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December 9, 2015

WSHB Prevails After Four Week Jury Trial on Storm Water Nuisance Claims Along Colorado River

Almost 2 1/2 years of litigation and more than four weeks of trial culminated in an unquestionable victory by Wood Smith Henning & Berman LLP in a complicated matter addressing riparian rights and liabilities along the Colorado River.   In Bruncati v. Andrews, et al., WSHB attorneys Graham B. Miller and Michael J. Montgomery represented defendants Andrews Properties LLC, River Land LLC, and Billy Wayne Andrews, Jr. and obtained a verdict for less than 3% of the amount originally sought by plaintiffs, exposing them to a cost award that should mean a net judgment in favor of defendants.  The plaintiffs, Robert and Maureen Bruncati, were represented by Craig Collins, Esq. of the firm Blum Collins, LLP.

Plaintiffs own five different pieces of real property in northern Needles, California, along the Colorado River.  There is one parcel made up of three contiguous lots containing two custom riverfront vacation homes, and a separate parcel made up of two contiguous lots 300 yards to the north, with a private beach, boat dock, and launch ramp.  The defendants, through Mr. Andrews individually and his two family-managed LLCs, own multiple parcels in the area, including approximately 150 acres in the watershed that drains storm water to the river adjacent to plaintiffs’ vacation homes.  The majority of defendants’ properties at issue are raw, undeveloped desert land, although portions had been smoothed and used by neighbors for dumping dirt and debris piles.    The watershed in total is approximately 1,000 acres, the majority of which is owned by the federal government.  Although the desert climate leaves it dry the majority of the time, storm water falling on the watershed during rainstorms is naturally funneled toward and flows across defendants’ properties before entering a channel next to plaintiffs’ properties and ultimately draining to the river.  The channel was created by development of the riverfront portion of the watershed by third parties and originally included a debris basin to capture sediment, although said basin was not maintained and was breached in 2004.  Since that time, storm water carrying sediment and other debris has created an expanding alluvial fan in the river at the mouth of this watershed, which currently extends in front of plaintiffs’ two vacation homes and makes water depths too low to use the boat docks previously installed there.

The parties disputed whether the case involved surface water or watercourse drainage across and affecting the parties’ properties, with each creating different standards of care.  Due to the technical nature of the necessary analysis, plaintiffs designated five expert witnesses and defendants designated four of their own, although each side only called two at trial.  The experts on each side provided days of testimony detailing calculations of the watershed area, flow rates within key portions of the watershed, volume of the alluvial fan, comparisons with similar watersheds and fans, and estimations of fault and damages.

Plaintiffs asserted that defendants’ conduct in allowing the disturbance of land, dumping of dirt piles, and refusal to construct a larger debris basin on its properties created the fan, with causes of action for negligence, trespass, and nuisance.  Despite evidence the federal Bureau of Reclamation intends to remove the fan at taxpayer expense, Plaintiffs sought $3.1 million for removal as the cost to repair their damages.  They also claimed damages for their loss of use and enjoyment of their vacation home properties, as well as emotional distress from their worry over liability for the fan and their children’s and grandchildren’s limited use of the family vacation properties due to the fan.  Defendants countered that the wash fan was a result of the channel, which they had no part in creating, and that any damages were minimal, since Plaintiffs had uninterrupted river access at their nearby property to the north.   Although liability was never conceded, WSHB counseled the clients regarding the risks in the case, and the clients authorized a joint statutory offer to compromise under California Code of Civil Procedure (“CCP”) section 998 for $350,000 prior to trial.  Plaintiffs countered with their own statutory offer for $699,000.  However, at the commencement of trial, they backtracked and advised the only acceptable settlement option involved defendants purchasing the properties containing the vacation homes for $2.5 million.

Prior to the start of trial, Plaintiffs sought to introduce the $3.1 million cost of repair, in addition to loss of use damages of $649,000 and emotional distress damages.  WSHB was able to significantly reduce many of the asserted claims through aggressive pre-trial motions in limine, including elimination of evidence relating to the cost to remove the wash fan and previously undisclosed evidence relating to the cost of the larger debris basin Plaintiffs wanted installed on defendants’ properties.  WSHB also eliminated the trespass claims by moving for nonsuit at the close of Plaintiffs’ case.  During closing arguments, Plaintiffs were limited to asking the jury for $495,000 in loss of use, although they argued for significant emotional distress damages and urged 95% liability to the defendants.  The San Bernardino County jury found plaintiffs suffered damages totaling $287,500 for loss of use and emotional distress damages, but assigned no blame to Mr. Andrews or River Land LLC, and only 25% to Andrews Properties, LLC.  After offset for an earlier confidential settlement paid by a codefendant property owner in the area, the verdict against Andrews Properties LLC is only $100,135.87.

Defendants, and their insurance carrier, are understandably excited and relieved by the result.  Moreover, the verdict is far less than the pre-trial statutory offer to compromise on behalf of defendants.  Under CCP section 998, WSHB will seek recovery of all expert costs incurred in this matter, in addition to regularly recoverable costs.  While the court has discretion as to how much it awards in expert costs, the costs are more than twice the verdict.  Therefore, WSHB anticipates that even a reduced award will be in excess of the verdict in favor of Plaintiffs, which would require judgment in favor of Defendants for the balance.


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