This case was last updated from Santa Clara County Superior Courts on 08/14/2019 at 08:13:19 (UTC).

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

Case Summary

On 02/13/2018 Aguilera filed an Other 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 Kuhnle, Thomas, Walsh, Brian C and Kirwan, Peter. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ******3345

  • Filing Date:

    02/13/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other

  • Court:

    Santa Clara County Superior Courts

  • Courthouse:

    Downtown Superior Court

  • County, State:

    Santa Clara, California

Judge Details

Judges

Kuhnle, Thomas

Walsh, Brian C

Kirwan, Peter

 

Party Details

Plaintiffs

Evanicky, Sue

Jennings, Gabriel

Perez, Jose

Truong, Tran

Romero, Francisco

Dang, Chau Van

In, Von

Nguyen, Phung

Loera, Anne

Reguirin, Patricia

Gould, Cary

Alcantara, Nathaniel

Nguyen, A Thi

Hernandez, Maria

Chhunn, Heng

Griffin, Andre

Sevilla, Elizabeth

Loera, Erik

Serrato, Baltazar

Le, Bao

174 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorney

Hawes, Amanda

Other Attorneys

Superior Court of CA, County of Santa Clara

Walker, Evan W

Oneal, Jeffrey Frank

 

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)

Substitution: Attorney

Aguilera.Sub Attys.pdf: Comment: Substitution of Attorney

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

Declaration: In Support

Declaration In Support Jeffrey F. Oneal: Comment: Jeffrey F. Oneal

Affidavit: Peremptory Challenge CCP 170.6

Affidavit Peremptory Challenge CCP 170.6 (BCW): Comment: CCP 170.6 as to Hon. Brian C. Walsh

Order

Order Disclosure Statement: Comment: Disclosure Statement - signed/BCW

Order

Order & Notice Reassignment to D1 and CMC reset: Comment: Order & Notice of Reassignment of Case to Department 1; CMC reset to 6/8/18 at 10am in Department 1 - signed/BCW

Document: Other

ADR CV-5003: Comment: ADR CV-5003

Notice

Civil Lawsuit Notice: Comment: Civil Lawsuit Notice (1st CMC set for 6/8/18 at 10am in D5; assigned to Hon. Thomas E. Kuhnle

Order

Order & Notice of Reassignment of Case to Department 5 Complex TEK: Comment: Order & Notice of Reassignment of Case to Department 5 - signed/TEK

Notice: Related Cases

Notice Related Cases:

Summons: Issued/Filed

Summons Issued Filed:

Civil Case Cover Sheet

Aguilera Cover Sheet.pdf:

Complaint (Unlimited) (Fee Applies)

Complaint (Unlimited) (Fee Applies):

3 More Documents Available

 

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
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  • 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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  • 04/26/2018
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  • Substitution: Attorney - Aguilera.Sub Attys.pdf: Comment: Substitution of Attorney

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  • 04/03/2018
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  • 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
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  • 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

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  • 03/21/2018
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  • Declaration: In Support - Declaration In Support Jeffrey F. Oneal: Comment: Jeffrey F. Oneal

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  • 03/21/2018
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  • Affidavit: Peremptory Challenge CCP 170.6 - Affidavit Peremptory Challenge CCP 170.6 (BCW): Comment: CCP 170.6 as to Hon. Brian C. Walsh

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  • 03/07/2018
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  • Order - Order Disclosure Statement: Comment: Disclosure Statement - signed/BCW

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  • 03/06/2018
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  • Order - Order & Notice Reassignment to D1 and CMC reset: Comment: Order & Notice of Reassignment of Case to Department 1; CMC reset to 6/8/18 at 10am in Department 1 - signed/BCW

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  • 02/22/2018
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  • Document: Other - ADR CV-5003: Comment: ADR CV-5003

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  • 02/22/2018
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  • Notice - Civil Lawsuit Notice: Comment: Civil Lawsuit Notice (1st CMC set for 6/8/18 at 10am in D5; assigned to Hon. Thomas E. Kuhnle

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  • 02/22/2018
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  • Order - Order & Notice of Reassignment of Case to Department 5 Complex TEK: Comment: Order & Notice of Reassignment of Case to Department 5 - signed/TEK

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  • 02/13/2018
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  • Notice: Related Cases - Notice Related Cases:

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  • 02/13/2018
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  • Summons: Issued/Filed - Summons Issued Filed:

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  • 02/13/2018
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  • Civil Case Cover Sheet - Aguilera Cover Sheet.pdf:

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  • 02/13/2018
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  • 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, #1452

San Jose, CA 95112

Telephone: 415-987-1776

E-FILED

2/13/2018 1:28 PM Clerk of Court

Superior Court of CA, County of Santa Clara

18CV323345

Reviewed By: S. Alvarez

M. SUZANNE MURPHY (CA State Bar No. 145657)

Smurph7878@ aol.com Law Office of M. Suzanne Murphy

1547 Palos Verdes Mall #4118 Walnut Creek, CA 94597 Telephone: 925-286-4810

Counsel for PLAINTIFFES

IN THE SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA

Jessica AGUILERA ; Mirna and Nathaniel ALCANTARA; Carlos ANGEL CERVANTES; Roberto ARAUJO and Maria HERNANDEZ; Beatriz AVILEZ; Raymond BEHVAND; Erin BENAVIDES; Samantha BENAVIDES, individually and as Guardian ad Litem to JOSIAH BENAVIDES, a minor child; Gabriel and Maria BRAVO; Maria BRAVO; Ben CAMBARE and Elvie CLEODORE; Reyna CARILLO; Marie and {)orge CASTENEDA; Luis CASTENEDA - ELAY O; Heng CHHUNN; Chau Van DANG Mary Hang DAO; Jepte DE ALBA; Leticia DE LA CRUZ; Ruben and Maria DE LA CRUZ; Antho%y DO; Thi Thuy Bui DUONG; Thu?g\D ONG; Sinia ELLIS; Sue EVANICKY ; Raymond FIDDLER; Mong Van FOUSEK; Consuelo FRIA Z and Angel LOPEZ; Sue FRY and David GOODE; Anahi GARCIA; John GARCIA; Y adira Y olanda GARCIA; Shannon GEORGE; Cary GOULD; Andre GRIFFIN; Samuel and Patricia GUMMO:; Crystal HERNANDEZ; Florentino HERNANDEZ and Silvia BARRAGAN; Nen Van HO; Thanh HO; Tien Thi Thuy HOANG; Angelha HUY NH; Danny HUY NH; Tai HUY NH; Tuan HUY NH; Tuan Quoc HUY NH; Von IN;

Gabriel JENNINGS and Tracy OY UELA; Cheryl JOHNSON; Dara KEO; Brendan and Catherine LAVELLE; Bao LE; Kiet LE;

18CV323345 COMPLAINT FOR INVERSE

CONDEMNATION, BREACH OF MANDATORY DUTY, NUISANCE, NEGLIGENCE, TRESPASS,

DANGEROUS CONDITION OF PUBLIC

PROPERTY, NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS,

INTENTIONAL INFLICTION OF

EMOTIONAL DISTRESS, and

INJUNCTIVE RELIEF

NGUY EN; Hot NGUY EN; Hung NGUY EN; Nam-Thanh NGUY EN; N%oc-Tuyet

NGUY EN; Nhut NGUY EN; Phung

NGUY EN; Tommy NGUY EN; Trang NGUYEN; Hien NGUYEN ; Le Thi

NGUY EN; Thanh NGUY EN and Trang V U; Christina OLIVO; Sosinat OUTRY an Theany LUN:; Teresa PEDRIZCO; Laura PERALTA; Olga and Esaul PEREZ; Hoang PHAM: Thiep PHAM and Tinh PHAM; Maria PONCE; Joe and Tess PRUM; Kea PRUM ; Daniel QUAN; Xuan Mai QUAN; Elizabeth QUINTANA and Jose PEREZ; Joe RAMIREZ and Mary Fernandez RAMIREZ: Lorena RAMIREZ: Manuel and Maria RAMIREZ; Claudia REGALADO; Patricia REGUIRIN and Wilson Vaca ABREGO:;

Srey REN; Y olanda REY NOSO; Erica ROBLES; Linda ROCHA:; German ROCHA; Francisco and Concepcion ROMERO; Maria Elena ROMERO:; Armando RUTHERFORD; Teresa SANCHEZ and Ruben MORALES:; Richard and Y ulia SAWATSKY:; Carol SEGURA: Baltazar SERRATO and Luz BUENROSTRO:; Elizabeth SEVILLA; John SOARES; Phiep SON; Maria Rosario SOLIS; Edward SPECK; Lang TANG; Sandi TAY LOR,; Nang and Van TRAN; Quang TRAN; Thoa Kim TRAN; Cuc TRUONG; Danh TRUONG; Gioré:; and Quanh Le TRUONG; Kalvin TRUONG and Ngoc Anh TRAN; Nhung TRUONG; Tran TRUONG; Anna Daisy VASQUEZ; Misael VELA and Teresa MARTINEZ; Jose VILLALOBOS; Dau VU; Ngoc Anh Thi and Julie VU; The-Ngoc VU; Elyana YANES and Tony MEZA; Olvyn ZELAYA; Claudia ZEPEDA,

SANTA CLARA VALLEY WATER

DISTRICT; CITY OF SAN JOSE; COUNTY OF SANTA CLARA; and DOES 1-100,

Defendants. The Plaintiffs complain of Defendants Santa Clara Valley Water District (“the Water District” or “SCVWD?”), the City of San Jose (“the City” or “San Jose”), the County of Santa Clara (“Santa Clara County” or the “County”), and DOES 1 through 100 (collectively, “Defendants™), as follows:

NATURE OF THE CASE

1. 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 and its consequences were 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; 3) properly design, construct and maintain the City park in Rock Springs, thereby enabling the water from the creek to overflow its banks; 4) properly establish, supervise and manage the emergency shelters to which the Plaintiffs who were displaced by the flood were taken by city employees; and 5) prioritize affordable housing for poor and working families — especially those displaced by flooding — thereby subjecting displaced Plaintiffs and their neighbors to additional trauma and distress. Plaintiffs” government claims attest to this distress. For example :

a. A. Huynh (a named Plaintiff in a related case, Amargo et al. v. Santa Clara Valley Water District et al., Santa Clara Sup. Ct. Case No. 18CV 32210) lived in Rock Springs since 1982 until displaced by the flood and overwhelmed about how to replace everything lost due to the flood., thus suffering a severe toll from the flood and becoming too sick from being displaced to work, as explained below:

[11T]]

“At 7-Trees community shelter I caught the flu or some virus; even with flu medicine it did not go away. My requesthotel was denied. I was so sick that on 3-15-2017 I went to the restroom, coughed up blood, fainted and fell to the ground. I was taken to Regional Hospital by ambulance. Ilost alot of blood due to an ulcer. The hospital said the cause of the ulcer was stress and A dvil that I took due to my flu. My deductible for the hospital stay is over $5,000; the bill was $5,240.90. Then in June the landlord sent a Notice of rent increase at the apartment by more than 50%.”

Griselda and Paulino Madrigal (named Plaintiffs in Amargo et al. v. Santa Clara

Valley Water District et al., supra) had been renting an apartment on South 21st Street

in San Jose for nine years at the time of the flood. It was affordable, they had good

neighbors, and it was a nice home. Then their lives were shattered:

“The flooding came with no warning and no chance to protect ourselves, our home, cars, or our possessions from dirty, fast-moving and fast rising water. We grabbed what we could and got out. Our apartment and most everything in it was ruined by the flood waters and we have already been forced to move several times. We stayed with relatives for about a month; thenhelp and were sent to a Best W estern motel for a month and a half. Then we were transferred to an apartment on El Camino Real in Santa Clara but like the other places it’s just temporary. With all this this disruption caring for our four boys, getting them to school and Paulino getting to work has been very stresstul.

It’s hard to be moved from place to place like this and our sons don’t want to move again. We are hoping flood victims like us who were renters and whose apartments were flooded out can have a future that is better than that.

UPDATE as of January 2018: Mr. and Mrs. Madrigal have not found affordable housing anywhere in San Jose and will be moving to the Central Valley in March, yet another challenge and major disruption for them and their children.” .

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

Even a few hours advance warning of what D efendants 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. Many of the Plaintiffs and their neighbors have described their losses anc

suffering in their claims filed with Defendants, such as:

d.

Samantha Lopez (a named Plaintiffs in Amargo et al. v. Santa Clara Valley Water District et al., supra), a 24-year-old with lupus who lived with her parents and siblings in an apartment in Rock Springs, left home earlyflood and was unable to return to get her medicine that she needed to take to manage her lupus. The lack of access to her medication and the severe stress related to the flood

exacerbated her lupus. As she has explained: “For me, it wasn't so much the scene of being evacuated or the fear of watching the quickly rising waters that caused me anxiety and sickness but it was the stress and overwhelming thought of not knowing when to return or what would happen to my family and me. It was watching my parents lose everything that they had worked hard for all these years, and the fear of being robbed like many families had been after such a terrible disaster that made my stress rise. It was the anticipation of waiting for my father to return after disappearing into the dark waters that night only to try and retrieve his life savings and securing our now abandoned home but only to encounter chest high dirty waters....

I had a tension in my neck, shoulders and head caused by a mind full of questions that no-one seemed interested in answering, restless nights filled with panic and anxiety waking me in fear and most alarming of all days without my daily medication for lupus. My body was starting to feel the lack of steroids and my lupus was starting to flare due to all the stress and disruption....

I think that those responsible believe that the worst things that the victims of the flood could have lost were cars, clothes and items that can be quickly replaced. I hope that I am wrong, but in the event that [ am right, I wanted to share my story as a victim and how differently and permanently it has affected me. Because I will now have to watch my health much more closely due to a flood that could have been prevented.” .

Plaintiff Mark McClure, a homeowner who was living on 20th Street with his wife and family, lost a lifetime of treasured letters from his deceased father, who grew up in the Jim Crow South and was been one of the first A frican-A mericans to join the Air Force after President Truman desegregated the U.S. military. He had carefully stored the letters, but the flood waters destroyed them nevertheless: “One of the worst things about trying to cope with flood is how to explain to my mom that all the letters ever written by my late father — letters I was entrusted to keep — turned into mush when toxic flood water flowed into our storage shed and dislodged the box from the shelf where I put them for safe keeping....

One of the constant things I wonder about is if the people who were in harm’s way had been wealthy and privileged residents of the West Side of the Valley (rather than working class and poor residents of the East Side) whether there would have been a quite different response to prevent the flood in the first place and certainly to warn the residents to evacuate with sufficient time to protect their precious memories. It seems to me that disasters like this flood usually don’t happen to the upscale west siders because the authorities take the very steps to protect them and their property that were NOT taken during the Coyote Creek flood of 2017 (and also for the earlier floods in 1997 and 1983).” .

Roma Smith (a named Plaintiffs in Amargo et al. v. Santa Clara Valley Water District

et al., supra), age 10, lived in the Olinder neighborhood with her parents and suffered

sustained trauma from having to be rescued as the flood waters started seeping into

their house:

“I was very scared... I cried for an hour... I thought the water would come in and destroy everything... ata minimum, 4 hours of warning would have helped so many people be ready, clear out basements, get sandbags, move cars, save things that can’t be replaced. If [the 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.” .

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

PLAINTIFFS

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 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.

8. 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.

9. Pursuant to Government Code Section 911.2, each of the adult Plaintiffs identified herein filed timely claims against the Water District, as well as against the City of San Jose and/or Santa Clara County, which claims set forth the circumstances upon which this action is based. Each of the Defendan public entities with which claims have been filed has expressly or by inaction denied Plaintiffs’ claims.

DEFENDANTS

10. Defendants are those governmental agencies that 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 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,

11. Defendant Santa Clara Valley Water 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.

12. Defendant City of San Jose 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. 13. Defendant County of Santa Clara 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 known as “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.”

14. 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 SCCFCWD and the Santa Clara Valley W ater Conservation District (“SCVWCD”).

15. The new agency that resulted from this merger retained the name of the SCCFCWD and the elected board of the SCVWCD, but also added two appointees named by the County Board of Supervisors. Staffs of the merged agencies were combined, and a county-wide 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 W ater District’s current name: Santa Clara Valley Water District (SCVWD).

16. Since at least November 1982, the SCVWD has known that the “multipurpose operational criteria to Coyote and Anderson Reservoirs could result in tangible flood control benefits without excessive loss in water supply” by adopting operational criteria known as a “rule curve.” Ina report submitted to the SCVWD Board of Directors, consultants recommended “Rule Curve #30” which they chose because it represented “the maximum flood control benefit without water conservation loss.” The consultants further stated as their objective: “Prior to the 1982 storm season, it became clear that [Defendant SCVW D] should, whenever possible, maximize available reservoir storage to alleviate

potential flood damages downstream of county reservoirs. Some of the worst flooding during that year occurred along Coyote Creek... It was thus decided that a comprehensive long term study should first be undertaken to evaluate the possible use of Anderson and Coyote Reservoirs for flood control purposes while minimizing any loss in water supply yield. The two reservoirs were constructed and are operated for water conservation purposes. Any flood control benefits accrue only incidentally. The objectives of this study were to develop, if possible, new operating criteria which would maximize incidental flood control storage without excessive loss in water supply.” The recommended solution was the adoption of the Rule Curve to balance water conservation with flood protection. (Source: “Multipurpose Operational Analysis for Coyote And Anderson Reservoirs” by Saah, Smith and Korbay, November 1982). This solution was belatedly adopted in the fall of 2017 well after the February 2017 Coyote Creek flood. Had the Rule Curve been in place leading up to the 2017 flood, it could have wholly prevented the flood and would certainly have significantly minimized it.

17. In an additional Engineer’s Report that evaluated the “Design Criteria” for Anderson Dam which was submitted to the SCVWD in October 1985, consultants again confirmed that a key objective for the SCVWD was the “prevention of induced flooding in Coyote Creek due to a possible increase in the one percent outflow from the Leroy Anderson Reservoir.” Citing the history contained in related reports, the consultants outlined how the SCVWD had investigated several proposed alternatives to resolve flood problems on Coyote Creek in order to provide “one percent flood protection.” They concluded that “Anderson Dam does not meet current design standards for passing the Probable Maximum Flood without overtopping the dam. The inadequate spillway capacity could lead to failure of the dam endangering the downstream urbanized area.” (Source: Planning Study consisting of the Engineer’s Report and Final Negative Declaration for Modifications to LeRoy Anderson Dam and Spillway, October 1985). Since the SCVWD failed to correct these problems that were clearly known to it for more than three decades, Plaintiffs have suffered enormous losses that would have been prevented by timely governmental action.

18. 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. 19. 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 Officeris 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, as herein, they are the persons at risk of such impending disaster.

20. 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) 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 or approval of, and/or deployment of flood control devices, mechanisms and/or procedures.

21. Notwithstanding their responsibilities as set forth in the preceding paragraph, DOES 1 through 100 failed to oversee, supervise 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.

22. Atall times mentioned herein, each of the Defendants was the agent of each of the other Defendants, and at all times acted within the scope and purpose of their agency, and each Defendant has ratified the acts of its agent.

23. Plaintiffs are unaware of the true nature and capacities of Defendants DOES 1 through 100, inclusive, and therefore sue those D efendants 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 D efendants is legally responsible for the tortious conduct alleged herein, and Plaintiffs” damages as alleged herein were proximately caused by said Defendants.

JURISDICTION AND VENUE

24. The amount in controversy exceeds the minimum jurisdictional limit for Superior Court Unlimited Jurisdiction.

25. Venue is properin 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

20. California State law applies to all claims in this action.

THE COYOTE CREEK FLOOD OF 2017

27. 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 mile watershed system managed by Defendant SCVWD. Water stored in Coyote and Anderson Reservoirs, both of which are owned and managed by the SCVWD, 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. Over the Past Three and a Half Decades, When Anderson Dam Has Overtopped, Coyote Creek Has Flooded Properties Aiong and Around its Banks.

28. 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 SCVWD in Santa Clara County combined.

29. 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 SCVWD. 30. Since 1950, each time Anderson Dam has overtopped, 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.

31. 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.”

32. 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.

33. 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.

34. In 1998, Anderson Dam overtopped and significant flooding occurred along Coyote Creek. According to the 1998 Flood report prepared by the Water District, Golden W heel mobile home park was “inundated” and residents were evacuated.

35. More recently, 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 SCVWD has noted: “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: https://www.valleywater.org/project- updates/dam-reservoir-projects/anderson-dam-seismic-retrofit..)

36. Asaresult, a 45-foot restriction was approved by the regulatory agencies (California Division of the 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 Anderson Reservoir at no more

than 68% of capacity. =

By Early J anuary 2017, Defendants Knew or Should Have Known That Anderson Reservoir Was Going to Fill and Spill Over the Top of Anderson Dam and Cause Flooding in the Mid-C oyote Creek Area Unless Defendants Took Urgent and Effective Measures to Control and Reduce Rapidly Rising Water Levels, But They Did Not Warn or Protect Residents—Including Plaintiffs and Their Families— From Preventable Harm to Their Persons and Property. 37. Inresponse to forecasts by the National W eather 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.

38. The County Office of Emergency Services (OES) established an Operational Plan Period from February 15 to February 21, 2017.

39. 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 W ater 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. Itis expected that A nderson Dam will begin spilling prior to or during the next series of storm systems. (Emphasis added)”.

40, Based, inter alia, on the history of prior floods (as recited above) and weather conditions in early January 2017, all of the Defendants knew or should have known by then, and no later than when Anderson Dam started to spill, that Coyote Creek would flood.

41. The first conference call during the Operational Plan period was at 2:00 pm on February 15. Representatives from the City of San Jose participated in that call.

42. On February 16 at 1:00 pm, County OES coordinated another call. A gain, 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”. 43. 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 W eather 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 W ater 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 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.

44, On or about February 18, 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.

45. On February 20 at 8:30 a.m., one day before the flood, County OES coordinated another conference call. Representatives of the W ater 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”.

46. 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”.

47. Later that same day, February 20, County OES coordinated another call at 3:00 p.m.. representatives of the City of San Jose, the Water District and the National W eather 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. 48. The next day, the day of the flood, February 21, 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”.

49, San Jose Mayor Sam Liccardo has repeatedly 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 has also 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/.)

50. 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).

51. 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.

52. 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.

53. Many Plaintiffs were terrified by emergency orders to evacuate their homes under traumatic conditions after their homes were already flooded. Many Plaintiffs were also removed from their homes in boats by the San Jose Fire Department. Many Plaintiffs 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. 54. Anindependent analysis done by emergency management consultant Witt O’Brien concluded that San Jose’s response to the devastating Coyote Creek Flood of 2017 included repeating 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 W ater District.

C. In Ear%] anuary, Defendant W ater District Belatedly Made a Plan to Release and %’umlp a%elrt Out of Anderson Reservoir to Prevent Flooding, But Failed to mplement It.

5b. Starting on or about January 9, 2017—a month and a half before the flood—the W ater 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 W eather Service. The District also tracked and monitored the rise in water levels at A nderson 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.

56. Despite the predicted storms and the fact that, as of January 22, 2017, Anderson Reservoir was already in excess of its 68% restricted capacity prescribed by the California Division of the Safety of Dams, the Water District was in active denial of the urgency of controlling water levels at Anderson Dam, in spite of the fact that it 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.”

57. Had the District made plans in a timely manner (and actually implemented them) fora pump over solution and obtained necessary permits in a timely manner, they could have prevented (or significantly reduced the impact of) the flood.

58. The Defendants’ abject failure for more than three and a half 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.

[111] [111]

FIRST CAUSE OF ACTION

rse C ondemnation All Plamtlffs v. All Defendants

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

60. Asadirect 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.

61. 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.

SECOND CAUSE OF ACTION

(Failure to Perform and Violation of Mandatory Duties) All Plaintiffs v. All Defendants

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

63. Atall 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 A nderson Dam and Reservoir as well as the Coyote Creek watershed, pursuant inter alia to the California W ater Code.

064. Atall times alleged herein, Defendants, and each of them, were charged with the responsibility for the maintenance, inspection, repair, and supervision of Coyote Creek.

65. Atall times alleged herein, Defendant Santa Clara County was the agency responsible under federal law with managing and operating the Integrated Public Alert & Waming System (“IPAWS”) for the benefit and protection of residents in its jurisdiction in the event of an impending disaster. IPAWS allows access to a wide range of alerting methods including Wireless Emergency

Alerts (WEA). The WEA system allows sending alerts, much like text messages to cell phones based on the current location of the phone. This service does not require prior registration. Defendant Santa Clara County failed to use the WEA system (or any emergency warning system) to alert Plaintiffs to evacuate, 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.

66. Atall 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 A gency 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

67. Inundated San Jose residents including many 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 to the County, the County’s Public Health Officer and staff and the County’s Environmental Health department, 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.

68. Asa 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) All Plaintiffs v. All Defendants

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

70. 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.

71. 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 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.

72. Asadirect 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.

[111]

FOURTH CAUSE OF ACTION

egligence All Plaintiffs v. All Defendants

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

74. 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.

75. 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.

76. 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.

77. 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.

78. Asadirect 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

respass All Plaintiffs v. All Defendants

79. Plaintiffs re-allege and incorporate herein by reference each and every allegation of the foregoing paragraphs as if fully set forth. 80. Onorabout 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.

81. On or before February 21, 2017, Defendants W ater District and Does 1 through 100 intentionally, knowingly, carelessly, and negligently performed substandard maintenance, operation, control or supervision of Anderson Dam.

82. On or before February 21, 2017, Defendants W ater 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.

83. Asadirect and proximate result of those Defendants’ conduct, large quantities of water owned, managed and/or controlled by them moved onto Plaintiffs property without Plaintiffs’ permission, and thereby constituted a trespass and interference with Plaintiffs’ rights to peaceful possession of their property, in violation of the law; and Plaintiffs sustained injury and damage including

fears, anxiety, and emotional distress as hereinafter described, and in an amount to be proven at trial.

SIXTH CAUSE OF ACTION

(Dangerous Condition of Public Property) All Plaintiffs v. All Defendants

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

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

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

87. 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, D efendants 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.

88. 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.

89. Atall times, Defendants and each of them knew or should have known that A nderson Dam and Reservoir and Coyote Creek were in a dangerous and defective condition.

90. 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 dangerous condition but failed to implement it in a timely manner, despite the forecast from the National W eather 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.

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

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

SEVENTH CAUSE OF ACTION

(Negligent InfTiction of Emotional Distress) 11 Plaintiffs v. All Defendants

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

93. 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.

94. Asaresult 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. 95. Asadirect 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 InfTiction of Emotional Distress) All Plaintiffs v. All Defendants

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

97. Plaintiffs and their neighbors in the areas flooded in February 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 V alley that would have been flooded by overtopping of Calero Reservoir 20 years ago had the SCVWD 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. 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:

a. 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.

b. Knowing weeks 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 98.

install 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.

99.

The wrongful acts of Defendants were done maliciously, oppressively, fraudulently and

in conscious disregard for the safety and health of the public

100.

The conduct of Defendants was without justification and has caused plaintiffs and others

impacted by the flood to bear a disproportional, unfair burden.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for judgment against D efendants as follows:

d.

o o

@

General damages as alleged herein;

Damages for loss of property as well as the diminution of property values, according to proof;

Special damages as alleged herein and as according to proof;

Cost of replacement, repair and/or improvement according to proof;

Interest on the principal amount of their damages from February 21, 2017 until paid,; Costs of suit, including reasonable attorneys’ fees and all costs and expenses of litigation;

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

Injunctive relief requiring Defendants to put in place and test: 1) appropriate procedures for timely notification to residents in the event of an emergency; 2) pumps and/or other mechanisms to prevent and or mitigate future occurrences; and 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 physical and emotional

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 emergencies, 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: February 7, 2018

LAW OFFICE OF AMANDA HAWES

Amanda Hawes, Esq.