1

Filed 8/17/22 Valley Honey v. East Bay Municipal Utility Dist. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

VALLEY HONEY, INC., et al.,

Plaintiffs and Appellants,

v.

EAST BAY MUNICIPAL UTILITY DISTRICT,

Defendant and Respondent.

C093454

(Super. Ct. No. 

STKCVUOT201800000071)

In any negligence suit, a plaintiff must demonstrate “ ‘a legal duty to use due care, 

a breach of such legal duty, and [that] the breach [is] the proximate or legal cause of the 

resulting injury.’ ” (Beacon Residential Community Assn. v. Skidmore, Owings & Merrill 

LLP (2014) 59 Cal.4th 568, 573.) In this case, plaintiffs Valley Honey, Inc. and 

Christobal Espinosa (collectively plaintiffs) sued defendant East Bay Municipal Utility 

District (district) for general negligence after plaintiffs’ property (several beehives) 

located along or on the banks of a river on others’ lands was destroyed when the district

increased water releases from Camanche Dam (the dam). Plaintiffs alleged the district 
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owed them a duty of care to provide prior notification of its decision to increase water 

releases from the dam. The trial court granted summary judgment in favor of the district

on the element of duty and dismissed plaintiffs’ suit. 

The primary question on appeal is whether the district, the operator of the dam,

owed plaintiffs a duty of notification prior to increasing water releases that caused

damage to plaintiffs’ property downstream. We conclude the answer is no. We further

find no merit in plaintiffs’ remaining evidentiary and judicial notice arguments or in their 

contention the trial court erred in refusing to grant a continuance pursuant to Code of 

Civil Procedure section 437c, subdivision (h). We thus affirm the judgment in favor of 

the district.

FACTUAL AND PROCEDURAL BACKGROUND1

In January 2017, plaintiffs stored beehives near or on the banks of the Mokelumne 

River on four private properties downstream from the dam. Plaintiffs did not own the 

properties upon which they stored the beehives, nor did they pay the landowners rent. 

Plaintiffs, however, occasionally gave the landowners honey. Plaintiffs had oral 

agreements with the landowners, which included that the landowners would relay to 

plaintiffs any notice the landowners received regarding flooding or other water releases 

from the dam. Plaintiffs did not purchase insurance for their beehives. 

The district operates the dam, which regulates flows in the lower Mokelumne 

River basin and lower San Joaquin River by controlling releases to reduce flood impacts. 

The district uses three methods to notify the public of water releases: (1) the district 

1 Although plaintiffs disputed some of the facts set forth herein, the trial court 

sustained the district’s objections to the evidence upon which plaintiffs relied (as 

discussed in greater detail and affirmed in part II of the Discussion) and overruled 

plaintiffs’ objections to the district’s evidence. Plaintiffs’ further responses to the 

district’s statement of undisputed material facts failed to raise any material dispute as to 

the facts set forth in this opinion. We thus consider those facts undisputed.
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provides notice on its public website; (2) a horn is sounded at the dam; and (3) when a 

release exceeds 1,000 cubic feet per second (cfs), an automated telephone alert is sent to 

various agencies and individuals who have opted in to receive such notifications.

2

 Public 

notification of a release of more than 1,000 cfs occurs after the district has coordinated

the proposed water release with the United States Army Corps of Engineers, San Joaquin 

County Sheriff’s Office, Woodbridge Irrigation District, and the district’s internal work 

units and dam operators. “Because weather forecasts can fluctuate day to day, [the 

district] confirms the forecast is stable before putting together the release plan and 

notifying the public.” The district does this “to avoid false release notifications and loss 

of credibility with the public.” 

“On January 3, 2017, there was a significant change in the weather forecast for the 

San Joaquin/Mokelumne River area, as the National Weather Forecast called for 

atmospheric river conditions, including a warm rainfall event similar to the Pineapple 

Express storm that caused significant runoff in 1997.” “The forecast projected 12-14 

inches of precipitation within the upcoming two-week period, while the historical average 

14-day forecast was 4 inches of precipitation. Precipitation in the Mokelumne River 

basin ultimately was 360% of the average for the month of January.” 

At 1:19 p.m. on January 4, 2017, the district made the decision to increase the 

water release from the dam. The district increased the release from 1460 cfs to 2,200 cfs 

at 5:00 p.m., and then to 3,000 cfs at 7:00 p.m. On the same day, the timing of which is 

unknown, the district submitted an automated telephone notification to its vendor for 

dissemination to those agencies and individuals who had opted in for such notifications.3 

2 Anyone may opt in for telephone notifications. 

3 Plaintiffs did not include the exhibits attached to Sean Todaro’s declaration in the 

record on appeal. We note, however, plaintiffs stated the notification was made at the 

same time as the first release, i.e., at 5:00 p.m. 
4

The district also at some point posted a notification on its website and sounded the horn 

at the dam. 

On January 5, 2017, the district increased the release to 4,000 cfs at 2:00 p.m. and 

then to 5,000 cfs at 4:00 p.m. At 12:42 p.m. that day, the district either submitted an 

automated telephone notification to its vendor for dissemination, or such telephone 

notifications were made to the agencies and individuals on the opt-in list.

4

 The district 

also at some point posted a notification on its website and sounded the horn at the dam. 

Plaintiffs filed a general negligence action against the district, claiming their

beehives were destroyed following the foregoing water release increases. Plaintiffs 

alleged the district “chose to increase the water releases from the [dam] without any prior 

notification” and “but for the decision to not provide prior notification of an increased 

release, plaintiffs [sic] property and business would not have been harmed as plaintiffs 

would have been able to move the property to a different location.” (Capitalization 

omitted.) It is undisputed plaintiffs were unaware of the district’s automated telephone 

notification system and relied on the oral agreements with the landowners for 

notifications regarding water releases or flooding. 

The district filed a motion for summary judgment or, in the alternative, summary 

adjudication (the motion), arguing, in pertinent part to this appeal, it owed plaintiffs no 

duty of prior notification when it increased the water releases from the dam. Plaintiffs 

opposed the motion. 

The trial court initially issued a tentative ruling denying the motion. In that 

tentative ruling, the trial court principally found a duty because “more notice might have 

made a difference in this case, especially in light of Plaintiff’s [sic] undisputed 

4 The parties dispute whether the telephone calls were made at that time. We need 

not resolve the factual dispute because it is immaterial to the outcome of this appeal.
5

communications with [one of the landowners]” and the district failed to show “that 

imposing a duty of reasonable notice would place an ‘impossible burden’ on” the district. 

After oral argument and reviewing the supplemental briefs filed by the parties, 

however, the trial court was persuaded the district “did not owe a duty to make 

reasonable efforts to give prompt notice of its decision to release water from [the dam] to 

all people who might have any personal property interest downstream.” In the trial 

court’s view, “[i]t was simply not foreseeable that [the plaintiffs] would be harmed in this 

scenario” and “[f]inding of such a duty would open up the proverbial floodgates of 

litigation to a never-ending universe of potential plaintiffs.” The trial court thus granted 

the district’s motion. 

Plaintiffs appeal.

DISCUSSION

Plaintiffs argue: (1) the trial court erred in finding the district owed them no duty 

of care; (2) the trial court “effectively created a non-statutory immunity for dam 

operators” (capitalization omitted); (3) a material issue of fact exists as to whether prior 

notice was provided by the district; (4) the trial court erred in refusing to consider 

plaintiffs’ judicially noticed documents; (5) the trial court erred in refusing to consider 

plaintiffs’ evidence; and (6) the trial court erred in refusing to grant a continuance 

pursuant to Code of Civil Procedure section 437c, subdivision (h). 

We first consider the issue of duty and because we find the district owed plaintiffs 

no duty of prior notification, we do not address plaintiffs’ nonstatutory immunity and 

breach arguments. We next consider and reject plaintiffs’ remaining arguments.
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I

Duty Of Care

A

Summary Judgment Standard Of Review

Summary judgment is properly granted when no triable issue exists as to any 

material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. 

Proc., § 437c, subd. (c).) We review the grant of a motion for summary judgment de 

novo. (Law Offices of Dixon R. Howell v. Valley (2005) 129 Cal.App.4th 1076, 1092.) 

In that vein, we assume the role of the trial court by independently examining the record 

and evaluate the correctness of the trial court’s ruling, not its rationale. (Moore v. 

William Jessup University (2015) 243 Cal.App.4th 427, 433.) In doing so, we scrutinize 

the parties’ trial briefs and evidence to determine the existence of a triable issue of fact. 

(See Martinez v. County of Los Angeles (1996) 47 Cal.App.4th 334, 341.) “There is a 

triable issue of material fact if, and only if, the evidence would allow a reasonable trier of 

fact to find the underlying fact in favor of the party opposing the motion in accordance 

with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 

Cal.4th 826, 850.)

“A defendant . . . has met his or her burden of showing that a cause of action has 

no merit if the party has shown that one or more elements of the cause of action . . . 

cannot be established, or that there is a complete defense to the cause of action. Once the 

defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a 

triable issue of one or more material facts exists as to the cause of action or a defense 

thereto. The plaintiff . . . shall not rely upon the allegations or denials of [his or her] 

pleadings to show that a triable issue of material fact exists but, instead, shall set forth the 

specific facts showing that a triable issue of material fact exists as to the cause of action 

or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) We “view the evidence in 

a light favorable to plaintiff as the losing party [citation], liberally construing [his or] her 
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evidentiary submission while strictly scrutinizing [the defendant’s] own showing, and 

resolving any evidentiary doubts or ambiguities in plaintiff’s favor.” (Saelzler v. 

Advanced Group 400 (2001) 25 Cal.4th 763, 768.)

B

The Standards For Analyzing The Existence Of A Duty

“ ‘ “[D]uty” is a question of whether the defendant is under any obligation for the 

benefit of the particular plaintiff; and in negligence cases, the duty is always the same, to 

conform to the legal standard of reasonable conduct in . . . light of the apparent risk. 

What the defendant must do, or must not do, is a question of the standard of conduct 

required to satisfy the duty.’ ” (Coffee v. McDonnell-Douglas Corp. (1972) 8 Cal.3d 551, 

559, fn. 8.) “Unlike the elements of breach, causation, and injury, all of which are factspecific issues for the trier of fact, the existence and scope of a duty are questions of 

law.” (Staats v. Vintner’s Golf Club, LLC (2018) 25 Cal.App.5th 826, 832.)

“In California, the ‘general rule’ is that people owe a duty of care to avoid causing 

harm to others and that they are thus usually liable for injuries their negligence inflicts. 

[Citation.] Under Civil Code section 1714, subdivision (a), ‘[e]veryone is responsible . . .

for an injury occasioned to another by his or her want of ordinary care or skill in the 

management of his or her property or person, except so far as the latter has, willfully or 

by want of ordinary care, brought the injury upon himself or herself.’ So at least in 

cases involving traditionally compensable forms of injury -- like physical harm to person 

or property -- we presume the defendant owed the plaintiff a duty of care and then ask 

whether the circumstances ‘justify a departure’ from that usual presumption. [Citation.] 

In Rowland v. Christian (1968) 69 Cal.2d 108 . . . (Rowland), [our Supreme Court]

identified several factors that, among others, may bear on that question: (1) ‘the 

foreseeability of harm to the plaintiff,’ (2) ‘the degree of certainty that the plaintiff 

suffered injury,’ (3) ‘the closeness of the connection between the defendant’s conduct 

and the injury suffered,’ (4) ‘the moral blame attached to the defendant’s conduct,’
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(5) ‘the policy of preventing future harm,’ (6) ‘the extent of the burden to the defendant 

and consequences to the community of imposing a duty to exercise care with resulting 

liability for breach,’ and (7) ‘the availability, cost, and prevalence of insurance for 

the risk involved.’ [Citation.] At core, though, the inquiry hinges not on mere rote 

application of these separate so-called Rowland factors, but instead on a comprehensive 

look at the ‘ “ ‘ “the sum total” ’ ” ’ of the policy considerations at play in the context 

before us.” (Southern California Gas Leak Cases (2019) 7 Cal.5th 391, 398-399.)

Our Supreme Court has explained that “[t]he Rowland factors fall into two 

categories. Three factors -- foreseeability, certainty, and the connection between the 

plaintiff and the defendant -- address the foreseeability of the relevant injury, while the 

other four -- moral blame, preventing future harm, burden, and availability of insurance --

take into account public policy concerns that might support excluding certain kinds of 

plaintiffs or injuries from relief.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1145 

(Kesner).)

“Because a judicial decision on the issue of duty entails line drawing based on 

policy considerations, ‘the Rowland factors are evaluated at a relatively broad level of 

factual generality. . . . [¶] In applying the . . . Rowland factors, . . . we have asked not 

whether they support an exception to the general duty of reasonable care on the facts of 

the particular case before us, but whether carving out an entire category of cases from 

that general duty rule is justified by clear considerations of policy. . . . [¶] By making 

exceptions to Civil Code section 1714’s general duty of ordinary care only when 

foreseeability and policy considerations justify a categorical no-duty rule, we preserve the 

crucial distinction between a determination that the defendant owed the plaintiff no duty

of ordinary care, which is for the court to make, and a determination that the defendant 

did not breach the duty of ordinary care, which in a jury trial is for the jury to make.’ ” 

(Kesner, supra, 1 Cal.5th at pp. 1143-1144.)
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C

The Duty Under Consideration

We first clarify the duty under consideration because plaintiffs’ theory has been 

somewhat vacillating and confusing. 

The district asserts plaintiffs admitted the district owed no duty directly to them 

because plaintiffs’ theory was that the district owed a duty of prior notification to the 

landowners, and the landowners in turn owed plaintiffs a duty of relaying such 

information. The trial court rejected this argument, noting plaintiffs denied the request 

for admission that the district owed no duty to plaintiffs. Following the denial, however, 

plaintiffs stated the district “had a DUTY to notify each landowner who [sic] regarding 

the releases of water. The landowners in turn had a duty to notify Plaintiff[s] of the 

releases of water. [The district] breached this duty and caused Plaintiff[s] damages.” 

(Underlining omitted.) While plaintiffs’ explanation following the denial of the request 

for admission appears to support the district’s argument, the trial court analyzed 

plaintiffs’ new theory in opposition to the motion that the district owed a duty of prior 

notification to the public, including plaintiffs. The district has asserted no claim of error 

with associated reasoning or argument in that regard, and we thus analyze the asserted 

duty as framed in plaintiffs’ opposition to the motion and considered and decided by the 

trial court. (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 

153 [we disregard statements or arguments failing to disclose the reasoning by which we 

are asked to reach the conclusions asserted].)

In that regard, plaintiffs asserted the district owed them a duty “to adequately 

provide notice prior to increasing releases” from the dam. In addressing the asserted 

duty, plaintiffs argued the United States Army Corps of Engineers required the district to 

take “ ‘reasonable steps to inform the public of significant changes in flood control 

releases’ ” and the district’s guidelines provided the district “was to make ‘automated 
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telephone notifications at least one day before release changes.’ ”5 Plaintiffs maintained

they had “alleged that [the district] was negligent by ignoring the policies and guidelines 

established by the Army Corp. [sic] of Engineers and [the district] itself which identified 

that prior notice, of at least a day, should be provided to the public.” In plaintiffs’ view, 

“[c]learly, the [district’s] guidelines were established because they [sic] believe (and 

common sense requires) good public policy is to notify the public prior to a release so 

that they have sufficient time to protect themselves and their property. Enforcing this 

policy consideration would cause no additional burden on [the district] because this 

burden was already supposed to be followed and the risk of harm is obvious and certain.” 

Plaintiffs further reasoned the district’s “already established policy of providing prior 

notice, if followed, would prevent future harm. However, [the district’s] decision not to 

follow their own policies should expose [the district] to moral blame. Finally, the 

community as a whole would benefit from [the district] following [its] own guidelines 

and providing prior notice of increased releases because the public would be able to 

better prepare themselves and insulate themselves from the possible negative impact, 

including flooding.” At oral argument, plaintiffs added it was unreasonable to increase 

the release at 5:00 p.m. on January 4, 2017, and “then start[] notifications on [the same 

day].” 

Based on the duty argument raised in plaintiffs’ opposition to the motion and 

considered and decided by the trial court, we consider whether the district owed plaintiffs

a duty of notification before increasing water releases from the dam. (See Martinez v. 

County of Los Angeles, supra, 47 Cal.App.4th at p. 341 [we scrutinize the parties’ briefs 

and evidence to determine if summary judgment was appropriate].)

5 We note the purported district guideline quoted by plaintiffs was contained in an

exhibit attached to the declaration of Dustin J. Dyer that was excluded by the trial court. 

We affirm that ruling in part II of the Discussion post.
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D

The District Did Not Owe Plaintiffs A Duty Of Prior Notification

Plaintiffs assert a triable issue of fact exists as to each Rowland factor and the trial 

court erred in viewing the district’s evidence more favorably than plaintiffs’ evidence. 

Plaintiffs further assert the trial court blurred the analysis as to whether the district owed 

them a duty and whether the district fulfilled its duty to them. In that regard, plaintiffs 

believe the trial court “failed to acknowledge that steps taken in fulfillment of a duty is 

evidence of a duty, not evidence of no duty.” As already explained, we evaluate the 

correctness of the trial court’s ruling, not its rationale.6 (Moore v. William Jessup 

University, supra, 243 Cal.App.4th at p. 433.) We apply the Rowland factors de novo to 

determine whether the trial court erred in finding the district owed plaintiffs no duty of 

care.

Foreseeability of Harm: “ ‘[A]s to foreseeability, . . . the court’s task in 

determining duty “is not to decide whether a particular plaintiff’s injury was reasonably 

foreseeable in light of a particular defendant’s conduct, but rather to evaluate more 

generally whether the category of negligent conduct at issue is sufficiently likely to result 

in the kind of harm experienced that liability may appropriately be imposed . . . .” ’ 

[Citations.] For purposes of duty analysis, ‘ “foreseeability is not to be measured by what 

is more probable than not, but includes whatever is likely enough in the setting of modern 

life that a reasonably thoughtful [person] would take account of it in guiding practical 

conduct.” . . . [I]t is settled that what is required to be foreseeable is the general character 

of the event or harm -- e.g., being struck by a car while standing in a phone booth -- not 

its precise nature or manner of occurrence.’ ” (Kesner, supra, 1 Cal.5th at p. 1145.)

6 We thus also do not address plaintiffs’ argument that the trial court’s reliance on 

the Southern California Gas Leak Cases was misplaced. (Citing Southern California 

Gas Leak Cases, supra, 7 Cal.5th at p. 391.) 
12

Plaintiffs argue the harm was foreseeable because: (1) two federal regulations 

require the district to give public notice when significant problems are anticipated or 

experienced in carrying out the approved water control plan or if there may be a risk to 

life or property; and (2) the district’s “own guidelines, statements and claimed actions 

acknowledge that increased releases would negatively impact people and property below 

the dam.” The district asserts “[t]he trial court properly found that it was not foreseeable 

[plaintiffs] would suffer harm to personal property because they could have taken 

advantage of any of the notification methods offered by [the district], including opting 

into the phone notification system at any time, checking [the district’s] public website for 

release updates, [or] listening for the horn.” 

As our Supreme Court explained in Kesner, the foreseeability of the harm is tied 

to the defendant’s alleged negligent conduct, which here is a dam operator’s alleged 

failure to provide notification to plaintiffs before increasing water releases that damaged 

plaintiffs’ personal property downstream. (Kesner, supra, 1 Cal.5th at p. 1145.) In our 

view, there can be no question it is foreseeable the alleged negligent conduct could lead

to property damage downstream from a dam because individuals might not have 

sufficient time to protect their property.

Degree Of Certainty Plaintiffs Suffered Injury: “[T]he degree of certainty that the 

plaintiff suffered injury, ‘has been noted primarily, if not exclusively, when the only 

claimed injury is an intangible harm such as emotional distress.’ [Citation.] Courts have 

occasionally included under this factor concerns about the existence of a remedy.” 

(Kesner, supra, 1 Cal.5th at p. 1148.) Plaintiffs allege, and there appears to be no factual 

dispute, that their beehives were destroyed by the increased water releases; plaintiffs’ 

damage to personal property is generally considered compensable under the law.

Closeness Of Connection Between The Alleged Negligent Conduct And Plaintiffs’ 

Injury: “ ‘ “[T]he closeness of the connection between the defendant’s conduct and the 

injury suffered[,]” [citation] is strongly related to the question of foreseeability itself.’ ” 
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(Kesner, supra, 1 Cal.5th at p. 1148.) Plaintiffs argue there is no dispute regarding the 

connection between the district’s conduct and the injury suffered because their beehives 

were lost due to the flooding. The district argues “the connection between [its] conduct 

and the alleged damage is attenuated because [plaintiffs] maintain that [the district] had a 

duty to notify the landowners, who in turn had a duty to notify him.” As already 

explained ante, it appears plaintiffs changed their theory as to the duty asserted.

While we disagree with the district’s argument because it does not actually counter

plaintiffs’ theory, we do agree that, although the closeness of the connection of the 

alleged negligence and injury is closely related to foreseeability, the connection in this 

case is somewhat attenuated because plaintiffs admittedly relied only on the landowners 

to relay any notifications to them, and the district had no reason or basis for knowing of 

plaintiffs’ reliance. Even if the district had given earlier telephone notifications to any

landowners who had oral agreements with plaintiffs, or even if such landowners had 

learned of the increased water releases from the district’s website earlier, plaintiffs’ 

ability to avoid injury to their beehives would have depended on the conduct of the thirdparty landowners. Plaintiffs’ reliance on third parties’ actions in that sense attenuates the 

closeness of the connection between the alleged negligence and plaintiffs’ injury.

Moral Blame: The question of moral blame pertains to the defendant’s conduct 

and “can be difficult to assess in the absence of a factual record.” (Kesner, supra, 1 

Cal.5th at p. 1151.) Plaintiffs argue “moral blame is not exclusive to intentional or bad 

faith acts” and includes the failure to take reasonable ameliorative steps to avert the 

foreseeable harm. (Citing Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077.) In 

plaintiffs’ view, the district could have taken various steps to avert the foreseeable harm, 

such as providing “newspaper ads, radio ads, mailings or signs which would identify to 

the public every winter of the availability to join [the district’s] telephone notification 

program.” They further argue “signs could have been posted along the riverbanks 

identifying the water release risks and/or availability to join a telephone notification 
14

system” and the district could “place warning horns on each flow meter in order to 

provide better notice to all portions of the 95-mile-long river rather than just on the dam.” 

The district does not address plaintiffs’ argument and merely argues “there is no evidence 

[the district] acted intentionally or in bad faith.” 

First, it appears plaintiffs are arguing for a duty to notify the public of the 

existence of the telephone notification system, which is not at issue here. Second, 

plaintiffs did not raise this argument in the trial court. They instead argued the district’s 

“already established policy of providing prior notice, if followed, would prevent future

harm” and the district’s “decision not to follow their own policies should expose [the 

district] to moral blame.” (See Martinez v. County of Los Angeles, supra, 47 Cal.App.4th 

at p. 341 [we scrutinize the parties’ briefs and evidence to determine if summary 

judgment was appropriate].) We thus do not address the newly asserted ameliorative 

steps noted in plaintiffs’ brief on appeal.

The record before us does not show the district’s conduct to be particularly 

blameworthy. The district’s alleged existing policy/guideline noted by plaintiffs in their 

opposition to the motion was: “[i]f possible, automated telephone notifications are made 

at least one day before release changes” greater than 1,000 cfs from the dam. (Bolding 

omitted.) The trial court excluded the document upon which plaintiffs relied, which was 

contained in exhibit 2 to the declaration of Dustin J. Dyer. We uphold that ruling in part

II of the Discussion post. Further, even if the document was not excluded, we do not 

believe it demonstrates the district had a policy of providing prior notification. The 

sentence relied upon starts with the words “[i]f possible,” meaning any policy of 

providing automated telephone notifications at least one day before increasing water 

releases is not absolute but rather depends on the circumstances.

There can be no doubt the district’s decisions regarding the volume of water to be 

released from the dam and the timing of such releases require complex scientific analyses 

and determinations. As the district explained, it must make decisions and notifications 
15

regarding water releases based on verified data to ensure the district does not provide 

false notifications to the public, which in turn could impact the public’s future actions in 

response to such notifications in emergencies. There is no admissible evidence in the 

record indicating the district knew of the timing and volume of the water releases at least 

a day before the releases were made or prior to the dates and times when the decisions 

were made. Although the district exercises greater control over the risk of downstream 

flooding, the moral blame as to the asserted lack of prior notification does not point 

toward imposition of a duty.

The Policy Of Preventing Future Harm: “ ‘The overall policy of preventing future 

harm is ordinarily served, in tort law, by imposing the costs of negligent conduct upon 

those responsible.’ [Citation.] In general, internalizing the cost of injuries caused by a 

particular behavior will induce changes in that behavior to make it safer. That 

consideration may be ‘outweighed, for a category of negligent conduct, by laws or mores 

indicating approval of the conduct or by the undesirable consequences of allowing 

potential liability.’ ” (Kesner, supra, 1 Cal.5th at p. 1150.)

Plaintiff asserts “[t]he policy consideration in play is whether a dam operator 

should be required to notify the public prior to releasing water.” The district argues “[a] 

duty of prior notification would help one individual but would have had the opposite 

result for thousands of people who live and work along the Mokelumne River who would 

have been subjected to flooding if [the district] had to delay a release in order to comply 

with a prior notice requirement.” The district believes “[a] duty of prior notice would 

require [it] to go door to door in an effort to locate people storing transient goods or even 

trespassers.” The district posits that “[r]equiring prior notice in every case, regardless of 

other factors that go into [the district’s] decision when to release, could lead to severe 

flooding -- which is the very thing the increase in releases is supposed to prevent.” 

We recognize that imposing a duty to provide notifications before increasing water

releases would make it safer for individuals and property downstream from the dam. But 
16

it may also create undesirable consequences by imposing such liability. Plaintiffs 

essentially argued for notifications to be made at least one day in advance of increasing 

the releases. By tying the district’s hands and imposing a duty of prior notification as 

asserted by plaintiffs, we would undermine the district’s function to use its scientific skill 

and experience to manage the dam and prevent or minimize more severe flooding that 

might otherwise occur. Allowing the district flexibility in making such decisions based 

on the circumstances presented seems prudent and, as already mentioned, there is no 

admissible evidence in the record indicating the district knew of the timing and volume of 

the water releases at least a day before the releases were made or prior to the dates and 

times when the decisions to increase the water releases were made. 

Under these circumstances, we conclude the undesirable consequences of 

imposing liability cuts against finding a duty of prior notification. (See Knight v. Jewett

(1992) 3 Cal.4th 296, 315-320 [danger of chilling participation in active sports justified 

categorical exception to duty of ordinary care for participants’ careless acts toward 

coparticipants]; Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 474-475 [societal 

burden of imposing a duty to guard against fright to a horse when properly using a 

vehicle or machine justifies not recognizing such a duty]; Castaneda v. Olsher (2007) 41 

Cal.4th 1205, 1216-1217 [declining to recognize a landlord’s duty not to rent to gang 

members in light of the burdens that recognizing such a duty would create].)

The Extent Of The Burden To Defendant And Consequences To The Community Of 

Imposing The Duty: “Apart from foreseeability, the chief factor in determining whether 

deliberate conduct may give rise to negligence liability is ‘ “the social value of the 

interest which the actor is seeking to advance.” ’ [Citations.] A duty of care will not be 

held to exist even as to foreseeable injuries, in other words, where the social utility of the 

activity concerned is so great, and avoidance of the injuries so burdensome to society, as 

to outweigh the compensatory and cost-internalization values of negligence liability.” 

(Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 502.) 
17

Plaintiffs argue the district’s “own guidelines, manuals and admissions identify the 

need for proper prior notice to the public” and “[i]f such action in fact would cause an 

impossible burden, then [the district] would not have included it as part of its 

responsibilities.” Plaintiffs also mention a concern “regarding the sufficiency of [the 

district’s] notification system” and believe a material dispute of fact exists as to whether 

the district provided notifications to the public. Plaintiffs further again assert the district 

could have done several things to notify the public of the existence of the district’s 

telephone notification system and could have placed flow meters throughout the 

Mokelumne River. 

The district argues “[c]reating a duty of prior notification to people who may store 

personal property downstream and on the edge of the river is an impossible burden” 

because it “cannot notify everyone who might have an interest without first identifying 

the universe of people who must be notified.” 

There can be no question that flood control operations are of social value and 

allowing an agency tasked with the particular skill and experience to manage such 

operations based on given circumstances has social utility. As already discussed, 

imposing a duty of notification prior to increasing water releases may burden society in

the sense that more severe flooding could occur. 

The Availability, Cost, And Prevalence Of Insurance For The Risk Involved: 

“[T]the tort system contemplates that the cost of an injury, instead of amounting to a 

‘needless’ and ‘overwhelming misfortune to the person injured,’ will instead ‘be insured 

by the [defendant] and distributed among the public as a cost of doing business.’ 

[Citation.] Such allocation of costs serves to ensure that those ‘best situated’ to prevent 

such injuries are incentivized to do so.” (Kesner, supra, 1 Cal.5th at p. 1153.) Where, 

however, as here, the parties have failed to provide sufficient information to settle the 

question of insurance one way or the other, we conclude the insurance factor weighs 
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neither for nor against imposing a duty. (Vasilenko v. Grace Family Church, supra, 3 

Cal.5th at p. 1091.)

In balancing the foregoing factors, we conclude the district owed plaintiffs no duty 

of prior notification before it increased the water releases from the dam.

II

Plaintiffs Have Not Shown The Trial Court Erred 

In Failing To Consider Exhibit 2 Of The Dyer Declaration

Plaintiffs argue, although the trial court’s first tentative ruling on October 6, 2020, 

sustained the district’s objections to several pieces of plaintiffs’ evidence, “in particular 

objections based on lack of authentication,” the trial court erred in failing to consider the 

evidence introduced “by way of the Declaration of Dustin J. Dyer,” because the trial 

court’s January 4, 2021, order omitted any language excluding such evidence. Plaintiffs 

are mistaken.

It is clear from the colloquy between plaintiffs’ counsel and the court on 

October 7, 2020, that plaintiffs’ counsel understood the trial court had sustained the 

district’s objections as to lack of authentication. Indeed, in response to the trial court’s 

statement that it did not “want new evidence submitted” with the supplemental briefing 

on the duty issue, plaintiffs’ counsel asked for “the opportunity to authenticate the 

evidence to show that there is a policy” by taking “the person’s deposition and 

present[ing] that evidence.” Plaintiffs’ counsel made this request because the trial court 

had “just granted [the district’s] objections related to it.” The trial court responded it was 

“not allowing additional depositions and additional evidence and et cetera. This is not a 

redo; it’s not a continuance of this. It’s just a continued hearing, not continuance of the 

motion.” 

During the December 1, 2020, hearing, plaintiffs’ counsel again discussed the trial 

court’s prior evidentiary ruling. Plaintiffs’ counsel requested a continuance pursuant to 

Code of Civil Procedure section 437c, subdivision (h), explaining: “if the court recalls, 
19

much of the denial of evidence is done simply because a lack of authentication, which 

can easily be cured had plaintiff[s] had the ability to take [certain] depositions.” Thus, in 

plaintiffs’ counsel’s view, “the court erred in granting the tentative motion.” 

Based on the foregoing, the trial court and the parties understood the trial court 

had already ruled on the evidentiary objections discussed in the October 6, 2020, 

tentative ruling when the trial court issued the January 4, 2021, order granting the 

district’s motion. Plaintiffs cite no case authority, nor are we aware of any, requiring the 

trial court to issue a “signed order” when it rules on evidentiary objections. Plaintiffs 

further do not challenge the trial court’s lack of authentication ruling as to the exhibits to 

the Dyer declaration. We thus find no basis for reversing the trial court’s evidentiary 

ruling.

III

Plaintiffs Have Not Shown The Trial Court Erred In Denying Judicial Notice

Under the heading “the trial court erred in refusing to consider appellants [sic] 

judicially noticed documents” (capitalization and bolding omitted), plaintiffs argue: 

(1) they “objected to [the district’s] reply declaration for Mr. Todaro” but the trial court 

“failed to rule on these objections and the declarations remained as evidence for the 

motion”; (2) “[b]y allowing [the district] to provide evidence on two occasions while 

denying [plaintiffs] the same opportunity, the Trial Court created an unlevel and 

improper playing field”; (3) “in denying [plaintiffs’] request for judicial notice, the Trial 

Court characterized the judicially noticed documents as evidence which violated the Trial 

Court’s October 7, 2020 order”; and (4) the trial court “acted improperly in treating the 

judicially noticed documents as evidence rather than legal authority.” Nothing in these 

assertions pertain to whether the trial court erred in declining to consider documents 

subject to judicial notice.

Plaintiffs fail to explain with citations to the record and authority why or how the 

documents were appropriate for judicial notice. Further, although they state the trial 
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court’s ruling constituted “prejudicial error,” plaintiffs fail to provide any argument as to

why prejudicial error occurred. We accordingly find no basis for reversing the trial 

court’s judicial notice ruling. 

IV

The Trial Court Did Not Abuse Its Discretion By Denying The Motion To Continue

Plaintiffs contend the trial court abused its discretion in declining their request for 

a continuance because, despite plaintiffs’ failure to adhere to the requirements in Code of 

Civil Procedure section 437c, subdivision (h), the trial court should have undertaken a 

good cause analysis. (Citing Lerma v. County of Orange (2004) 120 Cal.App.4th 709.) 

Specifically, plaintiffs argue the trial court should have granted the continuance to allow 

them an opportunity to authenticate exhibit 2 attached to the Dyer declaration, discussed 

ante. 

At the hearing in the trial court, plaintiffs argued that, if the trial court was 

inclined to grant the motion, it could nonetheless deny the motion and grant a 

continuance pursuant to Code of Civil Procedure section 437c, subdivision (h). The trial 

court denied the request, stating plaintiffs had to submit an affidavit identifying “the facts 

that counsel is seeking to uncover[,] why those specific facts that they are trying to 

uncover are essential to defeating the motion, and why it is [plaintiffs] need more time, 

and didn’t already do this.” The trial court explained plaintiffs failed to meet the 

statutory requirements and it would not stretch the “the circumstances here to fit the 

requirements of [Code of Civil Procedure section] 437.” 

Even assuming the trial court erred in failing to grant the continuance, as plaintiffs 

assert, the problem with plaintiffs’ argument is that they have not shown (or even 

attempted to show) prejudice. (Cal. Const., art. VI, § 13 [no reversal unless “error 

complained of has resulted in a miscarriage of justice”].) Plaintiffs do not explain how 

the authentication of the documents in exhibit 2 of the Dyer declaration would have 

resulted in a more favorable outcome. We do not make arguments for the parties and 
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may disregard conclusory arguments failing to disclose the reasoning by which plaintiffs 

reached the conclusion they ask us to adopt. (United Grand Corp. v. Malibu Hillbillies, 

LLC, supra, 36 Cal.App.5th at p. 153.)

DISPOSITION

The judgment is affirmed. The district is awarded its costs on appeal. (Cal. Rules 

of Court, rule 8.278(a)(1), (2).)

/s/ 

Robie, Acting P. J.

We concur:

/s/ 

Duarte, J.

/s/ 

Renner, J.