This case was last updated from Santa Clara County Superior Courts on 08/07/2019 at 18:41:54 (UTC).

McCreight v. Santa Clara Valley Water District, et al.

Case Summary

On 03/22/2018 McCreight 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.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ******5282

  • Filing Date:

    03/22/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • 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

Plaintiff

McCreight, Barbara

Defendants

Santa Clara Valley Water District

City of San Jose

Other

Superior Court of California

Attorney/Law Firm Details

Plaintiff Attorney

Hare, Jeffrey B

Other Attorney

Superior Court of CA, County of Santa Clara

 

Court Documents

Complaint: Amended

Complaint Consolidated First Amended: Comment: Consolidated First Amended Complaint

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:

Civil Case Cover Sheet

Civil Case Cover Sheet: Comment: COMPLEX

Complaint (Unlimited) (Fee Applies)

Complaint (Unlimited) (Fee Applies):

 

Docket Entries

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

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  • 07/06/2018
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  • Complaint: Amended - Complaint Consolidated First Amended: Comment: Consolidated First Amended Complaint

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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; Result: Held; Comment: (1st CMC)

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  • 06/08/2018
  • Minute Order

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  • 06/08/2018
  • Minute Order

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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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  • 03/22/2018
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  • Summons: Issued/Filed - Summons Issued Filed:

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  • 03/22/2018
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  • Civil Case Cover Sheet - Civil Case Cover Sheet: Comment: COMPLEX

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  • 03/22/2018
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  • Complaint (Unlimited) (Fee Applies) - Complaint (Unlimited) (Fee Applies):

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Complaint Information

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NATURE OF THE CASE AND GENERAL ALLEGATIONS

7. This action arises out of flooding which occurred along a portion of Coyote Creek sometimes known as the “mid-Coyote Creek” portion that runs roughly from Tully Road to the south (upstream) to Montague Expressway to the north (downstream). This flooding took place on February 21, 2017, when Anderson Reservoir “filled and spilled,” dumping several thousand cubic feet per second of runoff into Coyote Creek. As a result of this overspilling, and compounded by surface runoff from storms which occurred on February 20, the Coyote Creek channel filled and in places overspilled its banks in the area along the reaches of Coyote Creek located within the mid-Coyote Creek area, flooding homes in communities such as the Rock Springs, Olinder, and Naglee Park neighborhoods. 8. The flooding commenced early on Tuesday morning, February 21, 2017, and continued throughout the day and into the early evening hours, when the peak flows began to subside. As the water levels rose throughout the day, residents frantically tried to rescue their personal

possessions, but as the flooding occurred without any warning or notice to the Plaintiff, many

were unable to save or remove their belongings, or take reasonable measures to protect their personal or real property. Basements and first floors filled with filthy, muddy water contaminated with pollutants from upstream runoff. In many cases, the onlyJose Fire Department Urban Search and Rescue (USAR) boats that had been dispatched to the scene.

9. Santa Clara County contains several watersheds, the largest of which 1s the Coyote Creek watershed, measuring over 300 square miles in size. Water from rainfall and other sources within this watershed primarily drain via Coyote Creek into the San Francisco Bay at the northern boundary of the City of San Jose adjacent to Alviso, California.

{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 controlpage 3 can't be parsed

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upcoming storm forecast for Friday (February 17) could increase the flow in Coyote Creek to 5000 cfs “due to additional spillway flow.”

24. During the OES Conference Call on Thursday, February 16, the City of San Jose reported 1t was “Coordinating with city departments to identify potential evacuation center and shelter locations in the event of Coyote Creek flooding.”

25, During the OES Conference call on Friday, February 17, the NWS noted there would potentially be 4 inches of rain the mountains and 3 inches of rain in the foothills. The DISTRICT reported “Concern for Monday storm on Coyote Creek. Projected 7000 cfs peak spillway flow.” The City of San Jose reported that four warming centers were open Monday through Wednesday morning, and that calls reporting downed trees were up.”

26. During the OES Conference call on Monday morning, February 20, the NWS reported a Flood Warning was in effect for Coyote Creek at Edenvale,” and reported moderate to heavy rainfall over the next 6 — 12 hours. The DISTRICT reported that four reservoirs were spilling: Anderson, Uvas, Lexington, and Coyote. The DISTRICT reported that “Anderson is projected to hit 5000 — 8000 cfs over spillway with peak flow at 10am tomorrow.” The City of San Jose reported that the Emergency Operations Center (EOC) had been activated; they were monitoring reservoirs and streams, and that they would need assistance for creek debris cleanup. San Jose Fire Department had doubled Urban Search and Rescue (USAR) Staffing.

27. On Monday afternoon, February 20, the DISTRICT sent an e-mail update stating that peak spill flow forecasts were now between 7,000 and 9,000 cfs, and with respect to Coyote Creek Flood Thresholds, it reported “7,400cfs — Rock Springs neighborhood.”

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 issuing 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 of the day the long-predicted flooding was impacting neighborhoods throughout the mid-Coyote Creek area of San Jose, the CITY was “creating a flyer” to distribute to “potential flood areas.” 32. Despite daily participation in the OES Conference calls commencing on February 15, at no time prior to Tuesday, February 21, did the DISTRICT or the CITY undertake any measures

or efforts to warn residents of the possibility of flooding. Moreover, despite the fact that the DISTRICT and the CITY knew, from past experience, that overspilling of Anderson Reservoir would result in flooding in the Rock Springs, William St Park, Arroyo Way, and Golden Wheel mobilehome park areas, among others, no effort was made to notify, alert or otherwise warn the residents, homeowners, or occupants of these properties of the upstream conditions.

33. Just as occurred in January, 1997, local news networks broadcast dramatic images of the Anderson Reservoir spillway over the weekend of February 18 and 19, and DISTRICT and CITY offices were closed for the three-day Presidents’ Day weekend. On Sunday afternoon, February 19, one local news channel broadcast a report from Anderson Reservoir, showing the spillway, and saying that flooding was expected to occur along Coyote Creek. However, attempts to reach DISTRICT or CITY officials were either unsuccessful or misdirected. No alerts or notices to residents or homeowners or occupants living near or along Coyote Creek were sent out.

34. On Sunday afternoon, February 19, concerned citizens were seeing creek levels rising and attempted to notify authorities, including firemen at Station 8, located immediately adjacent to Coyote Creek at the East Santa Clara Street bridge. The calls were either unanswered or misdirected. A phone call to 911 to report unusually high levels of water in Coyote Creek were relayed to the San Jose Water Company. In a phone conversation with a hydrologist with the DISTRICT late Sunday evening, the hydrologist confirmed that the Alert Gauges were reporting higher flow rates of water in Coyote Creek as the spilling continued. The NWS was reporting that there would be a significant storm event on Monday, February 20.

35. On Monday, February 20, attempts reach the DISTRICT or CITY were unsuccesstul, due to the fact that it was a President’s Day Holiday. A caller to the DISTRICT to request deployment of sandbags was told that it was not the District’s policy to distribute sandbags. At no time was there any alert or warning issued by either the DISTRICT or CITY, despite the fact

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50. Plaintiff is informed and believe, and on this basis allege, 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. Plaintiff is further informed and believes, 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 of inadequate capacity, and without proper management of the water levels, rainfall and runoff could cause the water levels to rise to unsafe levéls in violation of DSOD restrictions.

53. Plaintiff is informed and believe, and on this basis allege, that the DISTRICT has, prior to February 21, 2017, utilized a combination of pumps and/or siphon systems to reduce the water levels in other reservoirs owned, maintained, managed and operated by the DISTRICT, and

further, Plaintiff alleges on the basis of this information and belief that the timely installation of pumps and/or siphons would have been feasible as a mitigation measure prior to February 21, 2017. However, DISTRICT failed to take timely and appropriate steps to seek DSOD review of a pump system until one week prior to the flooding that occurred on February 21, 2017. Further, by waiting so long, and characterizing the request to DSOD as only an informal review for possible future implementation, DISTRICT failed to convey any sense of emergency or urgency in making its request to DSOD.

54. Plaintiff is informed and believes and on this basis alleges that prior to February 21, 2017, Defendant DISTRICT, which not only is the only agency in the County of Santa Clara charged with the responsibility to manage and maintain a system for flood control and water supply, and which owns, maintains, operates and/or manages several hundred square miles of watershed areas within the County, including but not limited to the Coyote Creek Watershed area, was aware of substantial accumulation of debris, vegetation, overgrowth, downed trees, and other obstacles within the areas under the operational jurisdiction of the DISTRICT, and therefore create and/or allow a dangerous condition to exist by restricting or impeding water flo through the creek and exacerbate conditions of flooding. Although the DISTRICT took active measures in other watershed areas to remove vegetation, overgrowth, debris and other obstacles, Plaintiff is informed and believes, and on that basis alleges that little to no effort was made by DISTRICT to take preventative measures to prevent, mitigate, or manage portions of Coyote Creek in the areas known as the mid-Coyote Creek reaches.

55. For a period of approximately five (5) years prior to the winter of 2017, the lack of rainfall and low snowpack conditions resulted in a well-known and highly publicized condition known as a “drought.” By early January, 2017, it was apparent that weather patterns had changed, and forecasts called for exceptional amounts of rainfall throughout Northern California. Plaintiff alleges that since 1997, when the last major flooding Defendant DISTRICT had plenty of time, knowledge, and ability to take measures to address the dangerous conditions, including,

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along Coyote Creek to mitigate against damages which would result if Anderson Reservoir filled and spilled.

56. In addition, Defendant CITY, which also owns, controls, and/or manages property along Coyote Creek, including certain public land immediately adjacent to Coyote Creek, and which owns, manages, operates and maintains storm drain systems located within public streets, easements and right of ways, failed to take reasonable steps to inspect, maintain, and/or operate said properties and systems, including, but not limited to, the failure to ensure that particularly low-lying areas were adequately protected when advised of the potential for substantial flooding expected during the week of February 20.

57. Moreover, Defendant CITY, which is responsible for providing police, fire and other emergency services to its residents, occupants, property owners, visitors and others, knew at leas a week in advance that there was a potential for dangerous conditions that would result from flooding along Coyote Creek, and with the benefit of historical knowledge and other information, could easily have predicted where flooding would most likely occur. Despite this knowledge, CITY failed to take any action to warn, prevent, or mitigate against damages that CITY knew, or should have known, was highly likely to occur when Anderson Reservoir filled and spilled, as was forecast well in advance of the actual flooding.

58. Asalegal and proximate cause of the above-stated failures of Defendants, and each of them, to take reasonable measures to warn, alert, prevent, or mitigate against damages which were likely to occur, Plaintiff suffered damages that they would otherwise would not have suffered.

59. By reason of the foregoing, Plaintiff 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.

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SECOND CAUSE OF ACTION INVERSE CONDEMNATION

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 Plaintiff” 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 Plaintiff 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 Plaintiff” property is located, was a foreseeable and proximate cause of the flooding which occurred on February 21, 2017, and the resulting damage to Plaintiff* real and personal property.

66. Plaintiff 1s 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, Plaintiff suffered damages to their real and personal property.

67. Asadirect and proximate result of the flooding that resulted due to Defendant’s actions or failure to take action, Plaintiff 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., Defendahts’ 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. Asaresult of the flooding, Plaintiff real and personal property has been damaged in an amount that still being assessed, but that 1s in excess of the limited jurisdictional amounts of the Superior Court. Plaintiff will seek permission to amend this Complaint to provide an updated and more accurate statement of damages when that amount becomes known to Plaintiff.

69. Plaintiff have incurred and will continue to incur attorney, appraisal, construction, and engineering fees for the prosecution of this action, which fees are recoverable under the authority of Code of Civil Procedure §1036.

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THIRD CAUSE OF ACTION NUISANCE

Against All Defendants 70. Plamntiff incorporate by reference Paragraphs 1 through 69, inclusive, of this Complaint as though fully set forth herein. 71. Defendant DISTRICT owns, controls and operates Anderson Reservoir and Dam, and is responsible for maintaining, managing and operating portions of the Coyote Creek Watershed, including but not limited to Coyote Creek and its channels and tributaries. 72. Defendant CITY owns, controls and maintains a public storm drain system that includes storm drain inlets, underground pipes, and discharge outlets located within or near the banks of Coyote Creek. 73. Defendant DISTRICT’s operation and management of Anderson and Coyote Reservoirs, and its failure to keep Anderson Reservoir from filling and spilling, created or permitted a condition to exist that was and continues to be harmful to the public’s health, and/or was operated in a manner that interfered with the comfortable enjoyment of life or property, and resulted in flooding to Plaintiff” property. 74. Defendant CITY s operation, control, maintenance and management of the storm drain system in certain areas near the mid-Coyote Creek area created or permitted a condition to exist that was and continues to pose harm to the public’s health, and/or was operated in a manner that interfered with the comfortable enjoyment of life or property, and resulted in a danger of flooding to a substantial number of residents, homeowners, and occupants of property living in or near the storm drain systems, including but not limited to Plaintiff. 75. The above-described conditions caused or permitted to exist by Defendants, and each of them, affected a substantial number of individuals, including residents, homeowners, and

| occupants of properties located adjacent to or near Coyote Creek. 76. An ordinary person would be reasonably annoyed or disturbed, and in fact Plaintiff were annoyed and disturbed, by the conditions created and/or permitted to exist as a result of Defendants’, and each of them, conduct and/or failure to act.

77. The seriousness of the harm created by Defendants’ conduct, and/or failure fo take appropriate measures to prevent the harm, outweighs the social utility of Defendants’ conduct. 78. Plaintiff did not consent to Defendants’ conduct.

79. Plaintiff suffered harm that was different from the type of harm suffered by the general public, including, but not limited to damage and/or loss of personal and real property, displacement from their home, the need to find alternative housing, and the need to replace, repair and/or restore their property.

80. Defendants’ conduct was a substantial factor in causing harm to Plaintiff.

FOURTH CAUSE OF ACTION NEGLIGENCE

Against All Defendants 81. Plaintiff incorporates by reference Paragraphs 1 through 80, inclusive, of this Complaint as though fully set forth herein. 82. Defendants, and each of them, had duties and responsibilities which required that they exercise reasonable and ordinary care in the management, control, maintenance and operation of public work facilities such as Anderson Reservoir and the City’s storm drain system, as well as to carry out the task of maintaining safe and clean creeks within the watershed area, for the benefit of the entire public, including but not limited to Plaintiff. 83. Defendant DISTRICT was fully aware that it was and had been operating Anderson Reservoir under restrictions imposed by DSOD in 2011, prohibiting storage of more than 68% o capacity due to concerns about seismic instability of the Anderson Dam and the extremely high

level of risk to persons and property in the event of dam failure. Further, DISTRICT was aware, 10

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based on previous events including the flooding in 1997 and 1998, that overspilling of Anderson Reservoir would result in flooding and damage to persons and property along the mid-Coyote Creek reaches. Despite the clear foreseeability of damages that could result from allowing Anderson Reservoir to fill and spill, DISTRICT failed to take reasonable steps to abate, prevent, or otherwise reduce the level of risk and therefore mitigate damages.

84. Defendant CITY is responsible for providing services pursuant to its municipal authority to provide for the public health, safety and welfare of its residents, including, but not limited to maintaining storm drain systems, emergency preparedness operations, and providing police and fire services. Defendant CITY failed to take reasonable steps to ensure that the position of the Director of Emergency Services, or in the alternative that the services and duties of that position were being properly performed, during a period of time from approximately November, 2017, through the date of the flooding in February, 2018. Despite NWS forecasts of exceptionally high levels of rainfall, and despite specific warnings issued by NWS and other agencies during the week prior to the flooding, CITY failed to take any reasonable measures to warn or alert residents of the danger, inspect or confirm that the storm drain systems in the area likely to flood were functioning, and further failed to properly coordinate with DISTRICT or County or other agencies in an effort to mitigate the hazard.

85. Defendants, and each of them, had duties which required them to exercise reasonable and ordinary care in using public resources to identify, mitigate, and attempt to prevent a known dangerous condition, namely the damage that was the foreseeable consequence of Defendants’ failure to properly maintain, manage, and operate the public works under their respective jurisdictions and operational control, and at a minimum, to alert and warn the public, including and specifically Plaintiff, when it became substantially likely that flooding would occur that would result in damages to Plaintiff.

86. Defendants, and each of them, created, operated, and were responsible to maintain and

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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. Plaintiff, 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.

03. 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 Plaintiff 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, As adirect and proximate result of the negligent and careless failure of Defendant DISTRICT to discharge its aforementioned mandatory duties, Plaintiff” real and personal property was severely damaged by water, silt and other debris from the flooding that occurred,

thereby causing Plaintiff to sustain the damage described herein.

PRAYER FOR RELIEF AND DEMAND FOR JURY

WHEREFORE, Plaintiff pray that the Court enter a judgment against Defendants, and each of them, that: 1. Awards compensatory, statutory and all other damages sustained by Plaintiff as to all

causes of action where such relief is permitted; . Awards Plaintiff the costs of this action, including reasonable attorneys’ fees and EXPEnSESs;

. 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.

. Plaintiff demand a jury trial on all issues so triable.

JEFFREY B. HARE, APC A Professional Corporation