“[that] damage caused by the negligent 10 conduct of public employees or a public entity does not fall 11 within the aegis of [the takings clause] -- has been followed 12 repeatedly and uniformly [for] more than 60 years”
How later courts described this case
- “[that] damage caused by the negligent 10 conduct of public employees or a public entity does not fall 11 within the aegis of [the takings clause] -- has been followed 12 repeatedly and uniformly [for] more than 60 years”
- “The plaintiff must plead that the [] government has 7 performed some affirmative act that caused the divestiture of her 8 property interest.”
- burden lies with 16 party asserting subject matter jurisdiction
- assuming “that 25 the California Supreme Court was correct in its determination that California takings law is coextensive with federal law”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10 ----oo0oo----
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12 VICTOR SANCHEZ and ANGELINA No. 1:23-cv-01698 WBS SAB
SANCHEZ, individually and as
13 Husband and Wife, UBALDO
SANCHEZ, an individual and doing
14 business as Strathmore Ag ORDER RE: MOTIONS TO DISMISS
Supply,
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Plaintiffs,
16
v.
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FRIANT WATER AUTHORITY, a public
18 agency of the State of
California, UNITED STATES BUREAU
19 OF RECLAMATION, an agency of the
United States of America, and
20 TULARE COUNTY, a county of
California,
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Defendants.
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23
----oo0oo----
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Plaintiffs Victor Sanchez, Angelina Sanchez, and Ubaldo
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Sanchez bring this action asserting trespass to land (Claim 1),
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injunctive relief (Claim 2), negligence (Claim 4), and
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unreasonable diversion of surface water (Claim 5) against
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1 defendants Friant Water Authority (“Friant”), United States
2 Bureau of Reclamation (the “Bureau”), and Tulare County. (Compl.
3 (Docket No. 1).) Plaintiffs also bring an inverse condemnation
4 claim (Claim 3) against Friant and the County. (Id.) Friant and
5 the Bureau now move to dismiss the complaint under Rule 12(b)(1)
6 and 12(b)(6). (Friant Mot. (Docket No. 12); U.S. Mot. (Docket
7 No. 20-1).)
8 As the parties are familiar with the claims and
9 allegations in the complaint, the court will not recite them in
10 detail here.
11 I. Federal Tort Claims Act Jurisdiction (28 U.S.C. §
12 1346(b)(1)) (Claims 1, 2, 4, 5 -- Against the United States)
13 Plaintiffs argue that the court has jurisdiction under
14 the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b)(1),
15 over the claims asserted against the Bureau because the Bureau is
16 a federal agency of the United States Government.1 (See Compl ¶
17 9.) Both Friant and the United States contest this
18 jurisdictional basis and argue that the United States is not a
19 proper party to this action.
20 All of plaintiffs’ claims relate centrally to a failure
21 to timely and adequately pump stormwater out of the Reservoir
22 Property.2 (See Compl. ¶¶ 14, 31, 38, 55-56, 64-65.)
23
1 The only proper defendant in an FTCA suit is the United
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States, and “the federal agency cannot be sued in its own name.”
FDIC v. Meyer, 510 U.S. 471, 476 (1994) (internal quotation marks
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omitted). The court accordingly construes allegations directed
26 against the Bureau as directed against the United States.
27 2 Plaintiffs’ negligence claim additionally alleges a
failure to properly maintain the pumps. (Compl. ¶ 55.)
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1 Additionally, plaintiffs clearly allege that the County owns the
2 Reservoir Property and the pumps affixed to it (id. ¶ 47), and
3 that Friant operates the Friant-Kern Canal and decides when
4 surface water may be pumped into it (id. ¶ 48). Further,
5 plaintiffs allege that a County employee promised but failed to
6 operate temporary pumps throughout the night, and that this
7 failure proximately caused the initial flooding of his property.
8 (Id. ¶¶ 15-17.)
9 In fact, the only allegation that plaintiffs direct
10 squarely at the United States concerns its technical ownership of
11 the Friant-Kern Canal. (Id. ¶ 4.) However, the operation and
12 maintenance of the Friant-Kern Canal and “related in-line control
13 facilities; wasteways, laterals, holding reservoirs, turnouts and
14 measuring devices, associated water level control devices and
15 water level recording instruments; appurtenant equipment,
16 structures and maintenance buildings” -- altogether the “Project
17 Works” -- is subject to a Cooperative Agreement between Friant
18 and the United States, which places under Friant’s sole purview
19 the “complete operation and maintenance” of the Project Works, as
20 well as “the performance, funding, and financing of emergency or
21 unusual operation and maintenance.” (Jackson Decl. (Docket No.
22 20-2) Ex. A (“Cooperative Agreement”) pp. 3, 5, 8.)
23 Accordingly, the United States asserts sovereign
24 immunity under the independent contractor exception to the FTCA’s
25 limited waiver of immunity.3 (U.S. Mot. at 9-12.) “[T]he
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3 The court ponders why the doctrine is styled as an
27 “exception,” as opposed to an exclusion, since the FTCA expressly
provides that the term “‘Federal agency’ . . . does not include
28 any contractor with the United States . . . .” 28 U.S.C. § 2671.
1 independent contractor exception [protects] the United States
2 from vicarious liability for the negligent acts of its
3 independent contractors.” Edison v. United States, 822 F.3d 510,
4 518 (9th Cir. 2016) (quoting Yanez v. United States, 63 F.3d 870,
5 872 n.1 (9th Cir. 1995)). “[T]he critical test for
6 distinguishing an agent from a contractor is the existence of
7 federal authority to control and supervise the detailed physical
8 performance and day to day operations of the contractor.” Autery
9 v. United States, 424 F.3d 944, 956 (9th Cir. 2005) (citations
10 omitted).
11 Subject to that critical test, the court concludes that
12 the independent contractor exception applies here.4 The
13 Cooperative Agreement clearly delegates all responsibilities
14 regarding physical performance and day-to-day operations
15 regarding the Project Works to Friant. In addition, no facts
16 show that the relationship between Friant and the United States
17 was in practice anything contrary to what was set forth in the
18 Cooperative Agreement. The Ninth Circuit has also found that the
19 independent contractor exception applies in an analogous
20 situation involving the contractual transfer of care, operation,
21 and maintenance of an irrigation project from the United States
22 to a water utility association. See Borquez v. United States,
23 773 F.2d 1050, 1052-53 (9th Cir. 1985) (“The government, having
24 validly transferred operation, care and maintenance, is also not
25 liable for any acts or omissions of the Association. The
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4 The court therefore need not consider the United
27 States’s argument regarding the discretionary function exception
or its more specific claim-by-claim arguments.
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1 liability of the United States extends only to the negligence of
2 employees.”).5
3 Accordingly, the court will dismiss plaintiffs’ claims
4 as asserted against the United States and decline subject matter
5 jurisdiction based on the FTCA.
6 II. Federal Question Jurisdiction (28 U.S.C. § 1331) (Claim 3 --
7 Against Friant and County)
8 However, the court still retains jurisdiction over this
9 action pursuant to federal question jurisdiction, 28 U.S.C. §
10 1331, because plaintiffs assert an inverse condemnation claim
11 partly under the Fifth Amendment’s takings clause.6 (Compl. ¶¶
12
5 Plaintiffs’ only argument in opposition is that there
13 are insufficient facts to determine which specific pieces of
property and appurtenances fall under the Cooperative Agreement.
14 (Docket No. 23 at 4-6.) First, plaintiffs mistake who has the
burden of proof to show the existence of subject matter
15 jurisdiction. See In re Dynamic Random Access Memory Antitrust
Litigation, 546 F.3d 981, 984 (9th Cir. 2008) (burden lies with
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party asserting subject matter jurisdiction). Second, plaintiffs
themselves clearly allege that the County owns the Reservoir
17
Property and the pumps affixed to it. (Compl. ¶ 47). Even by
18 plaintiffs’ allegations, these are the only pieces of property
and appurtenances genuinely at issue here.
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6 Plaintiffs bring their inverse condemnation claim under
20 both the federal and California constitutions. California courts
generally construe the federal and California takings clauses
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congruently. Small Property Owners of San Francisco v. City and
22 County of San Francisco, 141 Cal.App.4th 1388, 1396 (Cal. App.
1st Dist. 2006) (citing San Remo Hotel L.P. v. City And County of
23 San Francisco, 27 Cal. 4th 643, 661 (2002) (“[W]e appear to have
construed the [federal and state constitutional takings] clauses
24 congruently.”)); see also San Remo Hotel, L.P. v. City & County
of San Francisco, 545 U.S. 323, 337 n.18, (2005) (assuming “that
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the California Supreme Court was correct in its determination
that California takings law is coextensive with federal law”).
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The parties do not contend there is any material difference
27 between federal and California takings jurisprudence. The court
will proceed accordingly.
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1 59-68.)
2 To establish an inverse condemnation claim, a plaintiff
3 must show that the defendant affirmatively or intentionally
4 engaged in an act giving rise to the claim. See Parker v. United
5 States, 93 Fed. Cl. 159, 163, aff’d, 401 F. App’x 531 (Fed. Cir.
6 2010) (“The plaintiff must plead that the [] government has
7 performed some affirmative act that caused the divestiture of her
8 property interest.”); Customer Co. v. City of Sacramento, 10 Cal.
9 4th 368, 381 (1995) (“[that] damage caused by the negligent
10 conduct of public employees or a public entity does not fall
11 within the aegis of [the takings clause] -- has been followed
12 repeatedly and uniformly [for] more than 60 years”); Arreola v.
13 Monterey County, 99 Cal. App. 4th 722, 742 (Cal. App. 6th Dist.
14 2002) (“The fundamental justification for inverse liability is
15 that the government, acting in furtherance of public objectives,
16 is taking a calculated risk that private property may be damaged.
17 That is why simple negligence cannot support the Constitutional
18 claim.”) (citations omitted); Mercury Cas. Co. v. City of
19 Pasadena, 14 Cal. App. 5th 917, 925 (Cal. App. 2d Dist. 2017)
20 (“Inverse condemnation liability does not arise out of general
21 tort liability, such as negligent acts in the day-to-day
22 maintenance or operation of a public improvement”).
23 Here, plaintiffs fail to allege that defendants took
24 any such affirmative action. Even construing plaintiffs’ every
25 allegation as true and granting plaintiffs every reasonable
26 factual inference, the complaint only provides an accounting of
27 defendants’ failures -- failure to run the small pumps throughout
28 the night on January 9 (Compl. ¶ 17), failure to turn on or
1 authorize the use of the large pumps thereafter (id. ¶¶ 15, 17,
2 31), and failure to properly maintain the pumps (id. ¶ 39).7
3 Accordingly, the court will dismiss this claim and
4 extinguish federal question jurisdiction over this action.
5 III. Supplemental Jurisdiction (28 U.S.C. § 1367) (Claims 1, 2,
6 4, 5 -- Against Friant and County)
7 Still, federal courts have “supplemental jurisdiction
8 over all other claims that are so related to claims in the action
9 within such original jurisdiction that they form part of the same
10 case or controversy under Article III of the United States
11 Constitution.” 28 U.S.C. § 1367(a).8 However, a district court
12 “may decline to exercise supplemental jurisdiction . . . [if] the
13 district court has dismissed all claims over which it has
14 original jurisdiction.” Id. at § 1367(c); see also Acri v.
15 Varian Assocs., Inc., 114 F.3d 999, 1001 n.3 (9th Cir. 1997) (en
16 banc) (district courts may decline sua sponte to exercise
17 supplemental jurisdiction).
18 “[I]n the usual case in which all federal-law claims
19 7 Plaintiffs do allege that “[t]he damage caused by [sic]
the Sanchez Property was the result of the inherent risks
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associated with the construction, design and maintenance of the
21 Reservoir Property.” (Compl. ¶ 49.) However, plaintiffs also
allege that, during a thirty-five-year period, their property
22 never flooded to the point of imperiling their personal property,
and that defendants diligently used water pumps to drain the
23 Reservoir Property on the rare occasions that it became flooded.
(Id. ¶¶ 13-14.) This undercuts any argument that defendant’s
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affirmative actions regarding the construction, design, and
maintenance of the Reservoir Property caused the Sanchez Property
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to flood. It also reinforces defendants’ alleged failure to
26 engage the pumps as the causal locus of harm.
27 8 There is no diversity jurisdiction in this case because
the parties are not diverse.
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1 are eliminated before trial, the balance of factors to be
2 considered under the pendent jurisdiction doctrine -- judicial
3 economy, convenience, fairness and comity -- will point toward
4 declining to exercise jurisdiction over the remaining state-law
5 claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7
6 (1988). This case is no exception. The first three factors
7 favor no particular forum. Comity, however, strongly favors the
8 declination of federal supplemental jurisdiction because the
9 remaining defendants are both California entities with a complex
10 legal and regulatory relationship. In addition, plaintiffs’
11 fifth claim for unreasonable diversion of surface water
12 implicates an especially complex body of state law better
13 reserved for the California courts to resolve.
14 D. Leave to Amend
15 Federal Rule of Civil Procedure 15 directs the court to
16 freely grant leave to amend “when justice so requires.” Fed. R.
17 Civ. P. 15(a)(2). “[T]his policy is to be applied with extreme
18 liberality.” Morongo Band of Mission Indians v. Rose, 893 F.2d
19 1074, 1079 (9th Cir. 1990). Accordingly, plaintiffs will be
20 given leave to amend their complaint to properly assert claims
21 against the United States inverse condemnation claims against
22 Friant and the County, if they are able to do so consistent with
23 this Order.
24 IT IS THEREFORE ORDERED that defendants Friant Water
25 Authority and the United States’s motions to dismiss plaintiffs’
26 complaint (Docket Nos. 12, 20) be, and the same hereby are,
27 GRANTED. Plaintiffs’ complaint (Docket No. 1) is DISMISSED.
28 Plaintiffs have twenty (20) days from the issuance of this Order
eee IIE IERIE DE RGD IGGE) III) RENEE EI
1 to file an amended complaint, if they are able to do so
2 consistent with this Order.
3 | Dated: May 29, 2024 he bloom HK Ld. bE
4 WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE
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