Mass v. City of San Diego CA4/1

Filed 6/24/21 Mass v. City of San Diego CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

HOWARD J. MASS et al., D077307

Plaintiffs and Appellants,

v. (Super. Ct. No. 37-2018-
00009001-CU-EI-CTL)
CITY OF SAN DIEGO,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County,
Joel R. Wohlfeil, Judge. Affirmed.
David A. Kay, for Plaintiffs and Appellants.
Mara W. Elliott, City Attorney, George F. Schaefer, Assistant City
Attorney, and Tyler L. Krentz, Deputy City Attorney, for Defendant and
Respondent.

Plaintiffs Howard J. Mass, Nancy M. Mass, and Jeanine Coffman
(together Plaintiffs) appeal from a judgment in favor of defendant City of San
Diego (the City), following the grant of the City’s motion for summary
judgment.
 In the underlying complaint, Plaintiffs alleged that the City improperly
“approved[,] designed, constructed, maintained, modified, repaired,

controlled, and/or caused to be constructed” a “brow ditch”1 on their
residential properties. Plaintiffs sued the City for damages and injunctive
relief when, following a severe rainstorm in 2017, a portion of the brow ditch
on their properties was undermined, which washed water, mud, and debris
into their backyards.
In granting summary judgment, the trial court ruled that the City met
its initial burden of producing a prima facie showing of a complete defense to
all the claims—namely, that the brow ditch was not a public improvement—
and that Plaintiffs did not meet their responsive burden of establishing a
triable issue of material fact. Because, as we explain, Plaintiffs have not
shown on appeal that the brow ditch either provides a legally cognizable
public benefit or is a public improvement, they did not establish reversible
error. Accordingly, we will affirm the judgment.

1 The City tells us that a “brow ditch” is “a small concrete open trench
that catches and channels surface water.” Plaintiffs do not explain
otherwise. For purposes of this opinion, we accept the City’s definition.

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 I. FACTUAL BACKGROUND2

A. The Parties and Plaintiffs’ Properties3
In 1963, in approving Subdivision Map No. 5280, the City created the
College Valley Subdivision (College Valley) in the College Area of San Diego
south of San Diego State University. In their complaint, Plaintiffs allege that
they own two properties in College Valley on Maisel Way in San Diego
(Plaintiffs’ Properties): plaintiffs Mass own lot 19 with a street address of
5463 Maisel Way (Mass property); and plaintiff Coffman owns lot 18 with a
street address of 5455 Maisel Way (Coffman property).
Plaintiffs’ Properties are next to each other in the middle of the block
on the south side of Maisel Way, a small cul-de-sac with fewer than 10 lots on
the south side of the street, with the Mass property directly to the east of the
Coffman property. Both backyards, as well as other backyards on the south
side of Maisel Way, have a steep uphill area which contains a concrete brow
ditch that runs horizontally near the top of the hill. The flow of the brow
ditch is from east to west and runs primarily straight across the hillside,
except for a small portion on the Coffman property which curves back and
forth. The curved portion of the brow ditch was part of a 1996 repair of the
(formerly straight) brow ditch, which the City performed when a City sewer

2 “ ‘Because this case comes before us after the trial court granted a
motion for summary judgment, we take the facts from the record that was
before the trial court when it ruled on that motion.’ ” (Wilson v. 21st Century
Ins. Co. (2007) 42 Cal.4th 713, 716-717 (Wilson).)

3 For our understanding and description of the real estate involved, we
principally rely on the maps found at pages 96 (aerial photograph), 154-156
(Map No. 5280), and 158-159 (Map No. 2818) of the appellants’ appendix.
Because the parties are familiar with the record, there is no need to
reproduce them in this opinion.

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main failed, causing damage to the brow ditch. (See pt. I.C., post.) At the
time, the owners of the Coffman property (plaintiff Coffman and her
husband) authorized the City to perform the repairs to the property.
Across the southern border of Plaintiffs’ Properties on the southern side
of Maisel Way (and thus across the southern boundary of College Valley) is
the northern boundary of the El Cerrito Heights Unit No. 4 Subdivision
(El Cerrito Heights). The City earlier created this subdivision in 1951 by its
approval of Map No. 2818. The northern boundary of El Cerrito Heights—
which backs up to and is at a higher elevation than Plaintiffs’ Properties—is
the southern boundary of College Valley. Lots 12 and 13 of El Cerrito
Heights, which abut Plaintiffs’ Properties in College Valley to the north, are
the last two lots on a short cul-de-sac on Redland Place, which contains only
six lots on the north side of the street.
B. The February 2017 Incident
On February 28, 2017, during a heavy rainstorm, a part of the concrete
brow ditch failed. In their complaint, Plaintiffs allege that this failure of the
brow ditch caused damage to each of Plaintiffs’ Properties (February 2017
Incident). The part of the brow ditch that failed in the February 2017
Incident is east (upstream) of the portion of the brow ditch that the City
repaired in 1996 when its sewer main failed. (See pt. I.C., post.)
C. The History of the Brow Ditch
The brow ditch is located on private property and drains runoff only

from private property.4 The parties agree that a private party constructed

4 The City presented evidence that supported a proposed undisputed fact
that the brow ditch only drains runoff from private property in El Cerrito
Heights. Plaintiffs disputed this evidence by stating that they do not know
the source of the water that is collected and flows through the brow ditch.

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the brow ditch, likely as part of the development of College Valley. According
to Plaintiffs’ expert, “th[e] brow ditch would have been constructed as part of
the improvements for the subdivision, and those are usually done by the
private developer.”
There is no evidence that the City ever planned, installed, or regularly
maintained the brow ditch. The evidence further establishes that there are
no records that the City ever “constructed a concrete brow ditch” in or near
Plaintiffs’ Properties.
Similarly, the City’s Storm Water Division database does not have any
records that the City either operated or maintained a concrete brow ditch in
or near the backyards of Plaintiffs’ Properties. Likewise, the City’s
Transportation and Storm Water Department does not have a record of any
maintenance ever having been scheduled for that brow ditch. This is
consistent with the fact that the City has no legal access to reach the brow
ditch on Plaintiffs’ Properties.
There is no evidence that anyone attempted to dedicate the brow ditch
to the City or that the City ever attempted to accept a dedication of the brow

ditch.5

Such a response does not result in a disputed fact for summary judgment
purposes. (See Kojababian v. Genuine Home Loans, Inc. (2009) 174
Cal.App.4th 408, 419 (Kojababian) [where a party does not have evidence to
oppose summary judgment, but believes it exists, the party must seek a
continuance].)

5 Dedication is “a grant and a gift of an interest in land by a private
owner for the public use.” (Yox v. City of Whittier (1986) 182 Cal.App.3d 347,
353, fn. 4 (Yox).) It may occur by statute or by common law. (Mikkelsen v.
Hansen (2019) 31 Cal.App.5th 170, 175.) “Dedication of private property for
public use requires an offer of dedication by the owner and an acceptance of
the offer by the public entity.” (Yox, at p. 353, fn. 4.)

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 El Cerrito Heights (Map No. 2818) contains a four-foot undefined
easement which circles the entire subdivision—i.e., not just the
northwestern-most lots which abut the southern boundary of College Valley
where the brow ditch and Plaintiffs’ Properties were built many years later.
It is not labeled as a “drainage easement,” although drainage easements are
typically labeled as such, and other easements on the map contain such a
label. In short, the brow ditch in College Valley is not located within the
four-foot undefined easement in El Cerrito Heights.
College Valley does not have a public easement at the location of the
brow ditch. To the extent College Valley benefits from the brow ditch, only a
select few lots, including Plaintiffs’ Properties, are potentially affected.
The brow ditch does not connect to any upstream public drainage

facility or drain water from any public drainage facility.6 The only City
facility near the brow ditch is an underground sewer main. This sewer main
runs north-south and is located between College Valley lots 18 (the Coffman
property) and 17 (the lot to the west of the Coffman property).
In 1996, a different City sewer main failed, causing damage to a part of
the brow ditch located in the Coffman Property—i.e., to the west
(downstream) of the part that failed in the February 2017 Incident. The City
hired a contractor both to clean up damage from the failed sewer main and to
repair the damaged part of the brow ditch. The City requested, and Coffman
gave, written permission to the City’s contractor to go onto the Coffman
property to effect the clean-up and repairs. The repaired part of the brow

6 Plaintiffs dispute this evidence by again stating that they do not know
the source of the water that is collected and flows through the brow ditch.
Such a response does not result in a disputed fact for summary judgment
purposes. (See Kojababian, supra, 174 Cal.App.4th at p. 419.)

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ditch curves to the south and back to the north (like a “U”), whereas the rest
of the original brow ditch runs in a straight line (downstream from east to
west).
On four or five occasions between 1981 and 1987, two to three City
workers cleaned out surface debris in that part of the brow ditch that
traverses the few lots on the south side of Maisel Way.
Since then, the evidence is that only private property owners, including
Plaintiffs and others, cleaned, maintained, and repaired the brow ditch. For
example, prior to the February 2017 Incident, one of Plaintiffs cleaned the
brow ditch “multiple times”; and another of Plaintiffs and her husband
cleaned the brow ditch “about ten to 15 times,” including hiring a professional
company on at least one occasion. Also, “a bunch of times through the years,”
one of Plaintiffs’ neighbors hired another neighbor to clean the brow ditch. In
the late 1990’s or early 2000’s, one of Plaintiffs installed a fiberglass bridge to
repair a portion of the brow ditch in her yard. Prior to the February 2017
Incident, one of Plaintiffs’ neighbors reinforced a section of the brow ditch
with more dirt. In addition, “[m]ost likely before the [February] 2017
[I]ncident,” one of Plaintiffs patched a hole in the brow ditch in her yard with
foam and concrete. Finally, approximately two weeks after the February
2017 Incident, another of Plaintiffs installed a 40-foot pipe “into the brow
ditch to try to regain some of the drainage.”
At no time did any of Plaintiffs ask the City for permission to clean or
repair the brow ditch, seek help from the City with cleaning or repairing the
brow ditch, or (prior to the present litigation) complain to the City about
cleaning or repairing the brow ditch.

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 II. PROCEDURAL BACKGROUND
In February 2018, Plaintiffs filed the underlying action. They sued the
City for damages and an injunction, alleging causes of action for

condemnation, nuisance, trespass, and injunctive relief,7 based on the
injuries they alleged they suffered as a result of the February 2017 Incident.
All of Plaintiffs’ claims are based on the allegations that the City “approved[,]
designed, constructed, maintained, modified, repaired, controlled, and/or
caused to be constructed said brow ditch, and that the brow ditch is in the
wrong location.” According to the complaint, as a “direct and proximate
result of the City planning, approving, constructing, maintaining, modifying,
repairing and/or operating the brow ditch,” following the February 2017
Incident, “a large portion of the brow ditch at [Plaintiffs’ Properties] was
undermined and water, mud and debris washed down into the backyard of
each property, causing damage.”
In answering the complaint, the City filed a general denial and
asserted a number of affirmative defenses, including that the City “did not
and does not own, operate or control the brow ditch that caused Plaintiffs’
harm.”
The City moved for summary judgment (as to the complaint) or,
alternatively, summary adjudication (as to each of the causes of action) on
the following grounds: (1) The brow ditch is not a public improvement as a
matter of law; and, independently, (2) Plaintiffs cannot prove that the City’s
conduct caused the failure of the brow ditch. With regard to the cause of

7 “ ‘Injunctive relief is a remedy, not a cause of action.’ ” (Guessous v.
Chrome Hearts, LLC (2009) 179 Cal.App.4th 1177, 1187; accord, Art Movers,
Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 647 [an injunction “is merely a
remedy for a proven cause of action”].)

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action for inverse condemnation, the City also sought summary adjudication
for the additional reason that the brow ditch does not serve a public use.
Following briefing and oral argument, the trial court granted the City’s
motion for summary judgment. In short, the court ruled that, because “the
undisputed material facts demonstrate [the City] did not design, construct or

maintain the subject brow ditch[,] . . . the City is not liable[.]”8
The court entered a judgment in favor of the City and against
Plaintiffs, and Plaintiffs timely appealed.
III. DISCUSSION
Plaintiffs argue that the trial court erred, since they presented triable
issues of material fact as to: whether the brow ditch provided a public
benefit; and whether the City explicitly or implicitly approved or accepted the
brow ditch. As we explain, Plaintiffs have not met their burden of
establishing reversible error.
A. Summary Judgment Standards
Because the trial court’s judgment is presumed correct, Plaintiffs
(as the appellants) have the burden of affirmatively establishing reversible
error. (Jameson v. Desta (2018) 5 Cal.5th 594, 609.)
“On appeal after a motion for summary judgment has been granted,
we review the record de novo, considering all the evidence set forth in the
moving and opposition papers[.]” (Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 334; accord, Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 860 (Aguilar).) We liberally construe and reasonably deduce inferences
from the opposing party’s evidence, resolving any doubts in the evidence in

8 The trial court also overruled the Plaintiffs’ evidentiary objections.
There is no argument on appeal that the court erred in its evidentiary
rulings.

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that party’s favor. (Wilson, supra, 42 Cal.4th at p. 717; Code Civ. Proc.,
§ 437c, subd. (c); further unidentified statutory references are to the Code of
Civil Procedure.) This rule of liberal construction also applies to expert
testimony and, in particular, “ ‘its sufficiency to create a triable issue of
fact.’ ” (Michaels v. Greenberg Traurig, LLP (2021) 62 Cal.App.5th 512, 524
(Michaels).)
A defendant is entitled to a summary judgment on the basis that the
“action has no merit” (§ 437c, subd. (a)) only where the court is able to
determine from the evidence presented that “there is no triable issue as to
any material fact and that the moving party is entitled to a judgment as a
matter of law” (§ 437c, subd. (c)). A cause of action “has no merit” if one or
more of the elements of the cause of action cannot be established or an
affirmative defense to the cause of action can be established as a matter of
law. (§ 437c, subd. (o).)

Thus, the moving defendant has the ultimate burden of persuasion9
that one or more elements of the cause of action at issue “cannot be
established” or that “there is a complete defense to the cause of action.”
(§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849-850, 853-854.) In
attempting to achieve this goal, the defendant has the initial burden of

production10 to make a prima facie showing of the nonexistence of any

9 The burden of persuasion, sometimes referred to as the burden of proof,
means the obligation of a party “to establish by evidence a requisite degree of
belief concerning a fact in the mind of the trier of fact or the court.” (Evid.
Code, § 115.)

10 The burden of production means “the obligation of a party to introduce
evidence sufficient to avoid a ruling against him on the issue.” (Evid. Code,
§ 110.)

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triable issue of material fact. (§ 437c, subd. (p)(2); Aguilar, at p. 850.) If the
defendant meets this burden, then the burden of production shifts to the
plaintiff to establish the existence of a triable issue of material fact. (§ 437c,
subd. (p)(2); Aguilar, at pp. 850-851.)
B. Plaintiffs Did Not Meet Their Responsive Burden of Establishing the
Existence of a Triable Issue of Material Fact
As we explain, because Plaintiffs have not shown that the brow ditch
either provides a legally cognizable public benefit or is a public improvement,
they did not establish reversible error in granting the City’s motion as to the

cause of action for inverse condemnation.11
A claim for inverse condemnation derives from article I, section 19, of
the California Constitution which requires that just compensation be paid

when private property is “taken or damaged for public use.”12 (See Belair v.

11 Plaintiffs have forfeited appellate review of the judgment as to the
remaining causes of action, because Plaintiffs did not present argument or
authority as to any error regarding summary judgment/adjudication of the
claims in those causes of action. (Trinity Risk Management, LLC v.
Simplified Labor Staffing Solutions, Inc. (2021) 59 Cal.App.5th 995, 1008
(Trinity Risk Management) [“ ‘ “[w]hen an appellant fails to raise a point, or
asserts it but fails to support it with reasoned argument and citations to
authority, we treat the point as waived” ’ ”]; Delta Stewardship Council Cases
(2020) 48 Cal.App.5th 1014, 1075 (Delta Stewardship) [where the appellant
failed to provide “reasoned argument and citations to authority, we treat the
point as forfeited”]; Cal. Rules of Court, rule 8.204(a)(1)(B) [each point in a
brief must be supported “by argument and, if possible, by citation of
authority”].)

12 Article I, section 19, of the California Constitution does not define
“public use.” It does, however, define “ ‘Public work or improvement’ ” as
“facilities or infrastructure for the delivery of public services such as . . . flood
protection, . . . water-related and wastewater-related facilities or
infrastructure . . . and private uses incidental to, or necessary for, the public
work or improvement.” (Cal. Const., art. I, § 19, subd. (e), par. 5.)

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Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 558, 566 (Belair).)
Under inverse condemnation law, a public entity is responsible “for any
physical injury to real property proximately caused by a public improvement
as deliberately designed and constructed, whether or not the injury was
foreseeable and in the absence of fault by the public entity.” (Ullery v.
County of Contra Costa (1988) 202 Cal.App.3d 562, 568 (Ullery); accord,
Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 263-264.) To prevail on
inverse condemnation, the property owner must show that “ ‘there was an
invasion or appropriation (a “taking” or “damaging”) by a public entity of
some valuable property right possessed by the owner, directly and specially
affecting the owner to his detriment.’ ” (Ruiz v. County of San Diego (2020)
47 Cal.App.5th 504, 514 (Ruiz).) A claim for inverse condemnation “includes
within its purview actions for damages caused by the diversion of water from
its natural course.” (Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345,
357.)
Because one policy underlying the constitutional provision of inverse
condemnation is to distribute throughout the community the loss inflicted
upon a private party by the making of a public improvement (Belair, supra,
47 Cal.3d at p. 558), the plaintiff in an inverse condemnation action can
succeed only if the plaintiff can establish that the public entity’s conduct was
in the pursuit of a public use (Yox, supra, 182 Cal.App.3d at p. 352). In this
context, “public use” is defined as “ ‘a use which concerns the whole
community or promotes the general interest in its relation to any legitimate
object of government.’ ” (Ibid., quoting Bauer v. County of Ventura (1955) 45
Cal.2d 276, 284, abrogated on another point as stated in Belair, at p. 562;
accord, City of Oakland v. Oakland Raiders (1982) 32 Cal.3d 60, 69 [eminent

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domain13].) Whereas the concept of public use is a broad one that
encompasses changing public needs (City of Los Angeles, supra, 194
Cal.App.4th at p. 221), it does not extend to private projects (Cantu v. Pacific
Gas & Electric Co. (1987) 189 Cal.App.3d 160, 165).
For purposes of inverse condemnation, mere public use of a private
structure, even for an extended period, does not result in a public
improvement. (Ruiz, supra, 47 Cal.App.5th at p. 518.) An essential element
for a claim of inverse condemnation arising out of damage from a public
improvement is a showing that the public entity built, accepted, approved, or
maintained the improvement that caused the damage to the private property
owner. (See id. at p. 517.) Thus, a public entity is potentially liable for
inverse condemnation only when the improvement is: (1) developed by the
public entity; (2) dedicated to the public entity by an offer of dedication and
an acceptance of the offer; or (3) accepted by implication after being treated
by the public entity as a public work. (Ibid.; Ullery, supra, 202 Cal.App.3d at
pp. 568-569; Yox, supra, 182 Cal.App.3d at pp. 352-354.)

13 In an eminent domain proceeding, the public entity initiates an action
to acquire the defendant’s property upon the payment of just compensation.
(City of Los Angeles v. Superior Court (2011) 194 Cal.App.4th 210, 220.) By
contrast, an action for inverse condemnation is initiated by the property
owner for the recovery of damage for the improper “taking” of the owner’s
property by some action of the public entity or by some cause for which the
entity is responsible. (Ibid.) In either case, the property owner is entitled to
recover just compensation measured by the fair market value of the property
taken. (Property Reserve, Inc. v. Superior Court (2016) 1 Cal.5th 151, 203-
204.)

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 Plaintiffs do not suggest either that the brow ditch was built by a

public entity or that it was dedicated to and accepted by the City.14
Consistently, the City’s expert testified that it was his “professional opinion
that the brow ditch only benefits private property and does not carry public
water.” (Italics added.)
Nonetheless, Plaintiffs argue that there are triable issues of material
fact as to: whether the brow ditch served a public use or purpose, thereby
creating a public improvement; and whether the City explicitly or implicitly

accepted or approved the brow ditch.15 As we explain, Plaintiffs did not meet
their burden of establishing reversible error as to either issue.

14 In their appellate briefing, Plaintiffs acknowledge that “the City was
not responsible for constructing” the brow ditch. In addition, Plaintiffs’
expert testified that, when the brow ditch was originally constructed, a
private party (the developer of College Valley) built it to collect water from a
private property (El Cerrito Heights) and direct it west, eventually to the
City’s public system. Finally, Plaintiffs agree that, with regard to the brow
ditch, there is no evidence of an attempted dedication to or an acceptance by
the City.

15 Plaintiffs suggest that, by presenting expert testimony rather than
“records showing whether or not [the City] expressly approved or accepted
the brow ditch[,] . . . the City’s expert opinion that there was no approval or
acceptance of the brow ditch should be distrusted.” (Citing Evid. Code, § 412
[“If weaker and less satisfactory evidence is offered when it was within the
power of the party to produce stronger and more satisfactory evidence, the
evidence offered should be viewed with distrust.”].) We disagree. “ ‘[Evidence
Code s]ection 412 only applies when it can be shown that a party is in fact in
possession of or has access to better and stronger evidence than was
presented.’ ” (Orange County Water Dist. v. Alcoa Global Fasteners, Inc.
(2017) 12 Cal.App.5th 252, 362.) Plaintiffs have not attempted to show that
the “records” Plaintiffs describe exist, and Evidence Code section 412 “does
not apply to evidence that does not exist.” (Ibid.)

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 1. Public Use or Benefit
Plaintiffs argue that, even though the City may not have developed or
built the brow ditch, because it “served a public purpose by protecting a City
sewer line or accepting runoff from City streets or a City easement,” the City
“creat[ed] a public improvement.” (Italics added.) We proceed with the
understanding that, for purposes of this argument, Plaintiffs equate “public
purpose” with “public use” or “public benefit.”
a. City Sewer Line
The only City facility near the brow ditch is the City’s sewer main,
which is underground. Plaintiffs argue that there is a triable issue of
material fact whether the brow ditch served a public purpose by protecting
the sewer main. We disagree.
In support of the City’s motion for summary judgment, the City’s expert
testified in part as follows with regard to whether the brow ditch drains
water from public property:
“The concrete brow ditch is not an integral part of the
City’s storm drain system. The concrete brow ditch
accepts only runoff and surface water landing on the
hillside during rain events or from the private properties
[in El Cerrito Heights] to the south and uphill from
Plaintiffs’ properties. No City drainage facility is located
upstream of the brow ditch. [¶] . . . [¶]
“The concrete brow ditch does not protect the City’s sewer
main. The sewer main is underground. A brow ditch
carries runoff and surface water, which would not affect an
underground structure. The brow ditch would not offer any
benefit to the City’s sewer main.” (Italics added.)
In our de novo review, we conclude that, by the foregoing evidence, the City
met its initial burden for summary judgment purposes.

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 At the deposition of Plaintiffs’ expert, the expert testified that he
reviewed the declaration of the City’s expert, that he formed opinions
regarding the declaration testimony, and that his opinions included:
• The above-quoted testimony from the City’s expert “[wa]s
accurate”; and
• Plaintiffs’ expert had no disagreement “with anything that’s in
[the City’s expert’s] declaration” testimony. (Italics added.)
Elsewhere in his deposition, the expert described as follows how “an above-
ground water conveyance system” like the brow ditch could “protect an
underground pipe” like the sewer main:
“Well, the underground pipe is on a steep slope going down.
If water is allowed to drain over that area, even though the
pipe is below ground, it would scour the trench that was
made for the [sewer] pipe, as opposed to the natural
grounds that are on either side of it. And so it could
potentially erode down to the pipeline.” (Italics added.)
Finally, with regard to the purpose of the brow ditch, in opposition to
the City’s summary judgment motion, Plaintiffs’ expert testified:
“One of the purposes for the brow ditch appears to be the
protection of the sewer main line that exists between lots
17 and 18 of Map No. 5280 [College Valley] and is part of
the sewer line that appears between lots 12 and 13 on Map
No. 2818 [El Cerrito Heights]. This sewer line was
constructed as part of the El Cerrito Heights . . . project as
depicted on Map 2818.” (Italics added.)
On appeal, Plaintiffs rely on the foregoing declaration testimony from
their expert to establish a triable issue of fact. In our de novo review, as we
explain, we conclude that, by this evidence, Plaintiffs did not meet their
responsive burden to establish an issue of fact—on at least three bases.
First, public use of private property alone is insufficient to constitute
implied acceptance of an improvement. (See Ruiz, supra, 47 Cal.App.5th at
pp. 515-518 [collecting cases].) There must also be a sufficient showing of

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official acts of dominion and control. (Id. at p. 518; Locklin v. City of
Lafayette (1994) 7 Cal.4th 327, 370 (Locklin); Ullery, supra, 202 Cal.App.3d
at p. 570 [“no public use” based on “the absence of dominion and control
exhibited by the public entities”].) There has been no such showing here.
(See pt. III.B.2., post.)
Second, we do not consider the following testimony from Plaintiffs’
expert in opposition to the City’s summary judgment: “One of the purposes
for the brow ditch appears to be the protection of the sewer main line . . . .”
That is because a party may not defeat summary judgment by means of
declaration testimony which contradicts a witness’s prior deposition
testimony. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-
22.) In application, this ruling by our Supreme Court allows the court to
disregard a witness’s summary judgment declaration testimony where it and
the witness’s prior deposition testimony are “contradictory and mutually
exclusive.” (Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853,
863.) Here, at his deposition, Plaintiffs’ expert testified: (1) He had read and
considered both of the declarations from the City’s experts in support of the
City’s summary judgment motion; (2) certain specific testimony in those
declarations was “accurate”; and (3) he (Plaintiffs’ expert) did not “disagree
with anything that’s in [either of the City’s experts’] declaration[s].”
Plaintiffs’ expert’s lack of disagreement included the following testimony
from the City’s expert’s summary judgment declaration: “The concrete brow
ditch does not protect the City’s sewer main . . . [and] would not offer any
benefit to the City’s sewer main.” Very simply, Plaintiffs’ expert’s declaration
testimony that an apparent purpose of the brow ditch was the protection of
the sewer main line contradicts and is mutually exclusive of Plaintiffs’
expert’s deposition testimony regarding the accuracy of, and his lack of

17
disagreement with, the statements that the brow ditch neither provides
protection for or any benefit to the City’s sewer main.
Third, even if we were to consider Plaintiffs’ expert’s testimony that
one of the purposes of the brow ditch “appears to be the protection of the
sewer main line” (italics added)—not that the brow ditch did protect the
sewer pipe—the result would be no different. That is because, as the City
contends, this evidence is “pure speculation” and “phrased in possibility, not
fact.” A “ ‘mere possibility is nothing more than speculation’ ”; and
“ ‘[s]peculation is not substantial evidence.’ ” (People v. Wallace (2017) 15
Cal.App.5th 82, 93 (Wallace); see Sargon Enterprises, Inc. v. University of
Southern California (2012) 55 Cal.4th 747, 769 (Sargon) [“Expert testimony
must not be speculative”]; Cal. Law Revision Com. com., 29B pt. 3A West’s
Ann. Evid. Code (2009 ed.) foll. § 801, p. 25 [“speculative matters are not a
proper basis for an expert’s opinion”].) Based on these standards, the above-
quoted testimony on which Plaintiffs rely is not sufficiently substantial
evidence to establish a triable issue of material fact as to whether the brow

ditch served a public purpose by protecting the City’s sewer main.16
Accordingly, Plaintiffs did not meet their responsive burden of
presenting evidence that establishes a triable issue of material fact as to
whether the brow ditch served a public purpose by protecting the sewer main.

16 We do not reach this conclusion lightly. We appreciate that “ ‘a
reasoned explanation required in an expert declaration filed in opposition to
a summary judgment motion need not be as detailed or extensive as that
required in expert testimony presented in support of a summary judgment
motion or at trial.’ ” (Michaels, supra, 62 Cal.App.5th at p. 524.) However,
here, the speculation contained in the opinion of Plaintiffs’ expert is not
evidence. (Wallace, supra, 15 Cal.App.5th at p. 93 [“ ‘ “ ‘ “substantial
evidence” requires evidence and not mere speculation’ ” ’ ”].)

18
 b. Runoff from City Streets or a City Easement
Plaintiffs next argue that there is a triable issue of material fact as to
whether the brow ditch served a public purpose by absorbing runoff from two
different locations in El Cerrito Heights: Redland Place (the cul-de-sac to the
south and east of Plaintiffs’ Properties, which contains lots 7-16 of El Cerrito
Heights); or the four-foot undefined easement to the south of Plaintiffs’
Properties (which encircles all of El Cerrito Heights at the edge of its border).
We disagree.
In support of the City’s motion for summary judgment, the City’s expert
testified that the brow ditch does not drain water from public areas:
“The concrete brow ditch accepts only runoff and surface
water landing on the hillside during rain events or from the
private properties to the south and uphill from Plaintiffs’
properties. No City drainage facility is located upstream of
the brow ditch.”17 (Italics added.)
In our de novo review, we conclude that, by the foregoing evidence, the City
met its initial burden for summary judgment purposes.
On appeal, Plaintiffs argue that the City’s expert’s testimony “does not
negate the possibility of overflow from the storm water drainage system

finding its way into the brow ditch.”18 In support of their position, Plaintiffs
rely on the following explanation from their expert to the effect there is a
“potential” that water from Redland Place (a public street above and to the

17 Once again, Plaintiffs’ expert did not disagree with this statement,
expressly testifying that the City’s expert was “accurate in his descriptions.”

18 In the same sentence, Plaintiffs argue that the City’s expert’s testimony
“apparently refers only to a formal connection to the City’s storm water
drainage system.” However, there is nothing in the expert’s declaration that
limits his statement to “a formal connection” to the drainage system, and
Plaintiffs do not provide a record reference for their assertion.

19
south of the brow ditch) ran down the private property lots to the north of
Redland Place and into the brow ditch (italics added):
“These lots [in El Cerrito Heights] drain to the north
[downhill toward College Valley]. And it could be that
water goes down their driveways or down their side yards
that comes off the street, and it doesn’t make its way to the
storm drain.” (Italics added.)
Again, however, Plaintiffs’ expert’s testimony is speculative. Not only did the
expert acknowledge that there was merely the potential for water from
Redland Place to run through the private property lots and into the brow
ditch, in response to a direct question at his deposition, he stated that,
despite the opinion quoted above regarding potential runoff from Redland
Place, he “ha[s] not observed any of that.”
Since “speculative matters are not a proper basis for an expert’s
opinion” (Cal. Law Revision Com. com., 29B pt. 3A West’s Ann. Evid. Code
(2009 ed.) foll. § 801, p. 25) and “[e]xpert testimony must not be speculative”
(Sargon, supra, 55 Cal.4th at p. 769), in our de novo review we do not
consider the evidence on which Plaintiffs rely regarding runoff from Redland
Place in El Cerrito Heights.
Plaintiffs criticize the City’s presentation on the basis that the City’s
expert “did not comment on Plaintiffs’ contention that water which fell on the
City’s four-foot easement, which was directly above the brow ditch, would be
entering the city storm water system via the brow ditch.” To the extent the
foregoing criticism presents an issue on appeal, Plaintiffs have forfeited
review of it. That is because appellate parties are required to “support each
point by argument and, if possible, by citation of authority” (Cal. Rules of
Court, rule 8.204(a)(1)(B)); and the failure to comply with this requirement
results in a forfeiture of appellate review of the issue (Trinity Risk

20
Management, supra, 59 Cal.App.5th at p. 1008; Delta Stewardship, supra, 48
Cal.App.5th at p. 1075).
For the foregoing reasons, Plaintiffs did not meet their responsive
burden of presenting evidence that establishes a triable issue of material fact
as to whether the brow ditch served a public purpose.
2. Approval or Acceptance of the Brow Ditch
We now consider whether, by its actions, the City expressly or
impliedly accepted or approved the brow ditch as a public improvement.
The City presented evidence and legal authorities in support of its
position that there was not sufficient evidence of any “ ‘official acts of
dominion and control’ ” over the brow ditch to transform the private property
to a public improvement. On appeal, Plaintiffs disagree, arguing that, either
explicitly or implicitly, the City accepted or approved the brow ditch as a
public improvement when, as described by Plaintiffs, (1) the City repaired the
brow ditch in 1996, and/or (2) the City provided maintenance for the brow

ditch in the 1980’s.19
We begin with the understanding that a public entity is not liable for
inverse condemnation damages when the public improvement at issue is
constructed entirely by private parties and is not dedicated or accepted for
dedication by the public entity. (DiMartino v. City of Orinda (2000) 80
Cal.App.4th 329, 336-337.) An essential element for a claim of inverse
condemnation arising out of damage from a public improvement is a showing

19 Plaintiffs do not tell us whether, by their disagreement, they contend
the City did not meet its initial burden or they adequately met their
responsive burden. They argue only that, because each of those two events
raise triable issues of fact, the trial court erred and the judgment should be
reversed.

21
that the public entity built, accepted, approved, or maintained the
improvement that caused the damage to the plaintiff’s property. (Ruiz,
supra, 47 Cal.App.5th at pp. 516-519 [collecting cases].)
Ruiz involved an inverse condemnation claim by homeowners who
argued that their property was damaged by the discharge of water that was
collected as part of the public entity’s drainage system and delivered by the
public drainage system through a privately-owned drainage pipe which
failed, causing the damage. (Ruiz, supra, 47 Cal.App.5th at pp. 509-511,
513.) The property owners contended that the pipe had become “ ‘a public
work as part of an integrated [county] system.’ ” (Id. at p. 513.) We
disagreed, ruling in relevant part that, regardless how many years the public
entity had been running its drainage through the privately-owned pipe, there
was no implied acceptance of the private pipe into the public drainage
system, because there was no evidence that the public entity did anything to
“demonstrat[e] dominion or control of the [private] pipe.” (Id. at p. 518.)
Absent a showing of the public entity’s planning, construction, maintenance,
inspection, or repair of the private pipe, the public entity’s “use” of the pipe
did not allow for a finding of implied acceptance by the public entity. (Ibid.)
Plaintiffs rely on Tischauser v. City of Newport Beach (1964) 225
Cal.App.2d 138 (Tischauser). In Tischauser, the issue was whether, for
purposes of impliedly accepting the dedication of a street from the developer,
the public entity’s actions demonstrated sufficient dominion and control over
the property at issue. (Id. at p. 145.) There, the public entity: adopted
multiple resolutions and ordinances regarding the street and related area;
changed the name of the street; issued permits allowing the construction of
piers and concrete bulkheads on the street; maintained trash containers
along the street; established a lifeguard station near the disputed area; and

22
both built a sidewalk and installed street lights along a portion of the street.
(Id. at pp. 141-142.) Given these undisputed facts, we had little difficulty
concluding, as a matter of law, that the public entity had demonstrated
sufficiently “official act[s] of dominion over the property” to support an
implied acceptance of the dedication. (Id. at p. 145.)
In response, the City relies principally on Locklin, supra, 7 Cal.4th 327,
which, in part, involved a claim of inverse condemnation by the downstream
property owners along a privately-owned creek, after upstream development
by the public entity (e.g., paved streets and other public areas) increased the
volume and velocity of water flowing into the creek. (Id. at pp. 338-339.) As
relevant here, the property owners argued that the public entity had
expressly or impliedly accepted the creek as a public improvement based on
“evidence that on occasion [the public entity] . . . remov[ed] fallen trees from
the creekbed.” (Id. at p. 370.) As a matter of law, our Supreme Court
concluded that such evidence did not establish official acts of sufficient
dominion or control over the private creek to transform it into a public work
or improvement. (Ibid.) In particular, the court based its ruling on evidence
that the public entity provided the maintenance only after receiving the
property owners’ permission. (Ibid.)
We now apply the concept of “official acts of dominion and control” to
the two incidents on which Plaintiffs rely. As we explain, neither raises a
triable issue of material fact as to whether the City accepted or approved the
privately-owned brow ditch for purposes of transforming it into a public
improvement.
a. The City’s 1996 Repair of the Brow Ditch
Plaintiffs suggest that, when the City contracted to repair the section of
the brow ditch in the Coffman Property that was damaged in 1996, the City

23
exerted official dominion and control sufficient to establish a triable issue of
material fact as to whether the City accepted or approved the brow ditch as a
public improvement. In 1996, after the City’s public sewer main failed,
causing damage to the brow ditch, the City hired a contractor to repair the
brow ditch it had damaged. Even though the contractor, based on the City’s
design and direction, replaced a straight section of the damaged brow ditch
with a curved section, as we explain, the 1996 repairs do not establish
dominion and control for purposes of an implied acceptance or approval of the
brow ditch as a public improvement.
At the time of this repair to the brow ditch, as expressly acknowledged
by the owners of the Coffman Property (plaintiff Coffman and her husband),
the City was acting in response to the need for “emergency repairs or services
to the [brow ditch]” which was caused by a “breakage” in the City’s sewer
main. (Capitalization omitted.) Before commencing any work on the brow
ditch, the City obtained the written authorization from the owners of the
Coffman Property to proceed with the following “services”: (1) “Emergency
clean[-]up of damage from sewer main breakage”; (2) “Repair of drainage
swale [i.e., the brow ditch] per drawings prepared by Group Delta
Consultants dated July 18, 1996”; and (3) “Restoration of site to pre[-]loss
condition due to damage from [sewer] main break and swale repairs.” (Some
capitalization omitted.) The authorization expressly disclosed that the
approved “services” would be provided by the City, at its expense, to “property
. . . owned or occupied” by Coffman and her husband and were “necessary to
remedy the emergency situation” caused by the failure of the City’s sewer
main. (Italics added.)
Thus, this case is vastly different from Tischauser, supra, 225
Cal.App.2d 138, on which Plaintiffs rely. In Tischauser, the defendant city

24
had taken a number of affirmative actions which evidenced dominion and
control of the street in Newport Beach over a period of time during planned
non-emergency situations. (Id. at pp. 141-142.)
This case is also distinguishable from Marin v. City of San Rafael
(1980) 111 Cal.App.3d 591, disapproved on other grounds in Bunch v.
Coachella Valley Water Dist. (1997) 15 Cal.4th 432, on which Plaintiffs also
rely. In Marin, the plaintiff homeowners sued a public entity for inverse
condemnation after the failure of an underground storm drain pipe, which
the prior owners had installed in a natural watercourse under the home. (Id.
at pp. 593-594.) In addition to directing and supervising all aspects of the
installation of the privately-owned pipe, the public entity knowingly used the
pipe for years as part of the public storm drainage system. (Id. at p. 596.) By
contrast, here, the City performed one repair of damage it caused to the
private property—property that had nothing to do with the provision of
public services—after requesting and receiving the express approval of the

owners of the private property.20
Like the occasional maintenance of the creekbed in Locklin—i.e., with
the permission of the property owners—the one-time emergency repair of the
brow ditch with the permission of the property owners here does not support
an inference that the City was exercising dominion or control of the brow
ditch. (See Locklin, supra, 7 Cal.4th at p. 370.)

20 To the extent Plaintiffs contend that the emergency services performed
at the direction of the City in 1996 were below the standard of care (or
otherwise support a claim against the City or its contractor based on the
design or installation of the repairs), we express no opinion. All that is before
us is Plaintiffs’ claim for inverse condemnation.

25
 b. The City’s Maintenance of the Brow Ditch in the 1980’s
Plaintiffs next suggest that the following evidence establishes a triable
issue of fact as to whether the City implicitly accepted or approved the brow
ditch: Once a year, on four or five occasions from 1981 through 1987, two to
three City workers cleaned out surface debris in that part of the brow ditch
that traverses the few lots on the south side of Maisel Way.
In relying on this evidence, however, Plaintiffs fail to explain how these
occasional cleanings can be considered, as required by California law, official
acts of dominion and control. (Ruiz, supra, 47 Cal.App.5th at p. 517; Ullery,
supra, 202 Cal.App.3d at p. 568; Yox, supra, 182 Cal.App.3d at p. 354;
Tischauser, supra, 225 Cal.App.2d at p. 145.) From the evidence presented,
we know only that, in 2019, one of Plaintiffs’ neighbors remembered that,
during the 1981-1987 time period, he saw two or three “City workers”

walking through the brow ditch, cleaning out surface debris.21 As a matter
of law, such evidence does not establish the requisite dominion and control
sufficient to raise an inference of an implied acceptance of the brow ditch.
(Locklin, supra, 7 Cal.4th at p. 370 [with regard to the drainage easement at
issue, “[t]he evidence that on occasion [the public entity] assisted residents by
removing fallen trees from the creekbed, on request of the owners and with
permission to cross their property in doing so, would not support an inference
that [the public entity] was exercising control over the watercourse”].)
Even if we were to assume without deciding that these irregular visits
established dominion and control, Plaintiffs have presented no evidence (or
inferences from evidence) that these visits were official acts of the City, as

21 This is despite the fact that there is no legal access for City workers to
reach the brow ditch.

26
required to support a finding of implied approval or acceptance of the brow
ditch as a public improvement. Plaintiffs present no authority, and our
independent research has disclosed none, that supports Plaintiffs’ proposition
that the cleaning of private property by a City employee implies that the City
authorized a transformation of private property to a public improvement.
Plaintiffs cite to Union Transportation Co. v. Sacramento County (1954)
42 Cal.2d 235 for their statement that “simply dispatching equipment for the
repairs may be enough to demonstrate acceptance and control.” In Union
Transportation Co., the Supreme Court held that the affirmative action by a
county supervisor of roads in dispatching road equipment with instructions
that the operator of the equipment repair the private road (that contained a
bridge which later collapsed) supported an inference that the county had
impliedly accepted a dedication of the road for purposes of determining
whether the county had exercised dominion and control over the road. (Id. at
p. 244.) In relying on Union Transportation Co., Plaintiffs ignore the
Supreme Court’s reliance on the requirement “that there be some official
action consistent with an acceptance of” the private property in order to
support an inference the public entity “impliedly had accepted” the property.
(Ibid., italics added.) Even though “no formal act of acceptance is necessary”
for a public entity to assume control over the private property, there must be
a showing of “action of the responsible public officials showing an assumption
of control[.]” (Ibid., italics added.) Whereas a county supervisor of roads
directed the dispatch of equipment for the repairs in Union Transportation
Co. (ibid.), here Plaintiffs have not attempted to make this type of required
showing with regard to the four or five surface cleanings of the brow ditch
over a seven year period more than 30 years ago by two to three City
employees.

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 IV. DISPOSITION
The judgment is affirmed. The City is entitled to its costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(2).)

IRION, J.

WE CONCUR:

BENKE, Acting P. J.

GUERRERO, J.

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