plaintiffs, as residents and owners of property located in the vicinity of the DISTRICT’s watershed, were at all times members of the class of persons sought to be protected by the aforementioned regulations, statutes and laws, which provide for, and otherwise regulate Defendant in its management, maintenance, and operation of the Reservoir and watershed. 93. By the acts and omissions alleged herein, Defendant has failed to perform its maintenance, management, and operation obligations. Such conduct constitutes a failure to perform a mandatory duty under California Government Code § 815.6, the performance of which was intended, designed and imposed to protect against the particular kind of injuries sustained by Plaintiffs herein, which were a foreseeable consequence of Defendant’s violations. Defendant’s failure to perform their mandatory duties was tantamount to negligence as defined in California Evidence Code § 669. 94. Asadirect and proximate result of the negligent and careless failure of Defendant DISTRICT to discharge its aforementioned mandatory duties, Plaintiffs’ real and personal property was severely damaged by water, silt and other debris from the flooding that occurred, thereby causing Plaintiffs to sustain the damage described herein.
WHEREFORE, Plaintiffs pray that the Court enter a judgment against Defendants, and
each of them, that: .
Awards compensatory, statutory and all other damages sustained by Plaintiffs as to all causes of action where such relief 1s permitted;
Awards Plaintiffs the costs of this action, including reasonable attorneys’ fees and expenses;
Awards appropriate injunctive relief;
Awards attorneys fees and expert fees as may be allowable under applicable law, including California Code of Civil Procedure sections 1021.5 and 1036;
Awards pre-judgment and post-judgment interest;
Orders appropriate declaratory relief, and such further legal and equitable relief as this Court may deem just and proper.
Plaintiffs demand a jury trial on all issues so triable.
Dated: /222018 JEFFREY B. HARE, APC A Professional Corporation